Livingstone & anor v State Rail Authority of New South Wales [2002] NSWADT 25 (25 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Livingstone & anor -v- State Rail Authority of New South Wales [2002] NSWADT 25

PARTIES: APPLICANTS

Clyde Robert Livingstone

Soula Vlahos

RESPONDENT

State Rail Authority of New South Wales

FILE NUMBERS: 013076

013083

HEARING DATES: 02/08/2001, 02/10/2001

SUBMISSIONS CLOSED: 02/10/2001

DECISION DATE: 25/02/2002

BEFORE: Robinson MA - Judicial Member

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED: Re Hocknell and Australian Telecommunications Corporation (1991) 23 ALD 446

Neary v State Rail Authority [1999] NSWADT 107

Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

APPLICATION: access to documents - operation of agencies

Freedom of Information Act - access to documents - operation of agencies

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANTS

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

M J Leeming, barrister

ORDERS: The reviewable decision in each matter is affirmed.

Reasons for Decision:

1 These are applications for review of reviewable decisions made under the Freedom of Information Act 1989 ("the Act") refusing the applicants full access to a copy of draft recommendations and a report of an investigation into staff grievances relating to the staff and management of the respondent agency who were based at the Town Hall Railway Station in about December 2000. The subject 34 page report was commissioned by the respondent and was drawn by Mr Peter Medlock, a human resources consultant, and is dated "December 2000" ("the report"). The report followed an inquiry conducted in late 2000 during which more than 90 individual interviews were conducted with then current and former staff and management at the station.

2 Initially, the respondent's officers refused the applicants access to the entire report. However, prior to the conclusion of the hearing, the respondent had released to the applicants a copy of the report with many passages and words "expurgated" from the pages by the respondent. Both applicants in these proceedings now seek access to those parts of the report so withheld.

3 The first applicant (in proceedings numbered 013076), Clyde Robert Livingstone is currently and was during the course of the investigation the full-time Station Manager at Town Hall station. The second applicant (in proceedings numbered 013083),Soula Vlahos, was the Duty Manager at Town Hall station during the course of the investigation and she was transferred to Central Station after the report was handed down based on the recommendations contained in the report.

4 Both applicants made applications under the Act for access to documents and recommendations made by Mr Medlock. Access was refused under the Act and internal review applications were lodged. On 26 February 2001, Ms Helen Vickers, Corporate Counsel of the respondent agency determined that the internal review applications should be refused and access to the documents denied. The reasons set out for the internal review determination in respect of each applicant are relevantly identical (exhibits 2 and 3). The subject documents said to be caught by each application were described in the following terms:

(a) Confidential Draft Town Hall Report-Peter Medlock; and;

(b) Confidential Report of Inquiry into Staff Grievances-December 2000, Peter Medlock.

5 The initial FOI determination and the internal review decision relied on numerous exemptions set out in Schedule 1 of the Act. Ultimately, at the hearing, the respondent relied on four exemptions based on the clauses of Schedule 1, namely, the personal affairs exemption (clause 6), the internal working document exemption (clause 9), the confidentiality exemption (clause 13), and the operations of agencies exemption (clause 16).

6 The hearing before the tribunal occurred over two days. Both applicants appeared in person and the respondent was represented by counsel instructed by solicitors. A significant amount of documentary evidence was tendered at the hearing and a number of persons gave oral evidence. In any event, the essential facts involved in these proceedings are not in significant dispute. By the operation of section 61 of the Act, the respondent bore the burden of establishing that the determination is justified.

7 Exhibit 1 tendered by the respondent comprises a bundle of affidavits and a tender bundle of some relevant documents of the respondent. The exhibit contains three statements of Ms Belinda Henry dated 6 June 2001, 22 June 2001 and 26 June 2001. Ms Henry is a solicitor employed by the respondent. Her affidavits set out the background to the proceedings and include details of the steps taken to notify a number of third parties about these proceedings and that the respondent accorded them an opportunity to seek to become involved should they wish. Some of these third parties were deponents of confidential affidavits which were filed in these proceedings. Exhibit 1 also contains a lengthy statement dated 26 June 2001 of Mr Kevin Hugh Mackie, the Manager-Industrial Relations of the respondent. Mr Mackie is primarily responsible for providing strategic industrial relations advice to the respondent and the responsible Minister. The exhibit also contains a statement of Mr Peter John Medlock dated 25 June 2001. In that statement, Mr Medlock describes the circumstances of his engagement by the respondent and the process he adopted for conducting the investigation and reporting to the respondent. The respondent's tender bundle contains (at Tab 1) the expurgated version of the report as it was delivered to the applicants under the Act.

8 The respondent also tendered a second statement (exhibit 5) from Mr Medlock dated 2 August 2001 partly in response to the first applicant's written submissions. Also tendered (exhibit 6) is a letter of the Operations Manager, Station Operations Division of the respondent to Belinda Henry dated 31 July 2001 regarding the status of the implementation of the "Medlock Recommendations" as at that date. Exhibit 6 makes it clear, as did the oral evidence of Mr Mackie, for the respondent that many of the recommendations contained in the report were still being implemented by the respondent as at the time of the Tribunal hearing.

9 During the course of the hearing, a number of confidential affidavits or statements were tendered by the respondent. Confidential exhibit 4 comprises a bundle of documents including a marked up copy of the report showing the deleted material that has been withheld from the applicants and a number of other documents relating to individual or specific incidents involving the staff and management at the Station. Tab 13 of the bundle contains a marked up draft report showing (by a single line through the text) what material was deleted from the draft and (by a double line under the text) what was added in the final recommendations. Confidential exhibit 7 is a third statement from Peter John Medlock and further explains and identifies the individuals that he considers would be identified by the release to the applicants of further text from the report. Confidential exhibit 8 is a bundle of five confidential affidavits from persons who were involved in the Medlock inquiry by being interviewed about specific incidents and they each do not wish their identity to be revealed to the applicants for a number of reasons stated in the affidavits. The respondent also relied upon detailed written submissions dated 3 July 2001.

10 Both Mr Medlock and Mr Mackie gave oral evidence during the hearing and were subjected to lengthy cross examinations.

11 The first applicant primarily relied on his statement/submissions dated 19 July 2001 (exhibit AA) and a bundle papers he tendered at the hearing from various sources (exhibit BB). The first applicant has been employed by the respondent for about 46 years and on his own evidence and from my observations of him during the conduct of these proceedings, he appears to be a conscientious and loyal employee and manager of the respondent. He is aware, he says, of a number of accusations and allegations made against him as are or may be reflected in the report and describes the allegations he is aware of as "unjust" and "extremely hurtful". He believes that he has been denied natural justice in that he considers allegations have been made against him and he has been unable to respond. He argues that the promise of confidentiality made by Mr Medlock to the interviewees during the course of the inquiry was only a qualified undertaking and therefore does not constitute an exemption under the Act. He described in significant detail how difficult it is managing a railway station such as Town Hall from a number of perspectives and argues that the support he sought from the higher levels of management of the respondent was not always forthcoming. In the bundle of documents he tendered, there is some further evidence in support of his case and from extracts from trade union magazines describing the course of the inquiry and copy of a decision in proceedings in the Australian Industrial Relations Commission regarding the Enterprise Agreement of the respondent authority and a decision of the Commission dated 19 May 2000. The first applicant raises a number of specific instances and names a number of specific employees of the respondent in the course of his evidence. As will become evident later in these reasons for determination, I do not consider it necessary to descend into the arena of specific incidents and allegations of the kind raised by the first applicant in order to determine these proceedings.

12 The second applicant primarily relied on her statement dated 20 July 2001 to which a significant number of documents, photographs and staff petitions was attached (exhibit A). The second applicant has been employed by the respondent for almost 14 years during which she was Duty Manager at Town Hall Station for 7 years before she transferred to Central Station. She is plainly a dedicated employee of the respondent. She gave extensive evidence of what she believed were significant errors in the investigation process and argued that, as she considered she knew the identities of those third parties who sought not to be identified during the FOI decision-making process and in these proceedings, there was no harm in the Tribunal revealing their identities a providing full access to the report. The second applicant also tendered some documentary material (exhibits B to F) along the same lines. It is clear that the second applicant was a very popular duty manager at the Station with the staff of the respondent.

13 In addition to this evidence, the second applicant also called Mr Tuck Hamish Gardiner, and Mr Peter Au, Customer Service Attendants at Town Hall Station in support of a number of contentions relating to the fairness of the investigation process undertaken by Mr Medlock in his inquiry and relating to allegations of false or corrupt evidence being given to the said inquiry. Mr Gardiner also relied upon a Statutory Declaration dated 17 September 2001 (exhibit G). A statement dated 23 September 2001 of Ms Joanna James, a Customer Service Team Leader at the Station was also read by the second applicant (exhibit H). The statements are also in the same category of questioning the integrity of the investigation process, the motives of some of those who appeared before it and expressing words of support for the second applicant.

14 Most of the evidence of the applicants given in person by them was, quite properly in my view, unchallenged by the respondent which, in effect, conceded that the full release of the report was a matter of considerable personal interest to each of the applicants (albeit for different reasons in relation to each applicant). The Medlock investigation was an extremely significant inquiry and the conclusions of the inquiry had (and may continue to have) ramifications for the circumstances of the continuing employment of both applicants.

The Inquiry

15 The background to the calling of the inquiry, its terms of reference and the four previous inquiries conducted into issues at Town Hall Station since 1997 are set out in the opening pages of the released version of the report. In short, the inquiry was called for in mid-October 2000 by the Co-ordinator General of Rail of the respondent after allegations of misbehaviour were aired by groups of staff and management. The terms of reference for the inquiry were agreed with the key unions representing staff and management at the Station, the Australian Services Union (ASU) and the Rail Tram and Bus Union (RBTU). The methodology of the conduct of the investigation is also set out in the report and was the subject of extensive evidence by Mr Medlock and Mr Mackie. More than 90 individual interviews were conducted by Mr Medlock and his assistant. The draft recommendations and the final report was presented to the respondent in about December 2000.

16 I have read the report and the draft recommendations carefully and I have come to the conclusion that those parts of the report and the draft recommendations that were not released to the applicants should not be released in response to their FOI application in these proceedings. The primary reason is that I think the exemption based on clause 16 of schedule 1 of the FOI Act is made out by the respondent.

Clause 16 - Documents Concerning the Operations of Agencies

17 Clause 16 of Schedule 1 of the Act relevantly provides:

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and

(b) would, on balance, be contrary to the public interest.

18 The respondent relied on each of the subclauses set out above. In my view, the subject documents each contain matter the disclosure of which in my consideration could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel.

19 The respondent referred the tribunal to the decision of the Commonwealth Administrative Appeals Tribunal, Re Hocknell and Australian Telecommunications Corporation (1991) 23 ALD 446 where, in dealing with the case where the Commonwealth equivalent of clause 16 was relied upon in connection with a letter written by a former subordinate to the FOI applicant's superior, the Deputy President of that Tribunal (at 447-448) stated:

"In any organisation, especially one as large as that of the respondent, free and confidential communication by staff to superior officers concerning personal problems and management difficulties appears to be essential to the smooth running of the organisation. Personal difficulties can arise between different staff members who are incompatible or make life difficult for others. ... The management of such a large organisation as that of the respondent would be seriously hampered if there were no channels of confidential communication."

20 I do not consider it matters that in the present case, the "channel of communication" to the respondent by its employees was by way of an independent consultant specifically appointed to hear and report on such claims and issues.

21 In the respondent's submissions, the following was stated (at paragraphs 5.8-9:

"An organisation as large as the SRA is reliant on confidential channels of communication between staff and management in order to ensure that employees are managed in an appropriate fashion. Mr Medlock was commissioned specifically to deal with the staff grievances at Town Hall station having exhausted internal systems for dealing with these issues (paragraph 8 of Mr Medlock's statement; paragraphs 11-13 of Mr Mackie's statement). In addition, Mr Medlock gave undertakings of confidentiality to the third parties he interviewed for and on behalf of the SRA (paragraphs 22, 24 and 25 of Mr Medlock's statement). Further, Mr Medlock was given, in confidence, access to a number of the SRA's internal files concerning grievance issues and personal files (paragraph 12 of Mr Medlock's statement). In this way, the SRA placed Mr Medlock firmly within the channels of confidential communication to Senior Management at the SRA.

The disclosure of the exempt matter in the Medlock report would significantly hamper the existence of proper channels of confidential communication within the SRA, because the disclosure would have the effect of discouraging staff to exercise those channels. This would have a significant adverse effect on the management of the SRA's personnel."

22 I accept these submissions and I consider the exemption based on clause 16(a)(iii) is made out on the evidence, which I accept. The remaining question is how the public interest test in clause 16(b) should be applied.

23 Even if I am wrong about my assessment in this regard, and were I required to determine it, I would also consider that release of the material could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the respondent. There is abundant evidence in the material tendered by the respondent in this regard and in the oral evidence of Mr Mackie in particular, whose evidence I accept (see, for example, paragraphs 11, 12 and 39(b) of Mr Mackie's statement dated 26 June 2001, and paragraphs 31 and 34 of the statement of Mr Medlock dated 25 June 2001). In addition I agree with the written submissions of the respondent at paragraph 5.12 of those submissions and the evidence referred to there. While I do not consider that the risk of a substantial adverse effect on the conduct of industrial relations of the respondent is a large risk in the circumstances, I consider on the evidence that it is a real risk.

The Public Interest

24 It was common ground in these proceedings that there was a public interest in the release of the subject documents based on factors relating to public sector accountability and transparency in the process of information collecting and decision-making. In addition, it must be recognised that each applicant here has a very significant personal interest in the release of the full version of the subject documents as the documents concern them to some extent. In particular, each applicant considers that some form of injustice has occurred and believe that this can only be rectified by the release of the full version of the documents. In their view, the public interest may be met by their individual needs to have access.

25 Against these factors are a number of factors put forward by the respondent that, it is submitted, tilt the balance away from release of the disputed material. In short, it is submitted that the respondent is:

(a) attempting to preserve the integrity and proper conduct of its fact-finding and deliberate processes by maintaining the assurance of confidentiality that was given to those staff members who spoke to Mr Medlock and his assistant during the course of the inquiry;

(b) seeking to maintain the integrity and viability of the respondent's internal decision-making processes;

(c) seeking to avoid industrial action by the adoption of the independent consultant investigations strategy engaged here; and;

(d) merely attempting to provide a safe workplace free of harassment and intimidation.

26 In relation to the avoidance of possible industrial action, the respondent submitted:

"There is public interest in the avoidance, where possible, of industrial action. The SRA provides an essential public service, without which the public would suffer extreme inconvenience. The potential of industrial action to significantly disrupt that service means that, in the SRA's submission, the public interest would be greatly harmed by industrial action (Neary v State Rail Authority [1999] NSWADT 107 at 35). Even if the risk is relatively small, the serious adverse consequence of escalating industrial action and its impact on the public is a powerful public interest consideration."

27 I agree with this submission, and, in my opinion, the possibility of industrial action here, when combined with the other public interest matters argued for by the respondent, tips the balance in favour of a refusal to release the documents. Having said that, my own examination of the subject report and draft recommendations reveals that there are many matters covered by the investigation and inquiry that do not concern the applicants personally and they relate to systemic and management issues and, potentially, issues that may impact on the industrial relations of the respondent in the particular circumstances here.

28 Accordingly, I determine that the clause 16 exemption is made out.

29 I am not required to consider further the claimed exemptions based on the other grounds contended for by the respondent in these proceedings. However, I do note that a version of the public interest test is a part of each of clauses 6, 9, and 13 of schedule 1 of the Act. Were I required to, I would have applied the "public interest" test there to achieve the same result. The disputed material should not be released to the applicants.

30 As to whether the Tribunal should release the exempt portion of the report in any event as a matter of the Tribunal's discretion in section 25(1) of the FOI Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85] referred to as the "override discretion"), I consider that all the matters the Tribunal would ordinarily consider as going to the exercise of the discretion in the present case have already been taken into account in the Tribunal's consideration of the claimed exemptions. Accordingly, I do not consider the exempt material should be released as a matter of the Tribunal's section 25(1) discretion.

31 The reviewable decision in each matter is affirmed.