Collins v Department of Corrective Services [2010] NSWADT 39 (8 February 2010)

Last Updated: 17 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Collins v Department of Corrective Services [2010] NSWADT 39


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Elizabeth Kate Collins

RESPONDENT
Department of Corrective Services



FILE NUMBERS:
093119

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
17 November 2009



DATE OF DECISION:
8 February 2010

BEFORE:
Montgomery S - Judicial Member





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

CASES CITED:
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
Colakovski v Australian Telecommunications Corp [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111
Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606
CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Department of Education & Training v Mullet and Randazzo (No 2) [2002] NSWADTAP
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Fulham & Mohamed v NSW Department of Health [2008] NSWADT 227
Gilling v Hawkesbury City Council (1999) NSWADT 43 at paragraph [33]
GJ v NSW Department of Education and Training [2008] NSWADT 310
McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321
McGuirk v UNSW [2007] NSWADT 204
Victoria Police v Marke [2008] VSCA 218
Young v Wicks [1986] FCA 169; (1986) 13 FCR 85

TEXTS CITED:


APPLICATION:
Freedom of Information - exempt document - documents affecting personal affairs

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
Elizabeth Kate Collins
RESPONDENT
Department of Corrective Services


ORDERS:
The decision is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 The Applicant made an application to the Department of Corrective Services ("The Respondent") pursuant to the Freedom of Information Act 1989 ("the FOI Act") in which she requested access to

The report prepared by Departmental employee Kathleen Crilly (Acting Director, Professional Standards and Administrative Law Branch) of the meeting with me held at Coffs Harbour District Office (COS) on 7/3/08 in relation to allegations of bullying and harassment by [two named officers].

2 The Respondent’s Freedom of Information and Privacy Officer, Ms Mandy Beadle determined the request. Ms Beadle identified three documents that fell within the scope of the request and determined that parts of the documents contained information which was considered exempt pursuant to clause 6(1) and clause 16(a)(iii) of Schedule 1 to the FOI Act. She determined to grant the Applicant partial access to those documents. The withheld matter relates to the persons who were the subject of the allegations of bullying and harassment ("the named officers").

3 The Applicant made an application for internal review of Ms Beadle’s determination. Manager of the Respondent's Freedom of Information and Privacy Unit, Ms Margaret Fulford, determined the internal review application. Ms Fulford affirmed Ms Beadle’s determination.

4 The Applicant filed an application to the Tribunal requesting external review of the Respondent's decision.

5 The Respondent subsequently decided to release parts of the documents where it had claimed exemption under clause 6(1) of the Act. This information relates to the named officers. The Respondent provided the Applicant with copies of the documents with that previously exempt material. Therefore, only two of the three documents are still in contention. The Respondent maintains that parts of the documents are exempt under clause 6(1) of the Act and clause 16(a)(iii) of Schedule 1 to the FOI Act.

6 At a planning meeting held on 25 August 2009 it was decided that the matter would be determined on the papers without the need for a hearing. I set a timetable for each of the parties to file material on which they proposed to rely. I subsequently invited the parties to provide written submissions in regard to the question of whether the Tribunal has the power to order the release of the document if it is found to be exempt 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.

7 This decision is based on the material filed by the parties.

Applicable legislation
8 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 that Act.

9 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1.

10 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act.

11 Clause 6(1) of Schedule 1 to the FOI Act (Documents affecting personal affairs) provides that a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. Clause 6 relevantly provides:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

12 Clause 16 of Schedule 1 to the FOI 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:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

(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.

The Respondent's case
13 The Respondent relies on open and confidential written submissions by Ms Katrib and open and confidential affidavits of Mr Richard Irving, the Department’s Assistant Commissioner Probity and Staff Development and Chief Ethical Strategist. The confidential material annexes material that has not been provided to the Applicant.

The Clause 6 exemption
14 The Respondent has an onus to establish that the documents contain material that concerns the "personal affairs" of a person: see GJ v NSW Department of Education and Training [2008] NSWADT 310.

15 In Young v Wicks [1986] FCA 169; (1986) 13 FCR 85, the term personal affairs was found to mean "matters of private concern". Further in the decision of Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 ("Perrin's Case") Kirby P stated that

"in its context, the words 'personal affairs' mean the composite collection of activities personal to the individual concerned".

16 In Perrin's case, Kirby P stated that whilst disclosing the names of police officers and employees involved in preparing police reports would not be considered disclosure of information concerning their personal affairs,

"it would be quite different if personnel records, private relationships or (perhaps) private addresses would be disclosed. Such information would attract the exemption"

17 The NSW FOI Manual published in August 2007 by the NSW Department of Premier and Cabinet and NSW Ombudsman ("the FOI Manual") states at paragraph 12.3.19:

"Without attempting to set out a comprehensive list of relevant matters, in assessing FOI applications it can be assumed that, in the absence of special circumstances to the contrary, information concerning the following matters could constitute the 'personal affairs ' of a person in terms of the first part of the test in clause 6:

...

(19) Disciplinary investigations or proceedings, particularly where disciplinary action was taken."

18 In CY v Northern Sydney Central Coast Area Health Service [2008] NSWADT 315, the Tribunal found that an investigation report into the conduct of an employee concerned the personal affairs of the employee involved particularly in circumstances where the report formed the basis of disciplinary action being taken against the employee in question. The Tribunal declined to release the report on that basis.

19 The information contained in the documents under review relates to action taken against the named officers pursuant to the provisions of the Public Sector Employment Management Act 2002. The Respondent submits that this information is clearly the personal affairs of the named officers and falls within the scope of the personal affairs exemption in clause 6(1) of Schedule 1 to the FOI Act.

20 The limb of clause 6(1) requires consideration of whether the disclosure of the information would constitute unreasonable disclosure of information concerning the personal affairs of the person. In GJ v NSW Department of Education and Training the Tribunal stated at paragraph [40]:

40 Whether a disclosure is ‘unreasonable’ requires consideration of matters such as the nature of the information, the circumstances in which it was obtained, the likelihood of the information being information that the person does not wish to have disclosed without consent, and whether the information has any current relevance: see Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51].
21 The named officers do not consent to the information being released to the Applicant.

22 The Respondent says that the information is considered confidential information relating to action taken against the named officers. It submits that as the Department still currently employs one of the named officers, the release of the information would be an unreasonable disclosure of that officer's personal affairs and has the potential to affect the ability of the officer to perform their duties.

23 The Respondent is of the view that there are no public interest considerations which would outweigh the importance of maintaining the personal affairs of the named officers.

The Clause 16 (a)(iii) exemption
24 Clause 16(a)(iii) of Schedule 1 to the FOI Act provides that a document is an exempt document if it would reasonably be expected that disclosure of matter in that document would have a substantial adverse effect on the management or assessment by an agency of the agency's personnel and disclosure would, on balance, be contrary to the public interest. The Respondent submits that if the exempt material is released, it could be reasonably expected to have a substantial adverse effect on the management of the Respondent's personnel.

25 The Respondent relies on the decision in Department of Education & Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29 at paragraph [80] as support for the submissions that 16 that a three step analysis is involved in determining the application of clause 16(a)(iii), namely:

· one, does the administrative practice in issue fall within the description of the administrative practice to which protection is given;

· two, has the degree of prejudice specified been demonstrated; and,

· three, ‘would [disclosure], on balance, be contrary to the public interest.’

26 In Mullet and Randazzo (No 2) the Appeal Panel considered the definition of "substantial adverse effect" as outlined in clause 16(a)(iii) and stated:

97 It will be seen that, again, the exemption in cl 16(a)(iii) focuses on systemic considerations. ‘Substantial adverse effect’ involves a higher test than, for example, mere ‘prejudice’ as referred to in (a)(i) and (ii): see Re James and Australian National University (1984) 6 ALD 687. The effect must be sufficiently serious to cause concern to a properly informed reasonable person: Re Thies and Dept of Aviation (1986) 9 ALD 454; it must not be irrational or absurd: see Attorney General (Comm) v Cockcroft (1986) 64 ALR 97. We agree with the following comments in Australian Administrative Law (Butterworths, Australian Administrative Law Library, June 2002) at [741]:

‘Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question: Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 15 ALD 232; 80 ALR 533; Re Fryar and Australian Federal Police (1988) 17 ALD 25.’

27 The Appeal Panel also noted that clause 16(a)(iii) focuses on systemic considerations and that the protection of confidentiality is merely one important aspect of what is involved in the preservation of good personnel management practices.

28 The Respondent relies on Mr Irving’s evidence. As the officer responsible to the Commissioner for Professional Conduct within the Department, Mr Irving considers that the release of the withheld information could adversely affect the manner in which the Department manages its personnel. He says that the exempt material relates to the decision of the Commissioner with respect to an assessment into allegations of bullying and harassment. Decisions of the Commissioner with respect to conduct issues of employees are made in confidence and only communicated to the employee subject to investigation or an assessment process.

29 The Respondent submits that the disclosure of the information could negatively impact on the role of the Commissioner as decision maker with respect to the conduct of employees. It would have a negative impact on workplace relationships and could also affect in a negative manner the expectation that departmental officers have regarding the confidentiality of and privacy of their personnel information.

30 The Respondent further submits that the disclosure could also create further disputes in the workplace where the initial complaint originated, creating difficulty for the frontline manager and the Department as a whole in managing its personnel. Any difficulty in managing the Department's personnel would also affect the Department's ability to carry out its main role in managing offenders.

31 In Mullet and Randazzo (No 2) the Appeal Panel held that the disclosure of confidential statements made by a selection panel could have a substantial adverse effect on the conduct of future selection panels and was satisfied that disclosure of the statements could give rise to a substantial adverse effect on the management and on the assessment of personnel. The Appeal Panel found that selection panel processes are surrounded by strict requirements of confidence and that any report into the processes should reflect the same standards of confidentiality.

32 The Respondent submits that this reasoning can be applied to this matter. It says that the decision of the Commissioner is made in confidence and only communicated to the employee the subject of the decision. Therefore the requirements of confidentiality of any documentation relating to the decision should also be maintained.

33 The Respondent says that the Applicant has been advised of the outcome of her complaint. The Respondent is of the view that no greater good could come from disclosing the exempt material.

34 With respect to the public interest component of clause 16 (a)(iii) the Respondent relies on the decision in Fulham & Mohamed v NSW Department of Health [2008] NSWADT 227 in which Deputy President Handley noted at paragraph [69]:

69 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.
35 The Respondent says that as the exempt material relates to a decision of the Commissioner to take action against his employees, there is a greater public interest in ensuring that the Department is able to manage its staff effectively by not disclosing this sensitive personnel information to third parties and to the world at large. It is in the public interest that the Department is able to manage offenders efficiently and any personnel issues that may arise would affect the Department's ability to carry out its role. It submits that in circumstances where the Applicant has already been provided with large parts of the documents and has been advised of the outcome of her complaint there is no public interest argument to support the release of the exempt material which outweighs the need to protect the information contained in the documents and the Department's ability to manage its personnel.

36 The Respondent further submits that there is no reason for the Tribunal to exercise any residual discretion in this matter. The Respondent is of the view that there is no special, strong or overriding reason to displace the assumption that the exemptions are required to protect the personal affairs of the employee's involved, the Department's ability to manage its personnel and for the proper administration of Government.

The Applicant's case
37 The Applicant asserts that all she has requested is the information that was verbally conveyed to her in a meeting held to inform the complainants of the outcome of the investigation in February 2008. She says that her requests have been refused or ignored, and she feels that she has been misled.

38 She provided detailed submissions in support of her application. However, much of the content of those submissions and their annexures deal with matters that are not in issue in these proceedings. She seems to be seeking a response in regard to queries as to why one of the named officers was promoted while under investigation for bullying and harassment. Her submissions suggest that she holds the belief that release of the withheld material will assist her in pursuing that matter.

39 She contends that the Respondent has gone to great lengths to avoid putting to paper what was she says was verbally conveyed to her at the February 2008 meeting. She provided a considerable number of documents that she says support her assertion. She has lost faith in the Respondent ever providing a definitive answer to her queries and is therefore seeking to have the issue put to rest with the release of the documents.

The Clause 6 exemption
40 The Applicant asserts that when making a decision regarding release of the withheld information the Tribunal should take account of what she refers to as "the DCS evasive responses" into account.

41 She submits that the withheld information is not exempt pursuant to Clause 6 as the investigation involved allegations of bullying and harassment at work and involving work colleagues and does not therefore involve private affairs. She argues that this matter concerns the public duties of the named officers.

42 She says that the fact that the information relates to a decision made by the Commissioner does not justify its classification as personal information.

43 The Applicant asserts that there were improper motives attached to the promotion of one of the named officers and that this would be revealed by the release of the withheld information. She says that the promotion was not made solely on merit. She further says that any embarrassment that might be caused by the publication the information is no justification for the withholding of information. She says that the FOI Act was put in place to facilitate the freedom of information and not to cover up dubious decisions that could be seen to embarrass the Government or the Commissioner.

44 The Applicant concedes that, as she is unaware of what information is contained within the exempted material, she is unable to contend whether or not this information falls under what could be described as personal information.

45 However, she says that if the exempted material only contains personal information then, pursuant to section 25(4)(a) of the FOI Act, the Tribunal should order release of the a copy of the documents from which the exempt matter has been deleted. She says that she is not seeking to know the personal addresses or private relationships of the individuals concerned. She says that any information other than the exceptions identified by Kirby P in Perrin’s case should be released.

46 She says that if the exempted information reveals no more than the fact that the named officers were performing their public duties, however badly, then this is not the named officers' personal affairs and is therefore not exempt under clause 6(1).

47 The Applicant points to paragraph 12.3.42 of the FOI Manual which states:

In considering what might amount to an ‘unreasonable disclosure’ of ‘personal affairs’ in the context of disciplinary proceedings, the following matters may be relevant:

- the extent to which the behaviour being investigated was public knowledge;

- the applicant's interest in the matter - was the applicant involved in some way (an informant, the subject of alleged disciplinary breaches, etc);

- whether the investigation is complete; and

- the outcome of the investigation - no disciplinary action taken or disciplinary action taken, the results of which would be widely known within the agency or otherwise made public.

48 The Applicant states that the investigation involved at least eight complainants and therefore their respective friends and family would obviously have known of it. She says that the Respondent has gone to great lengths to avoid any other party being made aware of this investigation. She says that she was one of the complainants and despite repeated requests concerning the outcome she has been met with evasive, misleading responses or silence.

49 The Applicant also states that the investigation is complete and therefore release of the information will not prejudice the outcome. She states that on a number of occasions the Respondent has stated that no disciplinary action was taken against one of the named officers. She says that despite this assertion, she has at no time been corrected when she maintained that the officer had been found guilty of bullying and harassment. She asserts that this omission is quite obviously able to confuse either unintentionally or intentionally.

50 She says that this information is very relevant to her and also to any current employees of the Respondent. She is still unsure as to the outcome of the investigation. Also, any current employees of the Respondent who experience a situation where there are allegations of bullying and harassment should be made to feel that any allegations made are taken seriously and that outcomes are not hidden away. She submits that the Act was not intended to protect the traditional anonymity of public servants.

51 The Applicant accepts that the named officers do not wish to have the exempted information released. However, she submits that it is the reasons why they do not want this information released that is at issue. She submits that a document is not exempt because it may cause embarrassment. She says that release of the information will temper any future inclinations that the named officers may have to harass or bully any employees of the Respondent. She says that this would surely be in the interest of the Respondent if it is serious about stamping out future incidents of bullying and harassment.

The Clause 16 (a)(iii) exemption
52 The Applicant states that the Respondent has continued to maintain that there were no adverse findings against one of the named officers. She says that had this person done nothing wrong, it would seem highly unlikely that release of this information would have any adverse affect on that the Respondent’s personnel. However, she submits that if this information concludes that one of the named officers was promoted while under investigation for bullying and harassment and this person was the subject of adverse findings, then she assumes that the only reason why this information has been exempted is to avoid the embarrassment that would result on this materials release. She submits that under section 59A of the FOI Act a document is not exempt because it may cause embarrassment to the Government.

53 She submits that to suggest that just because the Commissioner makes the decision, that decision is therefore beyond the reach of the FOI Act is absurd. She further says that the one of the named officers who is still employed by the Respondent no longer works at the original location and so it would seem unlikely that release of this information would have any impact on the location where the original complaint originated. It could not therefore have any affect whatsoever on the Respondent’s ability to manage offenders at that location.

54 The Applicant submits that the Respondent’s reliance on reasoning that disclosure of confidential statements by a selection panel could have substantial adverse affect on future selection panels cannot be compared against an investigation of bullying and harassment by eight staff members by two officers at one office location. She contends that completely the opposite is true. She says that if this information was released it would have a beneficial effect on the Respondent’s employees. Exposure of bullying and harassment could only act as a future deterrent to any would be bullies, thereby reducing the frequency of such acts.

55 She argues that protection and promotion of one of the named officers has had a detrimental effect. She says that the secrecy surrounding this investigation could render any future investigations into bullying and harassment ineffective and of no deterrent to future bullies.

56 The Applicant disputes the Respondent’s claim that release of this information is contrary to the public interest. She submits that one of the named officers is now employed in a senior position within the Respondent and is therefore responsible for a great many of the Respondent’s employees. It is therefore in the greater public interest to be aware of this person's previous employment history. She says that the release of this information would only affect the management of staff if it were seen by subordinate employees that this person was not of a fit nature to hold such office or that this person’s promotion was of a questionable nature.

57 She says that the release of this information is in the public interest because it is relevant to at least the eight complainants who were personally involved in the investigation but also to all employees of the Respondent.

58 The Applicant submits that the Tribunal has the residual discretion to order release of exempt documents. She asks that the Tribunal take into account the misleading responses she has received from the Respondent on this matter. She says that taking into account the responses from the Respondent she remains unsure of the outcome of this investigation and that due to this lack of a conclusion she has been denied justice.

Consideration
59 The Respondent has asserted that the documents are exempt pursuant to clauses 6 and 16 of Schedule 1 to the FOI Act. For the reasons argued by the Respondent, it is my view that the documents are exempt pursuant to clauses 6.

60 In relation to clause 6, Justice Kirby stated in Perrin's case that:

"The general object of the clause is to protect private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the Act"

61 Deputy President Hennessey commented in Gilling v Hawkesbury City Council (1999) NSWADT 43 at paragraph [33]:

"The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government.

62 The following two criteria must be fulfilled to fall within this exemption:

(1) the documents must contain information concerning a person's ‘personal affairs’, and

(2) the disclosure of that information must involve ‘unreasonable’ disclosure of that information.

63 The term ‘personal affairs’ cannot be precisely or exhaustively defined. In Colakovski v Australian Telecommunications Corp [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111, the Court held that ‘personal affairs’ connotes information that concerns or affects the person as an individual. In Perrin’s case Kirby P held that,

"[i]n its context, ‘personal affairs’ means the composite collection of activities personal to the individual concerned’

64 Whether information will constitute "personal affairs" depends on the context in which it appears.

65 Having regard to the context in which the information appears in these proceedings, for the reasons argued by the Respondent, I am satisfied that the withheld information constitutes the "personal affairs" of the named officers.

66 I must therefore consider whether the disclosure of that information would be ‘unreasonable’. It is well established that the question of whether or not disclosure of documents containing information concerning the personal affairs of another person would be 'unreasonable' is a question of fact that involves an examination of all the circumstances related to the document in question and then weighing up the public interest in protecting personal privacy against the public interest in the release of the documents. An applicant's motive may be relevant to the assessment of whether the release of a document would be unreasonable: see Department of Education and Training v GJ (GD) [2009] NSWADTAP 33; Victoria Police v Marke [2008] VSCA 218.

67 I note that the named officers do not consent to its disclosure.

68 As noted at paragraph 12.3.43 of the NSW FOI Manual:

It would generally be open to the subject of a disciplinary investigation to argue that the release of disciplinary material would constitute ‘unreasonable disclosure of his/her personal affairs’, particularly if no action had been taken against him/her.

69 I agree with that view. It is particularly relevant to the circumstances of this matter. For this reason and the reasons argued by the Respondent, I am satisfied that the release of the withheld information would be unreasonable.

70 There is some debate as to whether the Tribunal has discretion to release a document that is found to be exempt. If there is such a power, it is my view that once a respondent has made out an exemption, the onus of proof shifts and the Applicant must persuade the Tribunal to exercise the discretion to release the documents: see my decision in McGuirk v UNSW [2007] NSWADT 204 at [29] and [39] in which I rejected the Applicant's submission that the onus of proof in relation to the residual discretion is on the Respondent pursuant to section 61 of the FOI Act. It has been authoritatively said that there should be strong grounds justifying the overriding of the exemption: Cianfrano v Director General, Premier’s Department [2007] NSWADT 216.

71 I have weighed the arguments that the Applicant has presented in favour of release of the exempt material against those argued by the Respondent. For the reasons argued by the Respondent, it is my view that on balance, it would be contrary to the public interest to release the documents. There is no special, strong or overriding reason to displace the assumption that the exemptions are required to protect the personal affairs of the employee's involved.

72 In light of these findings, it is unnecessary that I consider the other exemption asserted by the Respondent. It is also 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 under either clause 6 or 16 of Schedule 1 to the FOI Act.

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

Order
The decision is affirmed.