Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: AMH v Western New South Wales Local Health District [2013] NSWADT 282
• Hearing dates: On the papers
• Decision date: 05 December 2013
• Jurisdiction: General Division
• Before: P H Molony, Judicial Member

Decision

1) The decision of the Agency with respect to all the information in issue, apart from document 31, is confirmed.

2) With respect to information in document 31 the decision is set aside and in lieu thereof that Tribunal determines to give the Applicant access to that information (with the exception of email addresses) 30 days from the date of this order.

3) Paragraphs 30, 62 and 73 of these reasons are not to be disclosed to the Applicant, the Joined Party or the public and shall not be published.

4) I note that the orders made by the Tribunal on 31 October 2012 prohibiting the disclosure or publication of the identities of the individuals who are parties to this proceeding remains in force.

• Catchwords: Government information public access - access to information - confidential information - personal information -
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Government Information (Public Access) Act 2009; Freedom of Information Act 1989; Freedom of Information Act 1982 (Cth).
• Cases Cited: AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90; Attorney-General's Department v Cockcroft (1986) 10 FCR 180; Black v Hunter New England Local Health Network (No 2) 2012 NSWADT 235; Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Ermel v Department of Finance and Services [2013] NSWADT 183; Hurst v Wagga Wagga City Council [2011] NSWADT 307; McKinnon v Nepean Blue Mountains Local Health Network [2012] NSWADT 86; McKinnon v Secretary, Department of Treasury [2006] HCA 45; XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
• Category: Principal judgment
• Parties: AMH (Applicant); Western New South Wales Local Health District (Respondent); AMI (Joined Respondent)
• Representation: Counsel; P Ginters (Respondent); Bird Legal (Applicant); Henry Davis York (Respondent); AMI (Joined party - in person)
• File Number(s): 123198
• Publication restriction: S75 Administrative Decisions Tribunal Act 1997 applies to Paragraphs 30, 62 & 73

REasons for decision

Introduction

1 AMH has made an application to the Tribunal to review a decision made by the Western New South Wales Local Health District (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 12 July 2012. AMH is an employee of the Agency. AMH had sought access to -

All documentation in relation to an outside contracted solicitor [name] regarding a complaint of bullying and harassment against [AMH] and documents prior to an interview conducted on 7/03/08 and in particular the report which followed her investigation.

2 Following receipt of that report the Agency warned AMH. Her application therefore sought access to the information and report that led to that action being taken. She considers that considerations of justice and of fairness require that she see what was alleged against her, and by whom those allegations were made. As a consequence she applied to access the information unde the GIPA Act.

3 In its initial decision under the GIPA Act the Agency refused AMH access to some of the information she sought.

4 AMH then applied for review of that decision by the Office of the Information Commissioner. On 22 June 2012 the Information Commissioner recommended that the Agency reconsider its decision.

5 On 18 July 2012 AMH applied to the Tribunal to review the decision of the Agency, at which time the Agency had not completed its reconsideration. AMH was entitled to seek external review by the Tribunal at that time under s 101(2) of the GIPA Act.

6 The Agency completed its reconsideration on 23 August 2012. It released the report with redactions of those parts of the report that contained information to might identify employees of the agency, who had provided information to the investigation, and of information that might enable to identify of those persons to be ascertained. It refused AMH access to transcripts of interviews with those employees.

The Government Information (Public Access) Act 2009

7 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.

8 "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.'

9 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).

10 With respect to other government information, the Act establishes a principle that there is public 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

11 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.

12 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.

13 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.

14 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)). The Office of the Information Commissioner has issued Guideline 4 - Personal information as a public interest consideration under the GIPA Act. Section 15(b) requires that decision makers have regard to guidelines.

15 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," "Individual rights, judicial processes and natural justice" and" Business interests of agencies and other persons" in the Table to s 14.

16 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.

17 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).

18 Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, 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 staff of the agency who were the subject of Mr Hurst's complaints object to their personal information being disclosed.

19 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.

20 An access application is to be determined in accordance with s 58. 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.

21 Section 73 requires that access be unconditional.

22 In any review of a reviewable decision by this Tribunal 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.

23 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.

24 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.

(3) On an ADT review, the ADT 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 the ADT 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.

25 In the present case the Agency has relied on the provisions of s 107 to make confidential submissions to the Tribunal and to rely on confidential evidence that has not been disclosed to AMH. The nature of that material is discussed below.

26 In writing this decision it has proved necessary, in order to explain my reasoning, to refer to some of that confidential material in a manner that, if released to AMH, would disclose some the information that the Agency claims is subject to an overriding public interest consideration against disclosure. As a consequence, I will make orders under s 75 of the ADTA restricting the disclosure of those parts of my decision to AMH and to the public.

27 The full unrestricted reasons shall be provided to the Agency and shall remain on the Tribunal file and be available to an Appeal Panel.

28 I was and remain satisfied that AMH's review application can be adequately determined on the papers.

Material before the Tribunal

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

• The initial decision made by the Agency under the GIPA Act dated 4 July 2011.
• The review report of the Office of the Information Commissioner dated 22 June 2012.
• AMH application for ADT Review dated 18 July 2012.
• The further decision of the Agency made by Pamela Gulbis on 23 August 2012.
• The Affidavit of AMH dated 25 February 2012 with attachments.
• AMH submissions filed 29 May 2013..
• Open and confidential statements of AMI dated 4 December 2012.
• Open and confidential statements of AA dated 6 December 2012.
• Open and confidential statements of BB dated 7 December 2012.
• Open and confidential statements of CC dated 7 December 2012.
• Open and confidential statements of DD dated 11 December 2012.
• Open and confidential statements of Pamela Gulbis dated 5 December 2012.
• Open statement of Sandra Duff dated 7 December 2012.
• Affidavit of Vanessa Louise Anderson, solicitor, undated.
• The Agency's open and confidential submissions dated 30 April 2013.
• The Agency's open and confidential submissions dated filed 4 June 2013.
• Confidential copies of the material in issue .

30 Not for publication

31 In addressing the issues raised in this mater it is important to understand that the information to which AMH seeks access from the report and the transcripts of interview substantially duplicate each other. Generally speaking, those parts of the report that have been redacted either identify the names of employees who were interviewed during the course of the investigation, or discuss aspects of their evidence to the investigation (from the transcripts) that it is said could reasonably lead to their identity being ascertained. As a result, when addressing the Agency's claims with respect to the information in issue, when referring to information that might identify a given individual, I shall refer to it as their materials (e.g. BB's material), which should be read as a reference to that person's transcript of interview and information that may reasonably lead to their identity being ascertained in the report.

32 In addition to the report and transcripts, AMH seeks access to written communications from employees of the Agency concerning her conduct, which she has been refused access to (documents 28 to 31).

33 AMH also seeks release of those portions of documents 8 to 19 that were redacted, when those documents were released to her. Those documents concern the course of the investigation and include letters of complaint, a table of events, terms of reference and correspondence with employees. The redactions identified the employees concerned.

Public interest consideration in favour of disclosure

34 The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information to which AMH seeks access in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest considerations 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. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).

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 In my view the following public interest considerations in favour of disclosure apply when considering the information AMH's seeks -

• The general public interest in favour of disclosure of government information.
• That the information includes some personal information of AMH
• Disclosure of the information could reasonably be expected to enhance government accountability in the management of it its human resources.
• Disclosure of the information could reasonably be expected to inform the public about the operations of the Agency, particularly its management of employee discipline and issues relating to bullying at work.
• Disclosure of the information could reasonably be expected to contribute to the administration of justice, including procedural fairness.
• Disclosure of the information could reasonably be expected to reveal or substantiate that a member of an agency has engaged in misconduct or improper or unlawful conduct.

Public interest 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 AMH access, 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 seven public interests considerations against disclosure upon which it relied. 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,

...

(f) prejudice the effective exercise by an agency of the agency's functions,

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual's personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

...

(f) expose a person to a risk of harm or of serious harassment or serious intimidation,

...

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:

...

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

...

Could reasonably be expected

39 Mention must be made of the 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 Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words -

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

See also Black v Hunter New England Local Health Network (No 2) 2012 NSWADT 235 at [45].

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

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act.

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

41 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.

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

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

43 In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel outlined the general approach to be adopted in determining whether or not information was confidential information.

In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.

44 In the present case the Agency argues that all of the information provided by employees to the investigation was provided on the understanding that is was confidential. In this regard I note that each of the witnesses who was interview during the investigation was told in a letter (see documents 8 to 14) requesting them to participate that -

The investigation process is confidential and is not to be discussed with any person with the exception of your support person. It would be a breach of confidentiality possible subject to disciplinary process, if you or other staff breach the confidentiality of the matter being investigated.

45 Attached to Ms Duff's affidavit was a copy of a NSW Heath Police Directive called Disciplinary Process in NSW Health - A Framework for Managing. This sets out the procedures and process to be followed when conducting disciplinary investigations and taking disciplinary actions against employees. Paragraph 3.2.3 provides that -

The person against whom the alleged breach of discipline is made has a right to access relevant information taken into consideration by the decision maker prior to the making of a decision (eg letters of complaint, statements made by other staff members and/or patients, relevant incident reports, transcripts of relevant interviews etc). However, in some circumstances it is appropriate to limit access to some information (eg where a breach of discipline has been raised under the Protected Disclosures Act). Health Services may wish to consider releasing information from third parties only following formal consultation (e.g. under the conditions of the Freedom of Information Act 1989).

46 The GIPA Act has replaced the Freedom of Information Act 1989. There is no suggestion that any of the information which the Agency asserts is confidential was the subject of a public interest disclosure. All of the employees who were interviewed for the purposes of the investigation, however, assert that they only spoke on the understanding that what they said would be treated confidentially and would not have done so if that were not the case. They point with concern of the difficulties they may experience at work if the information is released.

47 In the light of the evidence I accept that the information contained to which AMH seeks access, apart from those in documents 29 and 31, was provided confidentially. I also accept that release of that information could be reasonably be expected to have an adverse effect on the Agency's future management of human resource issues requiring disciplinary investigations, and on the day to day operations of the agency.

48 Documents 29 and 31 both pre-date the investigation and relate to matters not the subject of the complaint which precipitated it. There is no evidence that they were supplied confidentially.

To result in the disclosure of information provided to an agency in confidence

49 This is found at point 1(g) of the Table to s 14.

50 Given that I have already found the all the information apart from that contained in documents 29 and 31 was provided to the Agency in confidence, I make a similar finding with respect to this public interest consideration against disclosure.

To reveal an individual's personal information

51 Personal information is defined in clause 4 of Schedule 4 of the GIPA Act -

(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.

52 Having read all the information in issue it is clear that it contains -

• Personal information relating to each of the individual employees of the Agency who communicated with the investigation, whether orally or in writing. This not only consists of their names, addresses, qualifications etc., but also information concerning their interpersonal relationships with other employees of the Agency including AMH, and in some cases evidence of their personal circumstances.
• Personal information relating to AMH including opinions about her expressed by others. Some of those opinions, in the context they appear, enable the identity of the person who holds them to be ascertained.

53 It follows that I am satisfied that release of the information could be reasonably expected to reveal the personal information of persons other than AMH.

To contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

54 The definition of personal information in the Privacy and Personal Information Protection Act 1998 (PPIPA)relevantly is -

(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 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) ...

(j) information or an opinion about an individual's suitability for appointment or employment as a public sector official,

(ja) ...

(4) For the purposes of this Act, personal information is held by a public sector agency if:

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

(5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.

55 Section 18 of PPIPA contains the information protection principle relating to disclosure. It provides -

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

56 At paragraph 52 above I found that the information in issue contained a mixture of personal information under the GIPA Act relating to AMH and other individuals. I reach the same conclusion with respect to personal information under PPIPA. I am satisfied that release of the information, insofar as it relates to persons other than AMH, could reasonably be expected to contravene s 18 of PPIPA.

To expose a person to a risk of harm or of serious harassment or serious intimidation

57 This is found at point 1(d) of the Table to s 14. I had occasion to consider it in AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 (since followed in Ermel v Department of Finance and Services [2013] NSWADT 183), where I said at [83-94] that -

83,The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus -

noun 1. injury; damage; hurt: to do someone bodily harm.

2. moral injury; evil; wrong.

-verb (t) 3. to do harm to; injure; damage; hurt.

-phrase 4. in harm's way, in danger.

5. out of harm's way, out of danger.

[Middle English; Old English hearm]

....

84 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing.

86. Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass -

verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.

2. to disturb persistently; torment.

[French harasser, from Old French harer set a dog on]

87. The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).

88. In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] -

6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary).

89. All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.

90. The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related.

91. Intimidation is defined by The Macquarie Dictionary online as -

verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow.

2. to force into or deter from some action by inducing fear: to intimidate a voter.

[Medieval Latin intimidātus, past participle, made afraid. See TIMID]

92. Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus -

(1) For the purposes of this Act, intimidation of a person means:

(a) conduct amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

93. In PE V MU [ 2010] NSWDC 2 William DCJ referred to that definition and said -

15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety.

16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ...

94. Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.

58 In the present case each of the employees who were interviewed during the course of the investigation have expressed concern as to what might occur if AMH becomes aware they did so and of what they said. AMH denies that she has any intention of taking "any sinister actions" aimed at persons who provided information to the investigation. She suggested that she already knows who those people are (without naming them) and suggests that the fact that she has taken no actions against them is indicative of her present intentions. It is nonetheless clear from AMH's statement that she believes that information given to the investigation was "inaccurate and misleading" and that when she identifies who provided that information -

I anticipate on commencing proceedings that will correct the record and remove those inaccuracies which are recorded against my name, and will attempt to remedy those wrongs that have been occasioned against me.

59 At a planning meeting held in December 2010 I inadvertently mentioned the name of one of the employee who spoke with the investigation and who had written to the Tribunal asking to be joined to the proceeding at that time. Ms Anderson, the solicitor for the Agency has filed an affidavit in which she has outlined her observations of AMH when that occurred. There is no dispute that AMH said, "Well, I will talk with her on Monday." There is a dispute about her body language at the time. AMH in her affidavit explained -

I say that at no time did I make the comment in a stern, forthright or challenging manner. I say that I had no reason to be surprised or aggravated by the mentioning of this persons name and I say that I did not move my seat towards the table in a curt and forthright manner.

I say that I made the comment referred to in paragraph 41 as an acknowledgement that the person referred to by Judicial Member Maloney is a very good friend and colleague of mine and in reference to the fact that I see this person almost on a daily basis, I was simply referring to the fact that I will see her on Monday.

60 I do not accept AMH's evidence in this regard. Her explanation of the words she uttered, in the context in which they were uttered, is both implausible and artificial. In the context I understood them to be a clear statement of AMH's intention to approach the person concerned to discuss the investigation. Given the allegations of serious bullying and harassment by AMH considered by the investigation and documented in its report, AMH's "Well, I will talk with her on Monday" takes on a more sinister and concerning aspect. One that lends weight to the concerns expressed by employees of the Agency, who interacted with AMH, regarding the potential for further serious bullying and harassment.

61 In the light of all the evidence I accept that one could reasonably expect that release of all the information in issue could reasonably be expected to expose persons to a risk of serious harassment or intimidation. The exception to this is document 31.

62 Not for publication

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

63 This is found at clause 4(d) of the Table to s 14.

64 The Agency submits that release of the information could reasonably be expected to harm the legitimate professional interests of the individuals involved. Each of those individuals, while holding qualifications in their professions, are employees of the Agency and do not operate business offering their professional services.

65 Under the Freedom of Information Act 1989 there was an exemption for information concerning the business, professional, commercial or financial affairs of agencies and individuals, if disclosure could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency: cl 7(1)(c) of Schedule 1. There were a series of decisions, in both Commonwealth and State jurisdictions, which found that professional persons in full time paid employment did not have relevant professional affairs, whereas those in the business of offering their professional services for reward did: see the discussion in McKinnon v Nepean Blue Mountains Local Health Network [2012] NSWADT 86 at [173-178].

66 There has been no decision that I am aware of the meaning of "legitimate professional interest" under the GIPA Act. In my view the use of this new formulation requires consideration in the modern context in which many professionals conduct their affairs utilising corporate structures that they are employed by, and sometimes hold shares in. There are, in my opinion, good reasons to consider interpreting the phrase "legitimate professional interests" as extending to those interests of a professional person in paid employment that are legitimately concerned with the individuals practice and professional standing, in the context of their individual employment situation.

67 The professional interests upon which the Agency relies with respect to the individuals in the present case is said to be the professional relationships between its employees and their mutual regard for, and respect for, each other. In my view, the real issues this raises are the interpersonal relationships between its employees. They do not have the requisite connection with the professional standing or practice of those individuals, necessary for their legitimate professional interest to be affected. This is so irrespective of the precise meaning one assigns to the term.

68 The Agency also submits that release of the information could reasonably be expected to prejudice its legitimate business interest, being the management of and maintenance of employee confidence in its human resources system. I accept this is the case.

Personal factors to be taken into account

69 Section 55 relevantly provides that I can take into account defined personal factors of AMH when considering whether there is an overriding public interest consideration against disclosure to the extent that they are relevant to the consideration of the public interest considerations against disclosure in clauses 3(a), (b) and (f) and 4(d) of the Table to s 14.. Those factors are:

• the applicant's identity and relationship with any other person
• the applicant's motives for making the access application
• any other factors particular to the applicant.

Those personal factors can also be taken into account as factors favouring granting access to AMH.

70 In her affidavit AMH traversed in some detail the factors concerning the complaints against her, and the subsequent conduct of the investigation, which she considers point to the procedures adopted being unfair, individuals important to the investigation being biased her, and some of the evidence being the result of "certain collusion." Those factors are not personal factors I can take into account under s 55. I think it important to stress that the Tribunal is conducting a review of AMH's access application, not a judicial review of the investigation.

71 It is relevant that all of the individuals are known to each other, at times work with each other, and also live in the vicinity of the same country town. The Agency relies on that closeness and the nature of the bullying allegations against to demonstrate that AMH's motives constitute a reason why the information should not be released to her, because release would provide her with further fodder for intimidation and harassment of those in close working contact with her.

72 In her affidavit AMH protested that she has not taken any adverse action against the individuals concerned since the release of the report. She argued that "this goes a long way to indicating how I will continue to deal with these people." When considered in the light of AMH's stated intention to identify persons "responsible for providing inaccurate and misleading allegations ...", so that she can "commence proceedings " to "remedy the wrongs" committed against her, her absence of action against those she believes acted against her implies delay rather than forbearance.

73 Not for publication

74 On balance I think these factors add weight to the public interest considerations against disclosure in clauses 3(a), (b) and (f) and 4(d) of the Table to s 14.

75 One further point needs to be raised. In her affidavit AMH asserted that the investigation report adversely affected her reputation and that she had an "impeccable record" and a "reputable career." The Agency relied on adverse findings of misconduct made against AMH by the Nurses and Midwifes Tribunal in 2010 to argue that AMH had sought to mislead the Tribunal as to her character. AMH responded that those findings were made after the events in issue. I do not consider AMH's professional reputation to be a factor the Tribunal can take into account under s 55.

76 Insofar as AMH's lack of candour is an issue in these proceedings, the finding by the Nurses and Midwifes Tribunal goes to her credit and veracity, and the reliability of her evidence.

Balancing the public interests

77 In my opinion the fact that the information in issue includes AMH's personal information is a public interest consideration in favour of disclosure meriting considerable weight. The public interest in the administration of justice is also a factor deserving of similar weight, given the generally accepted right of a person to know whom their accusers are. I should add, however, that it is clear from the evidence before me that AMH was advised of the nature of the allegations made against her, and was heard with respect to those issues.

78 The other public interest considerations in favour of disclosure that I have discussed such as those going to accountability, the public interest in the management of government employees, and in ensuring the lawfulness of agency conduct also deserve weight. In the context of the present case however, I do not attach to them the same weight as I have to that relating to AMH accessing her own personal information etc.

79 Those public interest considerations in favour of disclosure are to be weighed against each of the public interest considerations against disclosure I have found above. Insofar as it the information concerns identifying information relating to others, such as addresses and qualifications, AMH has indicated she does not press for access. This leaves a body of personal information much of which goes to the interpersonal relationship between persons with whom AMH works, and which readily allows those individuals to be identified. I think the public interest consideration against disclosure of that personal information deserves considerable weight.

80 I am satisfied that the public interest consideration against disclosure of information that could expose a person to a risk of harm, or of serious harassment, or serious intimidation, is a factor meriting great weight in this case. The protection of individuals from future harassment and harm is a very persuasive factor.

81 I also accept that maintaining the confidentiality of information given to the Agency in confidence and which is necessary for the Agency to manage its human resources is deserving of some weight. The other public interest considerations against disclosure that I have referred are also deserving of weight, although, in my view, in the circumstances of this case, less weight than that given to the other factors I have discussed.

82 As I have previously pointed out the weighing of these competing public interests is not a matter capable of mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWADT 307. In some cases the tasks of balancing those tasks is a comparatively simple one. In others it is complex and difficulty tasks.

83 In AMH's case, were it not for the conclusions I have reached with respect to the public interest against disclosure of information that could expose a person to a risk of harm or of serious harassment or serious intimidation, that task would be an extremely difficult one, with the factors counter balancing each other. My acceptance of the Agency' submissions with respect to the public interest against disclosure of information that could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation however, changes that balance. The weight it adds to the public interest consideration against disclosure is such that I think that, with respect to all of the information (apart from that in document 31), the correct and preferable decision is not to disclose the information seeks.

84 Document 31 is entirely unrelated to the substances of the investigation. Its author is not part of the day to day management or staff of the unit. It is not claimed that he fears harassment or intimidation. With the exception of the email addresses of the persons involved in that communication (which is personal information) I think it should be released to AMH.

Order

85 The Tribunal makes the following orders:

1) The decision of the Agency with respect to all the information in issue, apart from document 31, is confirmed.

2) With respect to information in document 31 the decision is set aside and in lieu thereof that Tribunal determines to give the Applicant access to that information (with the exception of email addresses) 30 days from the date of this order.

3) Paragraphs 30, 62 and 73 of these reasons are not be disclosed to the Applicant or the public and shall not be published.

4) I note that the orders made by the Tribunal on 31 October 2012 prohibiting the disclosure or publication of the identities of the individuals who are parties to this proceeding remains in force.

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Decision last updated: 05 December 2013