Starr v Sydney Water Corporation [2010] NSWADT 28 (29 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Starr v Sydney Water Corporation [2010] NSWADT 28


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Anthony William Starr

RESPONDENT
Sydney Water Corporation



FILE NUMBERS:
093029

HEARING DATES:
24 June 2009, 6 July 2009

SUBMISSIONS CLOSED:
6 November 2009



DATE OF DECISION:
29 January 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:
Black v Hunter New England Area Health Service [2008] NSWADT 301
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429
Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 223 CLR 543
Howell v Macquarie University [2008] NSWCA 26
Keriakes v State Rail Authority of NSW [2003] NSWADT 191
McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321
Neary v State Rail Authority [1999] NSWADT 107
Re Maher and AG’s Department (No 2) (1986) 4 AAR 226 at 277.
Re Saxon and Australian Maritime Authority (unreported, AAT, Cth, 19 June).
Robinson v Director General, Department of Health [2002] NSWADT 222
Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Watt v Forests NSW [2007] NSWADT 197

TEXTS CITED:


APPLICATION:
Freedom of Information - exempt document - Documents containing confidential material - Documents affecting business affairs - Documents subject to legal professional privilege - Documents concerning operations of agencies

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Mattson, solicitor


ORDERS:
The decision is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Starr ("the Applicant") applied to the Sydney Water Corporation ("Sydney Water") under the Freedom of Information Act 1989 ("the FOI Act"), for access to documents held by Sydney Water.

The factual background
2 Sydney Water undertakes statutory functions as a Trunk Drainage Authority on land adjacent to the Applicant's property. In that role, it is to provide storm water and flood management along the trunk drainage system. To perform the work as a Trunk Drainage Authority Sydney Water acquired land ("the Site") from the Applicant. The Applicant still resides at a property adjacent to the land acquired from him.

3 Sydney Water currently uses the Site for trunk drainage purposes and often attends the Site to perform its duties. It uses employees and contractors to perform its duties on the Site.

4 The Applicant has made various complaints about the work of Sydney Water at the Site. Contractors and employees engaged to work at the Site and employees who have had dealings with the Applicant have made confidential complaints to Sydney Water about the behaviour of the Applicant. The complainants perceived the Applicant's conduct to be of a bullying and harassing nature. The complainants expressed concerns about being verbally abused and harassed by the Applicant.

5 The Site is the location of some of the alleged harassment and verbal abuse.

6 Warning letters were sent to the Applicant in April and May 2007 about his alleged behaviour. The Applicant made a complaint to The Energy & Water Ombudsman NSW ("EWON").

7 The Applicant’s freedom on information request was made on 31 October 2008. His application was in the following terms:

"All documents including letters, faxes, file notes, emails, notes of meetings in respect to the allegation of "harassing Sydney Water and our contractors".

Refer to 3rd last paragraph of Allan Catling's email to EWON dated 23 January 2008."

8 Sydney Water identified a number of documents that met the terms of the Applicant’s request and the determination was made to provide the Applicant with access to a number of the documents. However, access to other documents was refused on the basis that they were exempt documents pursuant to clause 4(1)(c) and clause 6(1) of Schedule 1 to the FOI Act.

9 The documents over which access has been refused are complaints, or records of complaints, made in confidence by employees and contractors to Sydney Water about the perceived abusive and harassing conduct of the Applicant.

10 Sydney Water withheld eight documents from the Applicant. The Exempt documents and the exemptions asserted in relation to those documents are identified as:

Document 1 - Memorandum, 2 August 2001

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 2 - Email, 4 May 2006

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 3 - Email, 5 May 2006

Clause 7(1)(c), 13 (b), 16(a)(iii) and 16(a)(iv)

Document 4 - Email, 22 May 2006

Clause 7(1)(c), 13 (b), 16(a)(iii) and 16(a)(iv)

Document 5 - File note, 15 June 2006

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 6 - Email, 19 February 2007

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 7 - File note, 7 April 2007

Clause 7(1)(c), 10, 13(b), 16(a)(iii) and 16(a)(iv)

Document 8 - Email, 19 April 2007

Clause 7(1)(c), 10, 13(b), 16(a)(iii) and 16(a)(iv)

11 Sydney Water subsequently identified a further nine documents:

Document 1 - Email, 19 February 2007 with post it note

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 2 - Email, 22 March 2007

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 3 - Post it note on Memorandum, 18 April 2007

Clause 7(1)(c), 13 (b), 16(a)(iii) and 16(a)(iv)

Document 4 - Email, 19 April 2007

Clause 7(1)(c), 10, 13(b), 16(a)(iii) and 16(a)(iv)

Document 5 - Email, 79 April 2007 with handwriting

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 6 - Email, 23 April 2007

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 7 - Email, 19 September 2007

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

Document 8 - Memorandum, undated

Clause 7(1)(c), 10, 13(b), 16(a)(iii) and 16(a)(iv)

Document 9 - File Note, undated

Clause 7(1)(c), 13(b), 16(a)(iii) and 16(a)(iv)

12 The applicant was dissatisfied with the initial determination and he requested an internal review. The internal review determination did not grant access to the documents however it relied on different reasons for refusal to those given in the initial determination. Sydney Water contends that the documents are exempt pursuant to clauses 7(1)(c), 10(1), 13(b) and clause 16(a)(iii), (iv) and (b) of Schedule l to the FOI Act".

13 The reasons for refusal in the internal review determination were:

"Information contained in the documents listed in Attachment B was provided in confidence within the context of staff or contractors reporting specific workplace issues/risks and/or seeking a response from Sydney Water. The information was not intended for wider disclosure. It is my view that wider disclosure of this information could reasonably be expected to result in:

1. Sydney Water staff and/or contractors not effectively performing future weed management, bush regeneration activities and/or debris collection and removal on Sydney Water land adjacent to property owned by you, thereby having a substantial adverse effect on:
- the management by Sydney Water of its personnel and its contractors in carrying out required functions, and
- the effective performance of required functions.

2. Sydney Water staff and/or contractors being reluctant to provide information in future concerning specific workplace issues/risks that might arise when performing weed management, bush regeneration activities and/or debris collection and removal on Sydney Water land adjacent to property owned by you, thereby prejudicing the future supply of such information to Sydney Water (and therefore impacting Sydney Water's ability to manage any such workplace issues/risks).

I note that you are of the view that it is "just" that you be given access to the documents listed in Attachment B. However, I believe the public interest would, on balance, prevail by the fostering of an environment in which Sydney Water staff and contractors can effectively perform required functions and be willing to provide information to Sydney Water concerning specific workplace issues/risks that might arise. Given this, it is my opinion that disclosure of the documents would, on balance, be contrary to the public interest.

Having regard to the above, I find the documents listed in Attachment B are exempt by virtue of Schedule l, clause 7(1)(c), clause 13(b) and clause 16(a)(iii), (iv) and (b) of the FOI Act".

14 The applicant has applied to the Tribunal for external review of the determination.

The issue
15 This matter concerns Sydney Water’s decision not to provide the Applicant with access to some of the material in documents identified as falling within the scope of his request. The issue for the Tribunal is whether it is the correct and preferable decision to release the documents.

Applicable legislation
16 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

17 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

18 Section 25(l)(a) of the Act provides that an agency may refuse an applicant access to a document that is an "exempt document".

19 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.

20 Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") empowers the Tribunal, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, to make an order prohibiting or restricting the disclosure of information leading to the identification of any person, whether or not that person is a party to the proceedings. Further, pursuant to section 75(2)(c) of the ADT Act, the Tribunal may, for the same reasons, make an order prohibiting or restricting the publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal.

21 Under section 75(2)(d) of the ADT Act, the Tribunal may, for the same reasons, make an order prohibiting or restricting the contents of a document lodged with the Tribunal or received in evidence by the Tribunal.

22 Sydney Water has claimed that each of the documents is exempt documents pursuant to the following clauses of Schedule 1 to the FOI Act:

Clause 7(1)(c) - the business affairs exemption;

Clause 13(b) - the confidential material exemption;

Clause 16(a)(iii) - the personnel affairs exemption; and

Clause 16(a)(iv) - the performance of functions exemption.

23 Sydney Water has also claimed that four of the documents are exempt documents pursuant to clause 10(1) of Schedule 1 to the FOI Act, the legal privilege exemption.

24 Clause 7(1)(c) of Schedule 1 to the FOI Act provides:

7 Documents affecting business affairs

(1) A document is an exempt document:

...

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) 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.

25 Clause 10(1) of Schedule 1 to the FOI Act provides:

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

26 Clause 13(b) of Schedule 1 to the FOI Act provides:

13 Documents containing confidential material

A document is an exempt document:

...

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

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

27 Clause 16(a) of Schedule 1 to the FOI Act 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

... and

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

28 Section 55 of the FOI Act provides:

55 Procedure for dealing with exempt matter

In determining a review application, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.

Sydney Water’s case
29 Sydney Water relies on the following "open" evidence in support of its case:

1. A bundle of material filed pursuant to section 58 of the ADT Act;

2. Statement of Kaia Hodge;

3. Statement of Barry James McClure;

4. Statement of Jennie Thompson;

5. Statement of Raymond David Ferrier

30 I note that parts of these statements cover the same issues and are in identical terms.

31 Sydney Water also relies on a confidential statement from a complainant. The complainant is the author of some of the documents in issue and is also the source of information in other documents. The confidential statement deals with the complaints, the identity of the complainants and information that would identify the complainants.

32 Sydney Water contends that it has a duty to ensure the health and safety of its employees and contractors at any place of work and it must eliminate any risk to safety from harassment and verbal abuse.

33 Mr Mattson submits that to achieve the goal of ensuring safety, Sydney Water needs to encourage the prompt, full and frank reporting of incidents perceived to be bullying and harassment. A necessary part of Sydney Water encouraging reporting, and future reporting, is to keep complaints confidential to protect complainants from the fear of reprisal.

34 Sydney Water contends that the complainants held genuine concerns about the inappropriateness of the Applicant’s conduct. Those concerns were reported to Sydney Water in confidence. Legal advice was sought. Sydney Water has kept those complaints in confidence.

Kaia Hodge
35 Ms Hodge is employed by Sydney Water as the Manager for Stormwater in its Asset Management Division. She provided evidence with respect to the Rouse Hill Development Area ("RHDA") - a greenfields urban growth development area that was identified as an area to help accommodate Sydney's growing population. Sydney Water provides water, recycled water, sewer services and stormwater services within the RHDA.

36 As a Trunk Drainage Authority for the RHDA, Sydney Water is to provide storm water and flood management along the trunk drainage system. Sydney Water is responsible for maintaining the hydraulic function of the trunk drainage land as well as improving and maintaining the environmental integrity and social amenity of the drainage land. It undertakes active bush regeneration, weed management and vegetation management programs throughout the RHDA trunk drainage lands, including the Site. To perform this work, Sydney Water engages contractors that work with and/or under the supervision of Sydney Water employees. A number of contractors could be working at the Site at any one time.

37 Ms Hodge stated that she has had many dealings with the Applicant and that it has become obvious to her that he holds very strong views about Sydney Water's work on the Site. He has voiced many criticisms to her about Sydney Water's management of the land. She stated that those criticisms have included that Sydney Water is wasting tax payers' money, has trespassed on his land and is not performing weed management and bush regeneration work properly.

38 She has become aware that employees and contractors had made complaints about the Applicant's behaviour towards them and Sydney Water has sent correspondence to the Applicant about his behaviour. She has had a number of confidential discussions with various employees at Sydney Water about their dealings with the Applicant. She treated the discussions that related to specific complaints of harassment as being confidential.

39 Ms Hodge stated that Sydney Water managers are trained to treat complaints by employees about conduct of a bullying and harassing nature as confidential unless employees explicitly agree to their complaint, identity and other matters being communicated to other people, including the alleged perpetrator. The employees have indicated to her that they believe the Applicant is difficult to deal with, confrontational and aggressive. They have said that they consider the Applicant's behaviour to be bullying and harassing.

40 Employees have complained to Ms Hodge about the Applicant's behaviour in:

- constantly telephoning them to make complaints;

- being loud and aggressive in telephone conversations;

- swearing at employees;

- sending lengthy faxes containing complaints;

- following people around at site;

- being loud and aggressive to employees at site;

- taking photographs of employees and contractors; and

- making what she considers to be inappropriate comments to female staff.

41 She stated that a number of employees have communicated to her that they feel uncomfortable dealing with the Applicant. Employees have advised her that Sydney Water's contractors engaged to work at the Site have also expressed concerns about the Applicant's conduct towards them.

42 Ms Hodge stated that in her experience as a manager it is difficult to address risks to safety that involve aggressive behaviour, bullying and harassment as often such behaviour is one-on-one and it is reliant on the victim (or a witness) to bring such behaviour to management's attention. She said that it is also more difficult to deal with aggressive behaviour, bullying and harassment by external parties, as she has no management control over those persons. Whilst she can direct employees or contractors to not engage in aggressive behaviour, bullying and harassment, and can exercise disciplinary sanctions in respect of any such behaviour, she cannot do the same with an external third party.

43 She said that as such, she needs to receive relevant and timely information from employees to be in a position to deal with any risk or perceived risk to an employee's and contractor’s health and safety arising from conduct which may be aggressive behaviour, bullying and harassment. Without that information, she cannot deal with any risk. For that reason, she considers that it is imperative that her employees and contractors have the confidence to raise with her, without fear of retribution or retaliation, any instances of aggressive behaviour, bullying and harassment. It is imperative that that information is brought to her attention as soon as possible and that it is important that she treat such complaints confidentially. To ensure the free flow of complaints about aggressive behaviour, bullying and harassment, without any censoring by the complainant, she treats all such complaints in confidence.

44 Insofar as she was able to do so, Ms Hodge provided evidence in regard to the background to the Exempt documents and confirmed the view that the Applicant should not be given access to those parts of the documents that have not been released. She would be concerned about the release of the exempt documents. The documents contain employee and contractor reports about the Applicant's alleged conduct with accounts of what they believe to be aggressive behaviour, bullying and harassment.

45 In her view if employees and contractors were to know that under the Act an alleged perpetrator could obtain their complaint, then an employee and contractor will be less likely to report. It is her view that fear of retribution and retaliation will stifle reporting. She has had a discussion with an employee who is the author of some of the exempt documents and that employee made it very clear that they would not report the Applicant's conduct if the documents were disclosed by saying to her words to the effect:

If these documents are released I am scared Mr Starr will start harassing me again. If you release these documents I will not ever raise the matter again and just deal with the situation myself.
46 She said that she is aware from discussions with the employee and from her review of the exempt documents that this particular employee initially dealt with the Applicant's behaviour without bringing it to Sydney Water's attention. It only came to Sydney Water's attention when the behaviour could not be controlled and the employee felt overwhelmed. Ms Hodge’s view is that Sydney Water needed to have the information earlier than it did so that it could have promptly dealt with any risks, perceived or otherwise, and then have taken steps to protect the employee's health, safety and welfare. Ms Hodge is also concerned that the release of the documents will result in those employees not being able to work at the RHDA trunk drainage land and the Site for fear of retribution or retaliation.

47 She said that Sydney Water is obliged to carry out work at the Site and requires its employees to do so. If Sydney Water’s employees feel that they will be harassed then those employees and other employees are less likely to perform the work. Sydney Water has taken the step of providing security guards at the Site when warranted, and to install a dividing fence between the lands. Such actions mitigate any risk and the non-disclosure of the exempt documents is another step that assists in mitigating risks.

Barry James McClure
48 Mr McClure is employed by Sydney Water as its Internal Audit Manager. He conducted the internal review of the initial determination. He stated that from his review of documents, it appears that the Applicant has made a number of complaints about Sydney Water concerning:
- issues to do with meter readings;
- management of the land by Sydney Water;
- trespass on his property by Sydney Water employees and contractors; and
- Sydney Water and contractor vehicles blocking access to his property.

49 Some of those complaints have been investigated by EWON.

50 Insofar as he was able to do so, Mr McClure provided evidence in regard to the background to the exempt documents and confirmed his view that the Applicant should not be given access to those parts of the documents that have not been released.

51 He stated that in his role as Internal Audit Manager he has had to investigate complaints made to Sydney Water over matters which would ordinarily not be disclosed for fear of possible repercussion and retaliation if there were no assurance or understanding of confidentiality. He stated that Sydney Water encourages the reporting of alleged inappropriate behaviour relating to the workplace, and that it is achieved by treating allegations and complaints confidentially, encouraging full and frank disclosure, and providing assurance that no victimisation will result from the making of a bona fide allegation or complaint. Sydney Water also encourages the keeping of appropriate records.

52 Sydney Water is also bound by protected disclosure legislation that compels Sydney Water to not disclose complainants or any information that would identify the complainant where a protected disclosure is made. Mr McClure has been involved in investigating protected disclosures and says that he appreciates the importance of maintaining confidentiality and providing an environment in which staff are willing to divulge information. Encouraging full and frank disclosure of alleged incidents or alleged/suspected inappropriate behaviour is also important to Sydney Water's corporate governance, and is promulgated by Internal Audit in fraud awareness and corruption prevention workshops and presentations it conducts from time to time across Sydney Water.

53 In his view, the disclosure of the withheld material could have a negative impact on the supply of this sort of information to Sydney Water in the future. If employees know that their complaints about alleged abusive, bullying and harassing behaviour can be disclosed to the alleged perpetrator, then they will be reluctant to report such incidents.

54 If a document can be redacted to delete the identity of the employees, a copy of the redacted document is released. However, in Mr McClure’s opinion, it is not possible to provide any of the withheld material from the documents without either the identification of the complainant(s) or jeopardising the future supply of this sort of information. He thinks that if employees know that their complaints about alleged abusive, bullying and harassing behaviour can be disclosed to the alleged perpetrator, they will be reluctant to record and/or report such incidents.

55 He believes that the disclosure could also adversely impact Sydney Water's ability to perform its functions at the Site if the employee or other employees are reluctant to or refuse to attend the Site or perform all duties required by Sydney Water at the Site because they know their complaints about the alleged abusive, bullying and harassing behaviour have been disclosed to the alleged perpetrator. Disclosure could also be a disincentive for employees to report such behaviour, which will have a negative impact on Sydney Water’s ability to manage its personnel, avoid risks to their health and safety, provide a safe workplace and ensure all functions required by Sydney Water are duly performed at the Site.

56 Mr McClure provided evidence in regard to the documents that are said to be exempt pursuant to clause 10 of schedule 1 to the FOI Act. Mr McClure stated that the documents were prepared for the seeking of or giving of legal advice on how to respond to the situation with the Applicant. The legal privilege in these documents is not waived.
Mr McClure also provided evidence that Sydney Water’s in-house solicitor held a practising certificate at the relevant time. He also provided evidence as to the key role of Sydney Water’s in-house solicitor in providing independent legal advice.

Jennie Thompson
57 Ms Thompson is employed by Sydney Water as a Health and Safety Manager of Operations. She gave evidence in regard to Sydney Water’s obligations pursuant to the Occupational Health & Safety Act 2000 and the Occupational Health & Safety Regulation 2001. The primary duties established by that legislation are directed at eliminating risks to safety; it is not necessary that there be an accident or injury for a breach to occur. Sydney Water also has obligations to undertake risk assessment of all risks to eliminate risks, and if the risk cannot be eliminated, control the risk.

58 Clause 9(2) of the Occupational Health & Safety Regulation specifically identifies the potential for workplace violence as a hazard that must be assessed by employers. Bullying and harassment is a particular issue that employers must protect their employees and contractors from whilst at work. Bullying and harassment can cause physical and psychological injury.

59 Ms Thompson stated that bullying and harassment is a serious risk to health and safety and even the perception of bullying and harassing behaviour towards an employee needs to be dealt with by employers as part of ensuring the health and safety of employees at work. She said that employees often have different perceptions about what is, and is not, bullying and harassment. From an occupational health and safety perspective, it is important that employers deal with risks to safety whatever their origin and whatever their classification or label.

60 She said that in dealing with bullying, or behaviour that is viewed by an employee to be bullying, and harassment, it is important that an employer encourages reporting and full and frank reporting. Without proper reporting of incidents and even safety concerns, an employer will be unable to deal with specific instances of potential risks to safety which could impact on health and safety.

61 In her view, it is integral to achieving reporting of bullying, or behaviour that is viewed by an employee to be bullying, and harassment, and full and frank reporting of those behaviours, that employees and contractors know that they can make complaints confidentially. She said that there is not a good culture in Sydney Water about reporting bullying and workplace harassment and lower level instances of workplace violence. Some workers view it as part of their job to take and withstand abuse from customers. As part of being able to achieve a cultural shift to reporting, Sydney Water needs to ensure employees and contractors of the confidential treatment of their complaints. It is part of her ordinary practice that she treats any complaint of conduct which might be bullying and workplace harassment and lower level instances of workplace violence with the utmost confidence and discusses with the complainant how Sydney Water will manage and respond to the situation.

62 It is her experience that giving details of the complainant (or information that might identify the complainant) to an alleged perpetrator can often personalise and escalate a situation which might otherwise be able to be dealt with, upon early reporting, in an appropriate and non-inflammatory way. It would be a grave concern to her if any complaints, including the identity of the complainants and information, which would enable the identification of the complainant, were to be disclosed to an alleged perpetrator.

63 In Ms Thompson’s opinion, the disclosure of any complaints including the identity of the complainants and information which would enable the identification of the complainants, will be a disincentive for employees to report, discourage full and frank reporting and prejudice the future supply of such information to Sydney Water. It would limit the ability of Sydney Water to respond to bullying and harassment, or behaviour creating the perception of bullying and harassment and would be a significant setback for Sydney Water's efforts to achieve a cultural shift to reporting. It would be a detriment to efforts to eliminate or prevent bullying and harassment, or behaviour that is viewed by an employee to be bullying and harassment; and a detriment to efforts to ensure health and safety.

Raymond David Ferrier
64 Mr Ferrier is employed by Sydney Water as its Industrial Relations Manager. He has been employed in human resources and industrial relations for 30 years. He gave evidence as to his understanding of the impact of workplace bullying and harassment and, from an employment perspective, the need to address such behaviour. He stated that in his experience, bullying and harassment may not always be reported because people:
- may not recognise bullying behaviour;
- fear retribution or 'payback' from the bully, or isolation from colleagues;
- fear an escalation of the current bullying and harassment;
- believe no-one will believe them, or respond to their complaint;
- fear being labelled a complainer or weak;
- believe complaining will damage their career prospects;
- accept bullying as a normal part of !he workplace culture.

65 He said that there has historically not been a strong culture in Sydney Water for reporting workplace bullying and harassment. However, over the last 4 to 5 years Sydney Water has spent time and effort to encourage reporting, and full and frank reporting, from its employees.

66 In his view, it is integral to achieving reporting of bullying, or behaviour that is viewed by an employee to be bullying, and harassment, and full and frank reporting of those behaviours, that employees and contractors know that they can make complaints confidentially. Confidentiality is a mechanism that overcomes some of the concerns. As part of being able to achieve a cultural shift to full and frank reporting, Sydney Water needs to ensure employees of the confidential treatment of their complaints.

67 He expressed the same concerns about the potential consequences from the releases of the withheld material, as did Ms Thompson.

The complainant
68 The complainant filed a confidential statement and also appeared at the hearing and gave evidence on a confidential basis. The complainant does not wish to have their identity revealed to the Applicant. Pursuant to section 75(2)(c) of the ADT Act I directed that the complainant’s evidence be heard in the absence of the Applicant and that the evidence not be made available to the Applicant.

69 The complainant identified that they were the target of the type of conduct on the part of the Applicant of the kind referred to by the other witnesses and expressed concerns in regard to the release of the withheld material that are consistent with those identified by the other witnesses. The complainant fears that some reprisal might be taken against them and said that they did not provide any information about the Applicant's conduct to Sydney Water for Sydney Water to then disclose that information to the Applicant.

70 The complainant is concerned that if any of the withheld material is disclosed to the Applicant or if the Applicant becomes aware of their identity as a complainant, the Applicant will focus his anger and attention towards the complainant. The complainant does not want to have to confront the Applicant or have a situation where the Applicant is encouraged to take issue with the complainant.

Submissions
71 Sydney Water relies on a number of exemptions in Schedule 1 to the FOI Act to refuse access to the exempt documents and additional exempt documents.


Clause 7(1)(c) of Schedule 1
72 Sydney Water contends that each of the documents concern its (and the contractors) business, commercial and financial affairs. That is, the treatment of its employees and contractors in the performance of their duties and the organisation's response (both managerial and legal) to the situation. Mr Mattson submits that the words "business ... commercial or financial affairs" in clause 7(1)(c)(i) are to be construed broadly. He referred to views of Senior Member Barbour in the Administrative Appeals Tribunal matter of Re Saxon and Australian Maritime Authority (unreported, AAT, 19 June 1995) who stated:

"As regards the term 'business, commercial or financial affairs', it would appear that they are words of very wide application, and cover all the aspects, both fiscal and administrative, of an organisation or undertaking; I do not think that they should be narrowly construed."

73 Secondly, Mr Mattson submits that the words "could reasonably be expected to have an unreasonable adverse effect" have been construed as meaning that there must be a reasonable expectation (as opposed to a far-fetched, absurd or unreasonable expectation) that there will be an unreasonable adverse effect on disclosure of the documents: Watt v Forests NSW [2007] NSWADT 197 at [121].

74 In Neary v State Rail Authority [1999] NSWADT 107, President O'Connor said that there must be more than a "mere risk', but it is not necessary to apply a balance of probabilities test (at [35]-[36]). In Robinson v Director General, Department of Health [2002] NSWADT 222 at [66], this Tribunal held that the decision-maker must have real and substantial grounds for the decision and not mere speculation or conjecture.

75 Thirdly, as to the meaning of an "unreasonable adverse effect" Mr Mattson submits that the effect must be sufficiently serious to cause concern to a properly informed reasonable person: Watt v Forests NSW at [125]. What is "unreasonable" will depend on the individual circumstances of the case.

76 The word "unreasonable" often requires that competing public interests be balanced. In this regard, it has been held that the question of an "unreasonable" adverse effect often imports a public interest balancing test: Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429. Thus, it will be necessary for the Tribunal to balance competing public interests which lie both for and against disclosure where it is determined that disclosure could reasonably be expected to have an adverse effect en Sydney Water's business, commercial and financial affairs.

77 Fourthly, in relation to the disclosure of information which could reasonably be expected to prejudice the future supply of such information, it has been held that "prejudice" means an effect which is detrimental, disadvantageous or injurious: Re Maher and AG’s Department (No 2) (1986) 4 AAR 226 at 277.

Clause 10(1) of Schedule 1
78 Clause 10(1) of the Schedule 1 to the FOI Act provides that a document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

79 In order for this legal professional privilege exemption to apply, Sydney Water must establish that the documents are a confidential communication between a person and his or her lawyer that is made for the dominant purpose of giving or obtaining legal advice: see Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 223 CLR 543. Where the communication is from the in-house lawyer of the agency the privilege will still attach if the communication is confidential and it came into existence for the dominant purpose to provide the agency with legal advice: see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62 per Mason and Wilson JJ.

80 In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal said:

[72] The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services.

81 In Howell at [94], the Court of Appeal approved the following remarks made by the Appeal Panel of this Tribunal:

While it is not uncommon in FOI cases in the Tribunal for a solicitor to provide evidence in respect of documents said to be privileged, it is not essential. In this instance the Tribunal had evidence from the client, as distinct from the lawyer, as to the privileged nature of the documents. The Tribunal also undertook its own inspection of the documents. It had evidence of the lawyer's admission to practice and of her role as in-house solicitor. These were, we think, sufficient steps to determine whether the documents were privileged.

Clause 13(b) of Schedule 1
82 In order for a document to be an exempt document under clause 13(b) of the Act, Sydney Water must satisfy the Tribunal that the documents contain information the disclosure of which:

- would disclose information obtained in confidence; and

- could reasonably be expected to prejudice the future supply of such information to Sydney Water; and

- would, on balance, be contrary to the public interest.

83 In order for an agency to satisfy the Tribunal that information was obtained in confidence, it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given: Vella v Commissioner of Police, NSW Police Force [2009] NSWADT 68 at [13].

84 For clause 13(b) to apply it must also be established that the future supply of such information could reasonably be expected to be prejudiced. Reasonableness must be decided taking into account any relevant evidence that is before the decision-maker and any relevant arguments that have been advanced: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [63]. The word 'prejudice' should be given its common, dictionary meaning - that is 'to cause detriment or disadvantage': Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266.

85 Finally, there is a separate public interest test in which the Tribunal is required to balance the public interest considerations for and against disclosure and be satisfied that the factors against disclosure outweigh those in favour of disclosure: see Keriakes v State Rail Authority of NSW [2003] NSWADT 191 at [38]. Factors in favour of disclosure have been found to include objects of the Act, namely promoting accountability and transparency of governmental operations: see Keriakes at [38].

Clause 16(a)(iii )and (iv) of Schedule 1
86 Mr Mattson relies on comments by Deputy President Handley in Black v Hunter New England Area Health Service [2008] NSWADT 301 where he provided the following summary of the operation of clause 16(a)(iv) at paragraphs [32] – [34]:

32 ... Clause 16(a)(iv) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions, and, second, that the disclosure of the documents would, on balance, be contrary to the public interest.

33 A "substantial adverse effect" is one that is more than mere prejudice, and is sufficiently serious to cause concern to a properly informed reasonable person. The focus is on the future effect on the agency’s function rather than the effect of disclosure on the matter in dispute between the parties. See McGuinness, at paragraph 21 (Hennessy DP, citing Re James and Australian National University (1984) 6 ALD 687, Re Thies and Department of Aviation (1986) 9 ALD 454, and Director General, Department of Education & Training v Mullet & anor [2002] NSWADTAP 13 (revised as at 11/6/02)); see also Gales Holdings Pty Ltd v Tweed Shire Council [2005] NSWADT 168 (Higgins JM), at paragraph 46.

34 Deciding whether or not disclosure is contrary to the public interest requires a balancing of competing interests, including the public interest in the applicant’s right to know and the public interest in the proper working of the Government and its agencies: Forgie DP in Toomer and Department of Agriculture, Fisheries and Forestry [2003] AATA 1301, at paragraphs 115 to 119, cited with approval by O’Connor DCJ, President, in Cianfrano v Director General, NSW Treasury [2005] NSWADT 7, at paragraph 83.
87 Mr Mattson submits that the above summary can aptly apply to clause 16(a)(iii). Clause 16(a)(iii) requires first, that the disclosure of documents could reasonably be expected to have a substantial adverse effect on the management or assessment by the agency of its personnel and, second, whether the disclosure of the documents would, on balance, be contrary to the public interest.

The public interest override discretion
88 Mr Mattson submits that in addition to addressing the legal criteria by which the documents are to be characterised as an exempt document, it is necessary to consider the public interest in disclosing an exempt document even if it is held to be exempt under schedule 1 of the Act. He made detailed submissions in light of the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321. In McGuirk, Basten JA stated:

Power to grant access to exempt document

29 The power of the Tribunal to grant access to an exempt document was said to flow from the express terms of s 63 of the ADT Act which, so far as presently relevant provides:

"63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision."

...

32 Because s 63(2) is limited to the exercise of functions conferred or imposed "by any relevant enactment" the power to waive legal professional privilege is not a power enjoyed by the Tribunal. A relevant enactment must be an Act, regulation, by-law, rule or ordinance: ADT Act, s 5 and Interpretation Act 1987 (NSW), s 21A, statutory rule. The University is a body corporate constituted under the University of New South Wales Act 1989 (NSW) ("the UNSW Act"), s 5. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions: see Australian National University v Lewins (1996) 68 FCR 87 at 96-97 (Kiefel J), 101 (Lehane J); Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166 at 174 (Bowen CJ and Lockhart J); Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [22] (Gleeson CJ), [79]-[81] (Gummow, Callinan and Heydon JJ), each case dealing with the phrase a "decision of an administrative character made ... under an enactment" in the Administrative Decision (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or the Judicial Review Act 1991 (Qld). As explained by Davies AJA in this Court, in a matter arising under the ADJR Act, namely Scharer v New South Wales [2001] NSWCA 360; 53 NSWLR 299 (in dissent) but in a passage quoted with apparent approval by Gleeson CJ in Tang at [18]):

"The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient."

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) to waive any legal professional privilege as might remain extant.
89 Accordingly, Mr Mattson submits that submits that there is no scope to release documents that have been found to be exempt pursuant to clause 10 of Schedule 1 to the FOI Act.

90 He further submits that there is no scope to release documents that have been found to be exempt pursuant to any other clause of Schedule 1 to the FOI Act because there is no power under a relevant enactment for those documents to be released.

91 In any event, he submits that there are no strong grounds to release a document that has been found to be exempt.

92 Accordingly, he submits that the Tribunal ought to affirm Sydney Water's decision.

The Applicant’s case
93 The Applicant relies on his own evidence and also provided written submissions in response to Sydney Water's case.

94 The Applicant filed many volumes of material, which appears to address his concerns about the approach that Sydney Water has taken to the management of the Site. The bulk of that material bears no relevance to the issues in this case, i.e. whether the Applicant should be given the withheld material.

95 I also note that the Applicant filed material long after the period for the filing of documents had past. I do not propose to take account of that material. The Applicant contends that I should read EWON's report in detail. In my view, that report has no relevance to the issues in these proceedings. Rather, it deals with the Applicant’s concern about Sydney Water’s management of the Site.

96 The Applicant’s submissions are primarily directed at the errors that he perceives exist in the material that has been released to him. He contends that complaints to Sydney Water should be dealt with in an unbiased way, that all relevant parties are given and opportunity to be heard and any action taken is based on the facts.

97 The Applicant contends that he knows the people who have made submissions and the contractors. He says that Sydney Water is still in breach of noxious weed legislation and that noxious weeds are still being spread. He says that the work done by the contractor was inefficient and wastefu1 and achieved little in the way of practical result. He says that he intends to take matters to the Auditor General regarding maladministration and a failure to comply with legislation such as the Noxious Weeds Act.

98 He argues that Sydney Water is relying on confidential oral submissions to keep maladministration and wastage of funds hidden. He submits that the appropriateness of the conduct of the contractors and the employees should be looked at. There should have been an overview by a senior executive at Sydney Water.

99 The Applicant dismissed Sydney Water’s concerns regarding harassment and bullying. He says that he fails to see why the disclosure of the withheld material could have an adverse impact. He says that it is likely the disclosure will have the opposite effect. For the future it may sort the serious from the trivial and the current from the distant. He contends that it is inappropriate that past incidents are dragged up sometime later in order to prejudice his case.

100 Most of the Applicant’s case seems to be by way of explanation for his conduct. He also provides a context in which the documents in issue came into existence. He says that there was no "abusive, bullying and harassing behaviour. He further says that there is a need for transparency. He questions why anonymous people should be given the chance of a ‘free kick’.

101 The Applicant contends that there is no longer any concern with respect to most of the documents because of the time that has passed since the incidents to which they refer. With respect to the Memorandum dated 2 August 2001, he notes that the writer is no longer with Sydney Water.

102 With respect to the correspondence to and from Sydney Water’s in-house legal advisor, the Applicant contends that this is a further example of bureaucratic mismanagement. He says that the bureaucracy created a problem that did not exist.

103 Despite the voluminous material that the Applicant has filed, I am unable to ascertain any other arguments that are presented in response to that presented by Sydney Water.

Consideration
104 I agree with Sydney Water in regard to the asserted exemption pursuant to clauses 13 of Schedule 1 to the FOI Act. I accept the evidence of all of Sydney Water’s witnesses in regard to the approach taken to complaints of bullying and harassment.

105 I am satisfied that the documents in issue deal with information that was obtained in confidence. In the case of the informant, I am satisfied that the information was given in confidence. In regard to the remaining information, it is my view that it can be implied from the circumstances in which the information was obtained or given that it was intended that it be received in confidence. Ms Hodge’s evidence is particularly relevant to this issue. I accept that information of the type under consideration is of a sort that would normally be given and received on a confidential basis.

106 In my view it is important to maintain confidentiality over the identity of complainants. This is the case notwithstanding the age of some of the documents. I am satisfied that should the withheld information be disclosed, the future supply of such information may be prejudiced. If Sydney Water staff and contractors know that their complaints about alleged abusive, bullying and harassing behaviour can be disclosed to the alleged perpetrator, they will be reluctant to record and/or report such incidents.

107 I am also satisfied that disclosure of the withheld material would be contrary to the public interest. There is public interest in ensuring that Sydney Water continues to receive the frank and full co-operation of its staff and contractors. I agree that the public interest favours the fostering of an environment in which Sydney Water staff and contractors can effectively perform required functions and be willing to provide information to Sydney Water concerning specific workplace issues that might arise. I have weighed the interests in disclosure against those of maintain confidentiality over the identity of complainants and it is my view that disclosure would, on balance, be contrary to the public interest.

108 For the reasons argued by Mr Mattson, I am also satisfied that the exemption pursuant to clauses 7(l)(c) of Schedule 1 to the FOI Act is made out.

109 In light of these findings, it is unnecessary that I consider the other exemptions asserted by Sydney Water.

110 As it is my view that on balance, it would be contrary to the public interest to release the documents. It is therefore unnecessary that I consider arguments regarding whether or not the Court of Appeal decision in the matter of McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 affects the Tribunal’s power to order release of a document found exempt. In any event, that there are no strong grounds to support the release of the documents that have been found to be exempt.

111 In my view, the correct and preferable decision is that the documents should not be released.

Order

The decision is affirmed.