Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: McKinnon v Blacktown City Council [2012] NSWADT 44
• Hearing dates: 21 September 2011
• Decision date: 20 March 2012
• Jurisdiction: General Division
• Before: P H Molony, Judicial Member

Decision

1.Set aside the decision of the Agency and instead determine that within 30 days of the publication of these reasons the Agency release to the Applicant a copy of the report subject to deletions as indicated in these reasons.

2.Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.

• Catchwords: Government Information (Public Access) - personal information- confidential information that facilitates the effective exercise of an agency's functions - breach of confidence - information provided to an agency in confidence - personal information - competitive commercial value
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Government Information (Public Access) Act 2009; Freedom of Information Act 1989; Local Government Act 1993; Protected Disclosures Act 1994
• Cases Cited: Alexander v University of Sydney [2008] NSWADT 214; Attorney-General's Department v Cockcroft (1986) 10 FCR 180; Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Department of Education & Training v Mullet [2002] NSWADTAP 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286; Hurst v Wagga Wagga City Council [2011] NSWADT 307; McKinnon v Secretary, Department of Treasury [2006] HCA 45; Neary v State Rail Authority [1999] NSWADT 107; Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227; TW v TX [2005] NSWADT 262; XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
• Category: Principal judgment
• Parties: Michael McKinnon (Applicant); Blacktown City Council (Respondent)
• Representation: M McKinnon (Applicant in person); Sparke Helmore (Respondent); Information Commissioner
• File Number(s): 113164
• Publication restriction: Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.

REASONS FOR DECISION

Background

1 [GENERAL DIVISION (P H Molony, Judicial Member)] On 20 May 2011 the Mr McKinnon made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) to the Blacktown City Council (the Agency) for access to the following information:

"... the report of the alleged irregularities of Blacktown City Council's Chinese interpreter services"

2 Mr McKinnon is a journalist who sought access to the report in his professional capacity.

3 The report is that of an external consultant, SINC Solutions, which was engaged by the Agency to conduct an investigation into and report on, allegations of maladministration and misconduct by an employee of the Agency (the report) in the purchase of Chinese interpreter services for the Agency. The report is dated 13 February 2011. It is marked confidential and was treated as confidential by the Agency, to the extent that the General Manager reported on it to the Council in confidential session. He provided councillors with a revised and edited version of the report.

4 On 2 June 2011, the Agency determined to refuse Mr McKinnon access to the report on the basis that the public interest considerations against disclosure of the information outweighed those in favour of disclosure.

5 O n 27 June 2011, Mr McKinnon made an application to the Tribunal for a review of the Agency's determination.

6 A hearing took place on 21 September 2011 before me. Following that hearing I made orders for the filing of submissions by the parties. The last such submission was received on 16 January 2012.

Material before the Tribunal

7 In making this determination the Tribunal has considered the following material:

• The Agency's decision to refuse access dated 2 June 2011.
• A confidential copy of the report which was provided by the Agency to the Tribunal for the purposes of determining this application.
• Mr McKinnon's affidavit dated 7 October 2011.
• The affidavit of Nicholas James Tyrrell, a Blacktown City councillor, who gave evidence supporting the release of the report.
• The Affidavit of David Mills, the Agency's Manager of Business Assurance and Safety Systems, dated 22 August 2011(the open affidavit).
• A confidential affidavit of David Mills also dated 22 August 2011 (the confidential affidavit).

8 During the course of the hearing the Agency sought to rely on Mr Mill's confidential affidavit under s 107(2) of the GIPA Act. That sub-section provides -

On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

9 I indicated to Ms Tippene, who appeared for the Agency, that I did not consider that all of the evidence in that affidavit was of such a nature that it was necessary to treat its entire contents as confidential. I accepted that there were aspects of the confidential affidavit that did have that character.

10 Ms Tippene sought and was granted time in which to seek instructions on that issue, following which she conceded that not all the evidence in the confidential affidavit needed to be treated as confidential. This resulted in the Agency providing Mr McKinnon and the Tribunal with a redacted copy of the confidential affidavit (the disclosed affidavit).

11 When the disclosed affidavit was provided to Mr McKinnon I again adjourned to enable him to consider it. Before proceeding with the hearing, I confirmed that Mr McKinnon was in a position to deal with disclosed affidavit and proceed. He then cross-examined Mr Mills with respect to the contents of the disclosed affidavit.

The Government Information (Public Access) Act 2009

12 The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

13 "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency." "Agency' is also defined in s 4. It includes "(e) a local authority." Local authority is in turn defined is defined in Clause 1 of Schedule 4 to mean, "a council or county council within the meaning of the Local Government Act 1993 ." The Blacktown City Council is such a council and is therefore an agency to which the GIPA Act applies.

14 The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).

15 With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

"Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information :

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct."

16 There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

"There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."

17 In considering whether there is an overriding public interest against disclosure, s 16 provides that the following principles apply -

"(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information."

18 The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

"The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information."

The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)).

19 The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of " Responsible and effective government " and " Individual rights, judicial processes and natural justice" in the Table to s 14. They are -

"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,

...

(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,

...

4 Business interests of agencies and other persons

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:

...

(c) diminish the competitive commercial value of any information to any person,

(d) prejudice any person's legitimate business, commercial, professional or financial interests,

...

20 Personal information is defined in clause 4 of Schedule 4 -

"(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause."

21 'Reveal' is defined in Clause 1 of Schedule 4 -

" reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

22 Before deciding an access application that, among other things, seeks access to information that includes personal information about a person, or about a person's business, commercial, professional or financial interests , s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). In this case the internal review recorded that each of the individuals whose personal or business information would be disclosed by release of the report objected to the release. That was the only material before the Tribunal concerning those objections.

23 Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides -

"(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application ) into account as provided by this section:

(a) the applicant's identity and relationship with any other person,

(b) the applicant's motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73."

24 An access application is to be determined in accordance with s 58 -

"(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired"

25 In exercising functions under the Act s 3(2) instructs that -

"It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."

26 Section 73 requires that access be unconditional. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides-

"The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

...

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

...

27 Section 74 provides that an agency can delete information in records being released that is irrelevant, or that the agency had decided not release.

28 A person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."

29 In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -

"(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

( 3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."

30 The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it and any applicable written or unwritten law. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

31 Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -

"(1) In determining an application for ADT review, the ADT 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 ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

..."

The Report

32 The report is a lengthy document and is labelled confidential. I have read it carefully.

33 The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in it in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).

34 In considering and balancing the public interests in this case it will be necessary, when explaining some of the conclusions I have reached, to refer in some detail to the contents of the report. Because s 107 prohibits the Tribunal from disclosing any information for which there is an overriding public interest against disclosure, and as both parties have rights of appeal against any determination the Tribunal makes, I will make orders under s 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting, for a period of 30 days, the disclosure to Mr McKinnon and the public of those parts of these which reveal information which the Agency claims is subject to public interests considerations against disclosure. This should enable any party appealing my determination to seek an appropriate stay pending the outcome of any appeal.

Public interests considerations in favour of disclosure

35 Public interests considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.

36 The report is of an investigation into serious allegations of misconduct and maladministration by an officer of the Agency in the purchase of Chinese interpreter services. The following public interest considerations in favour of disclosure apply when considering the report as a whole -

• The general public interest in favour of disclosure of government information.
• Disclosure of the information could reasonably be expected to enhance government accountability.
• Disclosure of the information could reasonably be expected to contribute to positive and informed debate on issues of public importance.
• Disclosure of the information could reasonably be expected to inform the public about the operations of the Agency.
• Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
• Disclosure of the information could reasonably be expected to reveal or substantiate that a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct.

Public interests considerations against disclosure

37 The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Mr McKinnon access to the report, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

38 In submissions the agency identified four public interests considerations against disclosure upon which it relied. They are that disclosure of the information could reasonably be expected to have one or more of the following effects:

• prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (1(d)),
• found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (1(g)),
• reveal an individual's personal information (3(a)),
• diminish the competitive commercial value of any information to any person (4(c)).
• prejudice any person's legitimate business, commercial, professional or financial interests (4(d)).

39 It is necessary to consider each of those public interests considerations against disclosure separately.

Could reasonably be expected

40 There is a requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Coc k croft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

41 Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] -

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." ...

See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.

42 In Flack v Commissioner of Police, NSW Police Force (2011) NSWADT 286 at [41] and [42] the Deputy President Higgins explained -

The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words:

'25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC [1992] FCA 241; (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority . Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.'

That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities.

43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989 . The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] -

.. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation.

44 In my view the weight of authority establishes that it is necessary for 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 as explained in Cockroft and elucidated in McKinnon v Secretary, Department of Treasury .

Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

45 This is found at point 1(d) of the Table to s 14.

46 The Agency relied on Mr Mills' evidence to support this claim, specifically -

• Paragraphs 6 and 7 of the open affidavit.
• Paragraphs 15, 16 and 17 of the disclosed affidavit.
• Paragraph 26 of the confidential affidavit.

47 Annexed to Mr Mill's affidavit was an Agency document entitled Code of Conduct for Blacktown City Council, 6 th Edition (the Code). Among other things this set out the conduct expected by the Agency from its staff. Clause 11 of the Code is concerned with reporting breaches. It requires that suspected breaches of the Code be reported. It includes advice concerning the making of protected disclosures under the Protected Disclosures Act 1994 . It is in this context that the only mention of confidentiality is made. It says , at 11.5 -

If a complaint under this code is or could be a protected disclosure, you must ensure that in dealing with the complaint, you comply with the confidentiality provision of the Protected Disclosures Act 1994 set out in section 22 ...

48 The Code also sets out complaint handling procedures. The General Manager is responsible for investigating alleged breaches of the Code involving staff (clause 12.2). This can be undertaken by a conduct review committee or a reviewer. Where an inquiry is conducted the reviewer is required to make findings (clause 12.20) and may recommend actions (clause 12.21). The reviewer is required to report any findings and the reasons for them to Council (clause 12.22). There is nothing in the Code which deals with the confidentiality of those processes.

49 In his oral evidence Mr Mill described part of his duties as being a "disclosure co-ordinator." He receives protected disclosures and conducts audits and investigations as part of a probity unit. He has been in the role since 2008. He said that in his experience it was council's practice to treat investigations as confidential. He said (T13.42) -

"All public officials have a responsibility to report corrupt conduct.

.... The code of conduct obviously applies an obligation to participate in that transparent process. It's not actually written in that blank way, "You must cooperate with investigations," but it's implied.

50 The disclosed evidence of Mr Mills, relevantly, was that -

• the report is marked confidential;
• the report is being treated as confidential and is stored in a secure location by Council;
• only a limited number of Council officers have had access to the report; and
• Councillors were provided with a version of the report (which did not contain the personal information of any of the individuals to which the report relates) in a confidential session of Council.

51 This latter point was confirmed by the evidence of Mr Tyrrell, a Councillor, who confirmed that Councillors were only provided with an edited version of the report in a closed meeting of Council.

52 In cross-examination Mr Mills was shown an e-mail from himself to the reviewer, dated 22 February 2011, in which he confirmed a request that the reviewer prepare a summary report, removing any references to individual names and the name of the Agency. "The purpose of the report is to assist the general manager prepare a report, suitable for future Council meetings and acknowledging the current political challenges." The following interchange occurred between Mr Mills and Mr Mackinnon with respect to that email-(T17.5) -

Now, Kath Roach was the effectively independent consultant, correct?

THE WITNESS: Correct.

MR McKINNON: And this is an email from you to her obviously as part of that management process of the consultancy?

THE WITNESS: Correct.

MR McKINNON: Is that the case?

THE WITNESS: That's correct.

MR McKINNON: So can you explain what the current political challenges were that you were referring to in that email?

THE WITNESS: I'm referring to the fact that the media were - sorry, the councillors were appearing in the media and therefore reporting that there was all this suspicion and innuendo, and that was a challenge to us because we knew any report that was likely to be tabled that the similar process probably would occur. So I was trying to interpret that process.

MR McKINNON: So did you have discussions with Ms Roach to explain that that's what that term meant in that email?

THE WITNESS: No, because I think she appreciated at that stage what was happening in the media. She had seen the - the news broadcasts. It was fairly common knowledge between those in - in the circle, the general manager, myself and Kath Roach, as to what was going on, and I think in terms of when I was asked to

talk to Kath that the request was to obviously get the summary reports which was just a bit more thinned down, trying to remove some confidential information, and then she said could I just confirm that in an email so that she had a record of being

requested to do more work. So that email was just a follow up process.

53 Mr Mills' said that he had always given full and frank advice in the course of his work in local government. He said that not to do so would be "unprofessional." He agreed that one should expect a bureaucrat to provide full and frank advice. He said he was not aware of anyone not giving such advice, adding that if he knew some had not given full and frank advice, "I would have to report that." He could not point to a single case where "someone had withheld information for fear of anything." The following interchange then occurred between Mr Mackinnon and Mr Mills concerning his assumption that Council officers would be reluctant to disclose information if they thought it might later become public (T21.8) -

MR McKINNON: Okay. So in forming your opinion in paragraph 10 really it's a fear, your fear or an apprehension, that you have no evidence that that's ever happened, do you?

THE WITNESS: No, it's my - my perception of working relationships - - -

MR McKINNON: Okay, but - - -

THE WITNESS: - - - and trust within the organisation. I've been there for a long time. People do work with me and do trust me. I wouldn't like to lose that trust because it could perhaps interfere in some future process.

MR McKINNON: And, look, I can understand why you might consider that's the case, but you have no evidence - - -

THE WITNESS: No.

MR McKINNON: - - - in your entire working career of someone acting in the way you're suggesting in paragraph 10?

THE WITNESS: No.

MR McKINNON: Okay. So would it be fair for me to then conclude that there's no real rational basis for your view?

THE WITNESS: I guess you're entitled to conclude whatever you like. I still stand by what I say.

MR McKINNON: Yes, but what I'm suggesting to you is there's no evidence to support your contention?

THE WITNESS: That's consistent, I think, with what I said there's no evidence.

MR McKINNON: Yes, understood. That's fine.

THE WITNESS: That's my view.

MR McKINNON: That's great. I just want to think very carefully about this. Is there any other issues or factors that you contemplated when you formed that opinion

in paragraph 10?

THE WITNESS: Not anything that comes to mind.

MR McKINNON: Okay. Now, you, as you say, work very closely with councillors - sorry, with your staff, and you're involved in code of conduct issues. In those code of conduct issues has anyone failed to voluntarily cooperate because of fear of their names might be released or disclosure of their names?

THE WITNESS: No, I've never had anyone that's not prepared to talk to me.

MR McKINNON: Yes.

THE WITNESS: Generally, people are supportive because they want to see wrongs righted as well.

MR McKINNON: Yes.

THE WITNESS: They generally work in a cooperative way, but we do make sure that we treat them respectfully in the process.

MR McKINNON: Understood. Because an employee has an understanding that they've got an obligation to cooperate and assist you with these investigations, don't they?

THE WITNESS: Well, there's that implied code of conduct expectation.

MR McKINNON: Yes.

THE WITNESS: Yes, I would agree with that.

54 The Agency also relied on the decisions in Department of Education & Training v Mullet [2002] NSWADTAP 13, Alexander v University of Sydney [2008] NSWADT 214 and TW v TX [2005] NSWADT 262 to advance a proposition that "the confidentiality of information communicated by officers of agencies in the course of an internal investigation can be inferred from all of the circumstances."

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.

56 In the open affidavit Mr Mills expressed the opinion that disclosure of the report would impede the ability of the Agency to obtain and rely on such information in the future. He explained that he considered it "reasonable to assume that other council officers will be reluctant to report misconduct or inappropriate behaviour in future, for fear of reprisal." In my view the cross-examination of Mr Mills demonstrated that he had no reasonable basis for holding this opinion, and that the assumption was not reasonably held. He had no experience of anyone withholding information that they were duty bound to disclose, whether for fear of reprisal or otherwise.

57 Additionally, Mr Mills gave evidence that all the investigations he had been associated with had been treated as and kept confidential. As a result he has no experience of investigations where confidentiality has not been maintained. A consequence is that, in the formation of his opinion, he did so from the basis of having no experience he could contrast with the confidential treatment he was used to.

58 His concern that staff will be reluctant to provide information in the future, therefore, is not based on experience or informed by fears voiced by him or other council staff. It is not based on a rational, underlying factual basis. Indeed his evidence in cross-examination points to conclusion that he has no reasonable or rational basis for the opinion he expressed. The assumption he relies on takes a very dim poor of the integrity of council staff, which is entirely at odds with his own experience. I do not accept his opinion.

59 That, however, is not the only basis upon which the Agency asserts that release of the report could be reasonably expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.

60 Not for publication

61 Not for publication

62 Not for publication

63 Not for publication

64 Not for publication

65 Not for publication

66

Not for publication

Found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

67 For the reasons outlined above I am also not satisfied that release of the report could be reasonably 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.

68 Not for publication

69 There is no evidence that information in the report was provided to the Agency under an express or implied pledge of confidentiality. As a result the report could be reasonably 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.

Reveal an individual's personal information

70 Personal information is defined in Clause 4 of Schedule 4 of the GIPA Act. It provides:

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

71 The report contains information about:

• Mr Farrell - including his conduct as an employee of the Agency, his relationship with the interpreter, both work related and private; opinions about that conduct expressed by the reviewer; and, as to his family circumstances and relationships.
• The Interpreter- including her conduct as a contractor for the Agency, her relationship with Mr Farrell, both work related and private; opinion about that conduct express by the reviewer; and, about her family associations and relationships.
• Other employees of the Agency who are identified by their names, functions, and present employment status with the Agency.

72 In my view the information which concerns Ms Farrell's and the interpreter's private relationship and that reveals their family circumstances and relationships is personal information within the meaning of clause 4. Their names and the functions they performed for the Agency are not personal information by virtue of clause 4(2)(b).

73 Both the Agency and the Information Commissioner in their submissions have referred to a series of cases decided under the Freedom of Information Act 1989 dealing with what has been described as the "grey area" under the legislation concerning when and whether information relating to work performance and conduct concerned a person's "personal affairs". As the was pointed out in Stewart and Department of Transport [1993] QICmr 6 ; (1993) 1 QAR 227, the body of jurisprudence which has developed concerning the question arose from the fact that there was no definition of personal affairs contained in the FIO Act: see also Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25. This is not the case under The GIPA Act. There is a definition of personal information. In my view information and opinion about the conduct of employees or contractors of the Agency in the course of undertaking their duties, whether or authorised or not, is personal information within the meaning of the GIPA Act.

74 As a consequence I agree with the Respondent that the release of the report could be reasonably expected to reveal the personal information of a number of individuals.

Diminish the competitive commercial value of any information to any person

75 The Agency submitted that -

The report contains the commercial information of a contractor engaged by Council to provide translation services, including the contractor's hourly rates, and contains information about Council's yearly expenditure on translation services and budgets for future services. Council submits the disclosure of this information could reasonably be expected to diminish the competitive commercial value of the information ...

76 Mr McKinnon, on the other hand, argued that because the interpreter's services were known to have been engaged without a competitive tender process there could be no commercial value to it.

77 The Information Commissioner submitted that -

65. "Competitive commercial value" is a new phrase in right to information legislation. Under right to information legislation in other jurisdictions, "commercial value" has been defined in a number of ways, including:

(i) "if [the information] is valuable for the purposes of carrying on the commercial activity in which the entity is engaged" ( Sitel and Employment Advocate (2005) 40 AAR 552 at 561. Cf Cannon and Australian Quality Egg Farms Ltd (1994) QIC 94 at 16);

(ii) "if a genuine arms-length buyer is prepared to pay [to] obtain the information" ( Sitel and Employment Advocate (2005) 40 AAR 552 at 561, citing Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491,

(iii) "capable of being described as commercial in character' (Mangan and the Treasury [2005] AATA 898 [36]).

66. In Cannon and Australian Quality Egg Farms Ltd the Qld Information Commissioner said (at 122) in relation to the meaning of "commercial" that:

[t]he common link is to activities carried on for the purpose of generating income or profits. I refer to income because some government agencies are established to provide goods or services to the community for a fee, but with no expectation of ever generating profits: rather the aim is to pursue some government policy objective...There is arguably a strong public interest in access to information about government activities of this kind on the basis

that taxpayers who are called upon to subsidise such quasi-commercial activities should be informed about strategies and costs.

67. In addition, the following has been found to affect commercial value:

(i) commercial value may expire with the passage of time (see, eg, Re Brown and Minister for Administrative Services (1990) 21 ALD 526 at 533);

(ii) the commercial value of information which is publicly available cannot be diminished by disclosure (Re: Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714 at 724, cited in Cannon and Australian Quality Egg Farms Ltd ).

68. In Cannon and Australian Quality Egg Farms Ltd , the Qld Information Commissioner said that the respondent must show why and how the information has commercial value for the respondent, including "the commercial context in which [the respondent] operates, and the significance of the information in that context" and "that there is a reasonable basis for the expectation" that disclosure would diminish that value (at 18).

78 I agree with those submissions.

79 The public interests considerations against disclosure upon which the Agency relies, however, requires the Agency demonstrate that it could be reasonably be expected that disclosure of the information would diminish the competitive commercial value of any information to any person. The words "commercial value" are modified by the adjective "competitive".

80 The Macquarie Dictionary On Line defines competitive thus -

adjective of, relating to, involving, or decided by competition: competitive examination.

"Competitive commercial value" therefore connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.

81 At paragraph 12 of the open affidavit Mr Mill's said -

The Confidential Report contains commercial information of both Council and the contractor engaged by Council to provide translation services. The information is commercial-in-confidence and is not publicly available. I consider the disclosure of this information could impact on both Council and the contractor's business affairs.

82 In evidence Mr Mill's said that in February 2011 the Agency had called for expressions of interest for the provision of interpreter services, and had established interpreter panels, who now tender for work. The allocation of work was informed by the Agency's knowledge of market rates derived from the expressions of interest.

83 In cross-examination Mr Mills said that the interpreter whose services were considered in the report was a member of one of the present panels. The following interchange occurred (T22.30) -

MR McKINNON: Is there some reason why there's not evidence from the contractor about that damage to their business affairs?

THE WITNESS: Well, it's not my role to extract evidence from other parties. I'm not sure where that question leads to.

MR McKINNON: Well, it's simply this, that - - -

THE WITNESS: But it's my view that the contractor continues to work in the market; they work for us. They are one of the three people on the panel, and I'm assuming they're looking for work elsewhere because the work they have from us is significantly diminished, so obviously their income has now shrunk. I'm assuming reputation therefore is fairly valid in that type of work and there could be some potential threat to that contractor in that risk environment.

MR McKINNON: Okay.

THE WITNESS: I guess that's my thought processes on that.

MR McKINNON: And I'm not in any way critical of that thought process except you say you assume a number of points there. You're making those assumptions in the absence of any information from the contractor; is that the case?

THE WITNESS: Yes, correct. I have not spoken to the contractor first up.

MR McKINNON: Not spoken to the contractor. Where you say that disclosure would impact on the council's business, why do you have that view?

THE WITNESS: The relationships we have with our sister cities are ones we seek to continue with. Obviously we don't wish to damage publicly those relationships. And, secondly, there's probably an issue about expenditure that we try and keep that sort of information commercial in confidence. We wouldn't like to tell the other people on the interpreter panel what sort of money we spend or what we have spent. So that sort of information is the sort of information we keep fairly confidential.

MR McKINNON: Okay. So - - -

MR ..........: Sorry, can I just interrupt? Can you just go back to that first - I don't think I quite followed your first reason. Can you just clarify it for me.

THE WITNESS: Well, we have sister cities overseas and also in Australia. This is particularly about overseas sister cities so I will go there, but they're relationships that continue. Working with overseas countries it's very much about relationships and, you know, the processes that you put in place and it's about how we could damage those if there was any sort of negative community impact about, you know, that work in the past.

MR ..........: But this in the context of damaging the council business affairs. That's how you see it?

THE WITNESS: Well, we would like those relationships to continue in that sense. I don't see a commercial value, you know dollar value, in terms of making money. We certainly are building a Chinese garden and things for the future, so there's relationships going on, and exchanges and trips for each, you know, parties to go overseas and work about - on how they deal with things. I see that as part of our business environment.

84 The Agency submitted that the report contains details of its yearly expenditure on translation services, and budgets for future services. Having read the report I agree it contains details of past expenditures of translation services, before it called for the expressions of interest for the provision of those services. I reject the submission that it contains details of future budgets. Given that the expenditures revealed by the report relate to the years up to and including 2010 that were not the result of a competitive process, and that the Agency has since adopted a new and competitive method of purchasing interpreter services, I do not accept that it can be reasonably expected that the release of the report would diminish the competitive commercial value of the information to the Council. This is so because those services were not purchased in a competitive context; the information is old; and, because a new and unrelated method for the purchase of those services has since been adopted.

85 Mr Mills identified two matters which he considered justified the claim that release of the report could be reasonably expected to diminish the competitive commercial value of any information to any person. The first of these was the release of the information "could" harm the interpreter's business affairs, noting that she is part of the present panel. He did not identify what information he was referring to. When asked about this he identified information which might harm the interpreter's reputation. This does not equate to a diminution in the competitive commercial value of the information.

86 Next he expressed the view that release of the information could have an adverse impact on the Agency's relationship with its sister cities. He was not able to demonstrate how this would occur. In any case an adverse impact of relationships of that sort, does not equate to a diminution in the competitive commercial value of the information.

87 As I result I am not satisfied that release of the report could be reasonably expected to diminish the competitive commercial value of the information to any person.

Prejudice any person's legitimate business, commercial, professional or financial interests

88 The Agency submitted that release of the report would -

• Reveal the hourly rates charged by the interpreter and could reasonably be expected to prejudice interests, by providing an advantage to thirds parties when negotiating hourly rates with the contractor.
• Reveal the Agency's expenditure on external translation services provided, hourly rates charges, actual amounts paid and proposed budgets for future translation services to Council. This, it was said, could reasonably be expected to impact on those affairs, prejudicing Council's ability to negotiate more favourable rates for future services.

89 I accept that release of the report would reveal the fees paid by the Agency to one interpreter for the provision of interpreter services in the years leading up to 2011. I do not accept that release of the report would reveal future budgets for purchase of translation services.

90 Since the report was completed, the Agency has called for expressions of interest for the provision of interpreter services and put in place a number of competitive panels form which it purchases those services. The Interpreter has participated in the process and is a member of one of the panels.

91 Because that process has been completed and put in place I do not agree that it could be reasonably expected that release of the report will prejudice the legitimate business, commercial, professional or financial interests of the Agency or the Interpreter. I accept that, before the new purchasing process was put in place, that the information was sensitive and that it could be argued that release of the information could be reasonably expected to prejudice the legitimate business, commercial, professional or financial interests of the Agency or the Interpreter. The new process being place, with new pricing structures, makes the information of historical interest and no longer sensitive.

92 I do not accept that it can be reasonably expected that release of the report will prejudice any person's legitimate business, commercial, professional or financial interests.

Balancing the public interests

93 I have found that release of the report could be reasonably expected to reveal an individual's personal information. This is a public interests consideration against disclosure.

94 The personal information can be regarded as being in three categories. They are:

• Personal information relating to performance of an employee and a contractor of the Agency with respect to the conduct of their respective duties.
• Personal information relating to the private relationship between that employee and contractor.
• Personal information relating to other individual private affairs of the employee and contractor and their families.

95 In my view, given the nature of the personal information, the last of these factors requires considerable weight. The information relating to the individuals private and family affairs was provided incidentally and is not directly related to the matters in the report. The first factor, on the other hand, directly relates to the matters under investigation, while the second factor provides context to those matters. While they each merit weight, I do not think that weight allocated to the first and second factors should be equivalent to that which the details relating to private affairs and family relationships require.

96 I note that in submissions the Agency has advised that the individuals whose personal information is revealed in the report oppose release of that information. I accept that is the case.

97 That public interest consideration against disclosure is to be weighed against the public interests considerations in favour of disclosure that I have identified.

98 In undertaking that task it is important to remember that the report deals with allegations of maladministration and misconduct by an employee of the Agency in the purchase of Chinese interpreter services for the Agency from the Interpreter. This is matter which has been the focus of considerable public attention and debate.

99 Mr Tyrrell in his evidence said that as a member of Council he had been given access to an edited copy of the report in a confidential session of Council. He said that this caused him some frustration (T35.39) -

... And I also have a very strong view that given the amount of money that it's alleged was the subject of the maladministration

accusations, and given the period of time in which it went undetected, that there's a - there's a very strong case in my opinion, and I felt - I felt somewhat frustrated that - that the information was provided to me but it wasn't in my - it wasn't within my power to then, you know, make that available to the public. You know, it doesn't matter what - what level of information, but there was very little scope for me to - to improve the transparency at council when it deals with these kind of matters because everything was lumped into - into, you know, a confidential report. So that - that's - that's my perspective.

100 He said he had grave concerns about the lack of accountability that maintaining the veil of confidentiality of the report created. This had frustrated his role as an elected Councillor. He explained (T36.5) -

... when it comes to the tender of a you know, of a contract for, you know, asphalt or road building or that kind of thing,

obviously there's going to be a commercial in confidence kind of consideration so I'm not - you know, in instances like that it's certainly not, you know, in the council's interest for me to go around discussing that with the general public, but when it

comes to a matter like this where by my understanding there was no tender process undertaken, where there was no formal arrangement in place for some time, where there was, you know, grave claims of - of - well, claims of grave maladministration

that involved the resignation or, in my opinion, forced resignation of a director of council, it involved the resignation on the day the report was received back - back council officers, the person at the centre of the allegations mysteriously or conveniently resigned on that day. So a good month or six weeks before councillors

actually got to see the report. The day it was received back at council chambers, or in the council building by the executive, that person in the middle of the - in the middle of the whole scandal resigned. So my - my feeling on the matter, my - my

strong opinion on the matter, is that if council officers have been able to see this report, if - if councillors have been provided with only, you know, a limited version of the report, and then even then it's not subject to public scrutiny, then there's a real issue there for - for - you're right, for democracy, because let's face it it's only the

elected representatives of council that get - they get turfed out by - by - by voters.

101 Given that the report is concerned with maladministration and misconduct by an employee of the Agency and has been the subject of considerable public discussion and media attention, I think that the public interest considerations in favour of disclosure deserve significant weight. Release of the report would inform the public about what has actually occurred, and at what public cost. It could be reasonably expected to focus attention on accountability mechanisms with the Agency, improve the transparency of tis operations, and expose evidence of maladministration and misconduct within the Agency.

102 On balance, the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information concerning the conduct of the employee and contractor and concerning the private relationship between them, which provides context to the former.

103 I am not persuaded, however, that the public interests considerations in favour of disclosure outweigh the public interest against disclosure of personal information relating to other individual private affairs of the employee and contractor, and their families. That personal information was provided incidentally and does not add to, and is not relevant to, the substance of the report.

104 I consider that this latter material can be readily deleted form the report under s 74 of the GIPA Act.

105 I have scanned the confidential copy of the report to PDF, and have deleted from it those portions that I consider should not be released. A copy of that document will be provided to the agency along with this decision. In doing so I have not scanned the final attachment of the report. I consider that it does not contain any information relating to the personal affairs of any individual. It should be disclosed without deletions

Orders

106 I consider that the correct and preferable decision in this matter is to -

• Set aside the decision of the Agency and instead determine that within 30 days of the publication of these reasons the Agency release to the Applicant a copy of the report subject to deletions as indicated in these reasons.
• Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68 of these reasons not be disclosed to the Applicant, the Information Commissioner or the public

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Decision last updated: 20 March 2012