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Administrative Decisions Tribunal of New South Wales |
Last Updated: 9 March 2011
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Legislation Cited:
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Cases Cited:
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Callejo and Dept of Immigration and Citizenship, Re
(2010) 51 AAR 308; [2010] AATA 244
Chief Executive Officer, State Rail Authority v Woods (No 2) [2003] NSWADTAP 39 Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25 Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 Commissioner of Police v District Court of New South Wales (Perrinâ€&tm;s case) (1993) 31 NSWLR 606 Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 15 ALD 232 Eyes v Wyong Shire Council [1999] NSWADT 139 Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Keriakes v State Rail Authority [2003] NSWADT 191 Latham v Director General, Department of Community Services [2000] NSWADT 58 P v Greater Western Area Health Service [2007] NSWADTAP 57 Public Service Assn and Professional Officers Assn, Amalgamated Union of NSW v Premierâ€&tm;s Department [2002] NSWADT 277 Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355 Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 Saggers v Attorney Generalâ€&tm;s Department [2005] NSWADT 193 Smith Klein French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73 Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 TW v TX [2005] NSWADT 262 WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA 84 |
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Representation
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Publication Restriction:
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1
The Applicant is an employee of a hospital ("the Hospital") operated by the
Northern Sydney & Central Coast Area
Health Service ("the AHS"). These
proceedings relate to a complaint of bullying and harassment made by the
Applicant against another
employee of the Respondent (â€oethe third
partyâ€), and an investigation report by Mr John Kilkeary
and
related documents and investigations (â€oethe Kilkeary
Reportâ€). The Applicant has been provided
with a complete
copy of the Kilkeary Report. The application relates to a decision by the
Respondent to release parts of the Kilkeary
Report to the third
party.
2
Mr Kilkeary conducted an investigation of allegations made by the Applicant
about bullying in the workplace, and the
handling of complaints at the request
of the Respondent. He was at all relevant times independent of the
Respondent.
3
The third party made a request under the Freedom of Information Act 1989
(â€oethe FOI Actâ€) for the Kilkeary Report. The
Respondent determined that parts of the report and
accompanying documents should
be released to her, and notified the Applicant about this determination.
4
The Applicant requested an internal review of the decision to release the
accompanying documents, citing clause 6
of Schedule 1 of the FOI Act - the
personal affairs exemption. The Respondent determined that the partial report
(pages 1 - 194)
and associated documents would be released to the third party.
5
The Applicant made a complaint about the handling of the FOI internal review
decision to release parts of the Kilkeary
Report and associated documents to the
NSW Ombudsman. It was determined that the release of the documents to the third
party was
not an unreasonable disclosure of information about the Applicant's
personal affairs.
6
The Applicant applied to the Tribunal for external review of the
Respondentâ€&tm;s determination.
7
The Respondent submits that its determination and the assessment of the NSW
Ombudsman are correct, and the decision
dated 29 December 2008 should be
affirmed.
8
The Applicant has relied upon the personal affairs exemption (clause 6 of
Schedule 1), confidential information (clause
13 of Schedule 1), legal
professional privilege (clause 10 of Schedule 1) and internal working documents
(clause 9 of Schedule 1).
The Applicant provided the Tribunal with various
tables containing between 80 and 400 points relating to exemptions to be applied
to the Kilkeary Report.
Personal affairs
9
The Applicant submitted that much of the material contained in the Kilkeary
Report was material relating to her personal
affairs. The Applicant also
sought to rely upon provisions of the Privacy and Personal Information
Protection Act 1998 (PPIP Act). The Tribunal does not have jurisdiction to
review the Respondentâ€&tm;s conduct under the PPIP Act, in the
absence of an application made under the PPIP Act. Section 55 of the PPIP Act
gives the Tribunal power to review the agency's conduct
where the complainant is
dissatisfied with the findings of an internal review or the action taken by the
agency in relation to the
application for review under the PPIP Act. The
present application relates only to the Applicantâ€&tm;s FOI
application.
10
Accordingly, I consider only the personal affairs exemption in Schedule 1 of the
FOI Act. Clause 6 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.
11 The term
â€oepersonal affairs†is not defined in the FOI
Act but in its context it has
been held to mean â€oethe composite
collection of activities personal to the individual
concernedâ€:
Commissioner of Police v District Court of New
South Wales (Perrinâ€&tm;s case) (1993) 31 NSWLR 606 per Kirby P at
625. In Perrinâ€&tm;s case at p 625 Kirby P (as he then was) decided
that the disclosure of the names
of police officers and employees involved in
the preparation of reports as part of their official duties within the NSW
Police, was
not information concerning the â€oepersonal
affairs†of those officers and employees. Rather it related
to the affairs of the Department.
12 In Chief
Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25, the Appeal
Panel decided at [26] that where a document deals with the conduct or
performance of an employee as part of the exercise
of management
responsibilities, the document does not concern the â€oepersonal
affairs†of the author.
The Panel distinguished the situation
where an employee complains to management about the conduct of another employee.
In that case
the complaint would concern the â€oepersonal
affairs†of the complainant. In TW v TX [2005]
NSWADT 262, the Tribunal said at [19]:
This means that if an employee is
complaining in their personal capacity about the conduct of another employee,
the information will
generally concern the complainantâ€&tm;s
personal affairs. On the other hand, if a supervisor, manager or investigator
produces a document in the course of exercising supervisory, management or
investigation responsibilities, the information in that
document, so far as it
relates to them, will not generally concern their personal affairs.
13 In TW v TX
the Tribunal distinguished between information given by supervisory staff as
part of their work duties and
information that was given in their personal
capacities, relating to an investigation into bullying, intimidation and poor
work performance.
14 Similarly in
P v Greater Western Area Health Service [2007] NSWADTAP 57 at [22], the Appeal
Panel held that information provided by an agencyâ€&tm;s employee
for the purpose of possible disciplinary
action may concern the personal affairs
of the employee making the
statement.
15 In
the present case, the Kilkeary Report contains the â€oepersonal
affairs†of the Applicant,
that is, information provided by
the Applicant for the purpose of the investigation and report: P v Greater
Western Area Health Service.
The Applicant also contended that the
Kilkeary Report contains personal affairs about other employees of the
AHS. It should also
be noted that the Kilkeary Report contains personal
information about the third party, who is the access applicant in the present
case. In Callejo and Dept of Immigration and Citizenship, Re (2010) 51 AAR
308; [2010] AATA 244, Deputy President Forgie discussed the difficulties
involved in interpreting section 41(2) of the Commonwealth Freedom of
Information Act (the parallel provision to clause 6) when the document contains
personal affairs about more than one person. She referred to the
complexity
involved where the personal information takes the form of an opinion expressed
about a person or a recounting of activities
in which a person has been
involved, the expression of the opinion or the recounting of the activities may
be regarded as personal
information about both the person recounting and the
person who is the object of the recounting: at [68]. Forgie DP then said
(footnotes
omitted):
[68] … It may be that the personal
information about each person can be separated. At times, however, shared
circumstances
may mean that personal information about one is necessarily
personal information about the other. In those circumstances, it may
not be
possible to separate the two.
[69] In Re Anderson and Australian Federal
Police 84. (Anderson) Deputy President Hall considered a decision made by the
Australian
Federal Police (AFP) following Mr Andersonâ€&tm;s request
for access and documents related to him. Mr Anderson had become
a member of the
Ananada Marga and argued that anything that related to that organisation or its
members related to him as well. Deputy
President Hall rejected his argument but
recognised that Mr Andersonâ€&tm;s personal affairs might be
inextricably interwoven
with the personal affairs of others, including other
members of the Ananda Marga. He gave particular attention to the way in which
the personal affairs might be unravelled and when disclosure was
unreasonable.
[70] As to the unravelling, Deputy President Hall formulated a
test to assist him in deciding whether information relating to one
person can be
information relating to another. He said:
Where information involving the
applicant and another person or persons is interwoven, the test that I have
applied in deciding whether
the information relating to the third party can also
fairly be described as information relating to the applicant is to ask whether
the quality or completeness of the information relating to the applicant is
diminished or impaired by deleting the reference to the
third
partyâ€&tm;s affairs. If it is not diminished or impaired, the
probabilities are that the information with respect
to the third party does not
also relate to the applicant. A claim of exemption under section 41(1) may then
need to be considered.â€85.
[71] Deputy President Hall had
already referred to the difficulties in interpreting ss 41(1) and (2)
saying:
As a matter of logic, this loop back to section 41(1) creates
difficulties. However, it is my view that in deciding what constitutes the
‘personal affairsâ€&tm;
of the person seeking
access it is appropriate to have regard to the extent to which the
applicantâ€&tm;s affairs are
inextricably interwoven with the
affairs of other persons. There will be circumstances where disclosure of the
third partyâ€&tm;s
affairs as part of the
applicantâ€&tm;s affairs may well involve an
‘unreasonable disclosureâ€&tm;
within the meaning
of section 41(1). In such a case, a claim of exemption under section 41(1) is
appropriately mounted. However, where it is clear that, by reason of the
relationship or interaction between the parties, the
information is such that it
would in any event be known to the applicant and its disclosure to the applicant
as matter relating to
him would not be likely to be objected to, nothing is to
be achieved by mounting claims of exemption. It seems to me to be consistent
with the object and purpose of the Act for such information to be disclosed. No
question of invasion of privacy would be involved
in those
circumstances.â€86.
[72] This passage appears to suggest
that the â€oedifficulties†created by the
â€oeloop
back†to section 41(1) in section 41(2)
is overcome by considering whether disclosure of the third
partyâ€&tm;s
personal affairs would be unreasonable. That this is
indeed the suggestion is confirmed when the Deputy President goes on to consider
whether disclosure to Mr Anderson of personal information relating to other
persons would be an unreasonable disclosure of personal
information relating to
those persons. He said:
Finally, the important principle to keep in mind is
that, by virtue of section 41, information of such a nature that its disclosure
under the Act would involve an unreasonable disclosure of the personal affairs
of a person is accessible only by that person (or
a person acting with his
authority) exercising his personal right of access to that information. It is
not accessible by a person
exercising the general right of access created by
section 11 (see also the discussion in I and EA [Re Anderson and Department of
Immigration and Ethnic Affairs (1986) 11 ALN N233].
Thus, in the present
case, I do not believe that it could be said to involve the unreasonable
disclosure of the personal affairs of
Messrs Alister and Dunn to disclose to Mr
Anderson a document relating to his own affairs which also reveals that those
two men were
charged and convicted, jointly with Mr Anderson, of conspiracy to
murder. Equally, in my view, it cannot constitute unreasonable
disclosure of the
personal affairs of a third person to disclose to Mr Anderson a document
recording what Mr Anderson said about
a third person or recording what was said
to the third person in the presence of Mr Anderson.
On the other hand, it is,
prima facie, an unreasonable disclosure of the personal affairs of a person for
the police to disclose a
document recording criminal charges and convictions
against that person to anyone other than the person concerned. Indeed, the
release
of any information with respect to persons recorded on police files
could be potentially embarrassing or damaging to those persons:
see Kahn and
Australian Federal Police (1985) 7 ALN N 190; cf Re Hall and Australian Federal
Police (unreported, No V85/3, 30 January
1986). The more prejudicial the
information, the greater the likelihood that its disclosure would be
unreasonable. In some cases
the mere fact that the information emanates from
police files may carry an implication that the person has come under
unfavourable
police attention. Information of this sort is not information that,
in normal circumstances a person would be content to have released
to anyone who
may seek it … â€87.
[73] Mr Horan urged
me to adopt Deputy President Hallâ€&tm;s interpretation and to set
aside my own in McKinnon and Powell
v Department of Immigration and Ethnic
Affairs88. (McKinnon and Powell). In that case, I adopted Deputy President
Hallâ€&tm;s
test in deciding whether personal information relating
to a third party can also fairly be described as personal information relating
to the person requesting access. Mr Powell had asked the Department of
Immigration and Ethnic Affairs (DIEA) for access to certain
documents. His wife,
Mrs Powell, and Mrs McKinnon sought review of DIEAâ€&tm;s decision
to grant him access to letters
that each of them had written notifying that they
had withdrawn their sponsorship of Mr Powell in his application for a visa to
enter
Australia.
[74] I found that the removal of the telephone numbers of
Mrs McKinnon and Mrs Powell from the letters did not detract from the personal
information relating to Mr Powell. Otherwise, much of the personal information
about Mr and Mrs Powell was inextricably interwoven
and related to their lives
together. I concluded:
It is only in relation to the general comments of Mrs
McKinnon and of their addresses and telephone numbers that I must consider
whether
disclosure would be unreasonable. The remaining information concerns the
personal affairs of both Mrs Powell and Mr Powell whether
that information is in
Mrs Powellâ€&tm;s letters or in Mrs McKinnonâ€&tm;s As
the personal information cannot
be separated and as the effect of section 41(2)
is that a claim for exemption cannot be successful in relation to a document
containing
personal information about Mr Powell, the documents cannot be exempt
under section 41 in relation to that information. The effect
of section 41(2) is
that it is not appropriate to consider whether disclosure to Mr Powell of
personal information about himself
would be
unreasonable.â€89.
[75] My approach to section 41(2) in
McKinnon and Powell where I could not disentangle much of the personal
information about Mr and
Mrs Powell is quite different from that in Anderson.
Deputy President Hall did not suggest that he could not disentangle the personal
information. Rather, it was a case in which the personal information of others
was known to the applicant requesting access to the
documents containing it.90.
That will often be the case but it is possible to imagine cases in which it will
not be known. While
it is a difference between the cases, I feel that it would
be disingenuous to distinguish the two cases on that basis for the approaches
are quite different. I am not wedded to my approach in McKinnon and Powell and
will consider the matter again from first principles.
[76] The difference
between Anderson and McKinnon and Powell is also one that is found between the
latter case and Re Carter and Department
of Health (ACT) 91. (Carter). Carter
concerned a document prepared by a qualified social worker of the Child at Risk
Assessment Centre
at the Woden Valley Hospital regarding children. Mr Carter was
the childrenâ€&tm;s maternal grandfather and the
childrenâ€&tm;s
mother had alleged that he had sexually abused her
as a child and that he had also sexually abused one of her
friendâ€&tm;s,
referred to as â€oeXâ€.
Mr Carter sought access to the document under the Freedom of Information Act
1989 (ACT) (ACTFOI) in order to identify the friendâ€&tm;s identity
so that he could clear himself of the allegation. The
report was prepared on a
court order and sent to the Community Advocate and the Family Services Branch.
The social worker informed
those whom she interviewed of these facts. Mr Carter
already knew much of the information and also knew that the
childrenâ€&tm;s
father had made allegations of sexual abuse against
him.
[77] Professor Curtis said:
20. On one view, the information in
question concerns the personal affairs of 3 persons. One is the father of the
children, in that
it relates to a (presumably) private conversation he had with
‘Xâ€&tm;. The second is
‘Xâ€&tm;,
in that it relates to an allegation
that she had been sexually abused. The third is the applicant himself, in that
it contains an
allegation that he has sexually abused
‘Xâ€&tm;. Assuming, for the purpose of analysis,
that the information
is information concerning the personal affairs of those 3
persons, the issue is whether it is exempt from disclosure under section
41 of
the FOI Act. To the extent that the information relates to Mr Carter, it is not
exempt under that section. The section expressly
provides that it does not apply
only because the information concerned is information relating to the personal
affairs of the applicant.
Where, as in the present case, the information also
relates to the personal affairs of others, what has to be considered is whether
disclosure to the applicant would be an unreasonable disclosure of the personal
affairs of those others.
21. In this case, the identity of the
applicant is significant. If the person seeking access were someone else, it may
well be that,
depending on the circumstances, access should be denied on the
ground that there would be an unreasonable disclosure of the personal
affairs of
Mr Carter. Because Mr Carter is the applicant, that ground is not available to
deny access. In seeking access, Mr Carter
is seeking to exercise a right of
access which is personal to him and which is not available to a member of the
general public. Thus
the issue whether the giving of access would be an
unreasonable disclosure of the personal affairs of the
childrenâ€&tm;s
father or of ‘Xâ€&tm;
must be determined on the basis that the giving of access would be a disclosure
to Mr Carter and not to a member of the general public; Re Anderson and
Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355.â€92.
[78]
There is no suggestion in this case that the personal information relating to
the three persons could not be separated. Indeed,
the contrary would appear to
have been the case for Professor Curtis has considered issues relating to the
grant of access to Mr
Carter to his own personal information and the grant of
access to him to personal information relating to the
childrenâ€&tm;s
father and to X. The personal information could not
be separated in that way in McKinnon and
Powell.
16 As the
Kilkeary Report contains personal affairs of the Applicant, the third party and
other co-workers, it is prima
facie exempt material. It would be
impossible to disentangle the personal affairs of the Applicant from those of
the third party.
The Kilkeary Report is an investigation into the third
partyâ€&tm;s conduct based on the Applicantâ€&tm;s
complaints. However, the second part of the personal affairs exemption test is
that the disclosure of the information would be unreasonable.
17 In Gilling v
General Manager, Hawkesbury City Council [1999] NSWADT 43, it was held that a
number of matters may be relevant to that question, such as the views of the
third parties (i.e. the persons
to whom the information relates); the nature and
extent of the prejudice to the third parties if the information is disclosed;
and
whether the disclosure would serve the public interest purposes of the FOI
Act. In Colakovski v Australian Telecommunications Corporation
[1991] FCA 152; (1991) 29 FCR
429, it was held that what was "unreasonable" was to be judged by public
interest considerations, including the public interest that
information
concerning a personâ€&tm;s personal, business or professional
affairs were excepted from the general right
of public access to information
held by government
agencies.
18 In
Chief Executive Officer, State Rail Authority v Woods (No 2) [2003] NSWADTAP 39
and Keriakes v State Rail Authority [2003] NSWADT 191, the disclosure of names
of workers on a petition complaining about a co-worker was held to be
unreasonable, because of the possibility
of harassment and victimisation of the
signatories, and inhibition of the flow of information to the agency. The
situation is quite
different in the present case, where the Kilkeary Report
constitutes an investigation into the Applicantâ€&tm;s grievances
with a co-worker, the third party. It is clear from the Report itself that
the third party was given an opportunity to respond to
the allegations by the
Applicant.
19 In Re
Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355, Hall
DP reasoned, especially at 367, that, where the personal information of an
applicant is inextricably interwoven with the personal
information of others,
section 41(2) cannot operate, as it might have done in this case had access been
granted, to subvert the operation
of section 41(1). The Deputy President said in
that context, at [49]:
There will be circumstances where disclosure of the
third party's affairs as part of the applicant's affairs may well involve an
â€oeunreasonable
disclosure†within the meaning
of section 41(1). In such a case, a claim of exemption under section 41(1) is
appropriately
mounted. However, where it is clear that, by reason of the
relationship or interaction between the parties, the information is such
that it
would in any event be known to the applicant, and its disclosure to the
applicant as matter relating to him would not be
likely to be objected to,
nothing is to be achieved by mounting claims of exemption. It seems to me to be
consistent with the object
and purpose of the Act for such information to be
disclosed. No question of invasion of privacy would be involved in those
circumstances.
20
The documents that will be released to the third party are pages 1 - 194 of the
Kilkeary Report and the attachments that
relate to that part of the report.
That part of the Report relate solely to the investigation and review of
findings relating to
a grievance lodged by the Applicant against the third
party.
21
In my view, the public interest test favours release of the Kilkeary Report to
the third party who is already aware of
the allegations and should have received
a copy as a matter of fairness.
22 The AHS has
agreed that the attachments to the Kilkeary Report that contain the medical
information should be excluded
from production to the third party. The medical
information in the Report and attachments is exempt from release: Department of
Social
Security v Dyrenfurth [1988] FCA 148; (1988) 15 ALD 232.
Documents containing
confidential
material
23
Clause 13 of Schedule 1 of the FOI Act provides:
13 Documents
containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an
action for breach of confidence, or
(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.
24 In
Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held
that the words â€oefor an action of breach of confidence in the
Queensland FOI Act should be taken to refer
to a legal action brought in respect
of an alleged obligation of confidence in which reliance was placed on one or
more of the following
causes of action: (i) a cause of action for breach of an
obligation of confidence; (ii) a cause of action for breach of a contractual
obligation of confidence; (iii) a cause of action for breach of a fiduciary duty
of confidence and where account is taken of the
recognised defences to an action
for breach of confidence. It was further held that the test of exemption
was to be evaluated by
reference to a hypothetical legal action in which there
is a clearly identifiable plaintiff possessed of appropriate standing to
bring a
suit to enforce an obligation of confidence said to be owed to that plaintiff in
respect of information held by the agency
to which the relevant FOI application
was made.
25 Re
B has been followed by this Tribunal in Eyes v Wyong Shire Council [1999] NSWADT
139 and Public Service Assn and Professional Officers Assn, Amalgamated Union of
NSW v Premierâ€&tm;s Department [2002] NSWADT 277 for the purposes
of clause
13(a).
26 Four
elements necessary to be proven by a plaintiff in an action for breach of
confidence were listed by Gummow J in
Corrs Pavey Whiting and Byrne v Collector
of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434:
(i) to identify with specificity, and not
merely in global terms, that which is said to be information in
question;
(ii) the information has the necessary quality of confidentiality
(and is not, for example, common or public knowledge);
(iii) the information
was received by the defendant in such circumstances as to import an obligation
of confidence; and
(iv) there is actual or threatened misuse of that
information.
27
An additional criterion was included by Gummow J in Smith Klein French
Laboratories (Aust) Ltd v Department of Community
Services and Health [1989] FCA 384; (1990) 22
FCR 73, that it is necessary for the detriment to be occasioned to the
original confider of the confidential
information.
28
Because the Applicant was unable to articulate with any specificity rather than
in global terms, that which is said to
be information obtained in confidence, a
claim based on clause 13(a) must fail.
29 Documents
exempt by clause 13(b), must be such that they:
- would disclose information
obtained in confidence,
- could reasonably be expected to prejudice the
future supply of information, and
- would, on balance, be contrary to the
public
interest.
30 The
Applicant relied primarily upon two matters in relation to this aspect of her
case. Firstly, she relied upon the
undertakings Mr Kilkeary provided to her,
which she contends relate to the attachments to the Kilkeary Report.
Secondly, she relied
upon the Tribunalâ€&tm;s decision in Ganley v
Northern Sydney Central Coast Area Health Service [2009] NSWADT 161
(â€oethe 2009 Ganley decisionâ€), where the
Tribunal determined that the Applicantâ€&tm;s
application for the
release of the witness statements of those who provided information to Mr
Kilkeary and Mr Kilkearyâ€&tm;s
handwritten notes be refused, on the
basis that the witness statements were provided in confidence. The
Tribunal accepted the evidence
of Mr Kilkeary that he had assured the witnesses
involved that the interviews were conducted on a confidential basis and he would
not disclose anything he was told by the interviewees without their express
permission. Deputy President Handley said:
64 The exemption conferred
by cl 13(b) applies if three requirements are satisfied. First, the information
must be obtained in confidence.
Second, disclosure of that information could
reasonably be expected to prejudice the future supply of such information to the
Government
or to an agency. In McGuinness v Bathurst Regional Council [2005]
NSWADT 152 (‘McGuinnessâ€&tm;), at [8], Deputy
President Hennessy said:
â€oeWhether or not disclosure could
reasonably be expected to prejudice the future supply of such information does
not
necessarily depend on whether the informant herself could reasonably be
expected to refuse to supply such information in the future.
While that evidence
is relevant, the Tribunal must answer a broader question, that is whether
disclosure could reasonably be expected
to prejudice the future supply of such
information from a substantial number of the sources available or likely to be
available to
[the agency] ... (Re B and Brisbane North Regional Health Authority
[1994] QICmr 1; (1994) 1 QAR 279 at 341).â€
65 The third requirement is
that the disclosure would, on balance, be contrary to the public interest. I
note that in WorkCover Authority
of NSW v Law Society of NSW [2006] NSWCA 84, at
[151], the NSW Court of Appeal, referring to the objects of the FOI Act set out
in section 5(2)(a) and (b), recognised that the
right to be given access to
documents held by an agency is subject to such restrictions as are reasonably
necessary for the proper
administration of the
Government:
â€oeDetermining whether documents should be disclosed
involves balancing those two matters. Thus, ... testing whether
disclosure of
documents would be contrary to the public interest requires the decision-maker
‘to weigh the public
interest in citizens being informed of
the processes of their Government and its agencies on the one hand against the
public interest
in the proper working of Government and its agencies on the
otherâ€&tm;: Harris v Australian Broadcasting Corporation
[(1983) [1983] FCA 242; 78
FLR 236] (at
246).â€
31
The Tribunal found all three of the requirements for exemption pursuant to
clause 13(b) were made out in relation to
the witness statements of those who
provided information to Mr Kilkeary and Mr Kilkearyâ€&tm;s
handwritten notes. The
Applicant submitted that the same considerations
apply in respect of the whole of the Kilkeary
Report.
32 The
Kilkeary Undertakings. Mr Kilkeary provided a confidential statement to
the Tribunal dated 2 December 2009, in which
he denies that the undertakings
dated 20 March 2006 and 12 July 2007 were made in relation to the documents
attached to his Report.
He stated that he kept the two folders of documents to
which the undertakings relate. Mr Kilkeary said other than policy
documents
included in those documents which are publicly available, he did not
refer in the text of the Kilkeary Report, by attachment, to
any of those
documents. Mr Kilkeary also provided copies to the Tribunal of the documents to
which the undertakings relate. I accept
Mr Kilkearyâ€&tm;s evidence
that the undertakings did not relate to the whole of the Report, but to the
specific information
which was provided to the Tribunal and was not included in
the Report.
33
Nevertheless, it appears from the 2009 Ganley decision that the witnesses were
promised confidentiality by Mr Kilkeary
in relation to the information they
provided him. On the other hand, it appears that Mr Kilkeary promised that he
would not disclose
anything he was told by the interviewees without their
express permission. On that basis, I accept that it was Mr
Kilkearyâ€&tm;s
intention that the Kilkeary Report would only
contain material that the interviewees consented to include in
it.
34 I am also
satisfied that the information that the Applicant provided to Mr Kilkeary was
given to him in confidence. I
note however that the Applicant would have known
that Mr Kilkeary would provide a report to the AHS and that at least some
aspects
of the information that she was providing would be incorporated in that
report. In those circumstances it would not be reasonable
to expect that any
promise of confidentiality by Mr Kilkeary would be in regard to the totality of
the information
provided.
35
Nevertheless, I accept that the first limb of clause 13(b) is
satisfied.
36 As
has previously been noted, the exemption conferred by clause 13(b) only applies
if the three requirements are
satisfied.
37 I
have already indicated above that it is my view that the public interest favours
release of the Kilkeary Report to
the third party. It is therefore unnecessary
to consider whether disclosure of the information could reasonably be expected
to prejudice
the future supply of such information to the Government or to an
agency. Nevertheless, I will briefly consider the
issue.
38 As has
been noted above, release of witness statements and other handwritten notes held
by Mr Kilkeary was refused in
the 2009 Ganley decision. That material is not
included in the material that has been sought in the present matter. I am not
satisfied
that the release of the Kilkeary Report to the third party would
prejudice the future supply of such information by the individuals
who provided
information to Mr Kilkeary. Nor am I satisfied that the release of the Kilkeary
Report to the third party would prevent
the Applicant supplying such information
in the future. Whilst I accept that the Applicant is concerned about the
investigation process
and other issues relating to the Kilkeary Report, I do not
accept that those concerns would prevent her from raising similar issues
in the
future.
39 In the
circumstances, I am not satisfied that the second and third limbs of clause
13(b) are made out.
Documents subject to legal professional
privilege
40
Clause 10 of Schedule 1 of 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.
(2) A
document is not an exempt document by virtue of this clause merely because it
contains matter that appears in an agencyâ€&tm;s
policy
document.
41 In
WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502; [2006] NSWCA
84, the Court of Appeal said (at [67]):
Legal professional privilege is a
rule of substantive law which enables a person to resist the giving of
information or the production
of documents to a third party which would reveal
confidential communications between the person and his or her lawyer made for
the
dominant purpose of giving or obtaining legal advice or the provision of
legal services, including representation in legal proceedings:
Daniels Corp
International Pty Ltd v Australian Competition and Consumer Commission (2002)
213 CLR 543; [2002] HCA 49 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ;
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49;
[1999] HCA 67.
42
In Saggers v Attorney Generalâ€&tm;s Department [2005] NSWADT 193,
the Tribunalâ€&tm;s President adopted Lockhart Jâ€&tm;s
description of the categories of documents to which
legal professional privilege
applies in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at
[21]:
(a) Any communication between a party and his professional legal
adviser if it is confidential and made to or by the professional
adviser in his
professional capacity and with a view to obtaining or giving legal advice or
assistance; notwithstanding that the
communication is made through agents of the
party and the solicitor or the agent of either of them.
(b) Any document
prepared with a view to its being used as a communication of this class,
although not in fact so used.
(c) Communications between the various legal
advisers of the client, for example between the solicitor and his partner or his
city
agent with a view to the client obtaining legal advice or assistance.
(d) Notes, memoranda, minutes or other documents made by the client or
officers of the client or the legal adviser of the client of
communications
which are themselves privileged, or containing a record of those communications,
or relate to information sought by
the client's legal adviser to enable him to
advise the client or to conduct litigation on his behalf.
(e) Communications
and documents passing between the party's solicitor and a third party if they
are made or prepared when litigation
is anticipated or commenced, for the
purposes of the litigation, with a view to obtaining advice as to it or evidence
to be used
in it or information which may result in the obtaining of such
evidence.
(f) Communications passing between the party and a third person
(who is not the agent of the solicitor to receive the communication
from the
party) if they are made with reference to litigation either anticipated or
commenced, and at the request or suggestion of
the party's solicitor; or, even
without any such request or suggestion, they are made for the purpose of being
put before the solicitor
with the object of obtaining his advice or enabling him
to prosecute or defend an action.
(g) Knowledge, information or belief of
the client derived from privileged communications made to him by his solicitor
or his agent.â€&tm;
43 The Court of
Appeal in WorkCover Authority at [86] approved of the Appeal Panel's analysis
where it held that "as long
as the overall environment is one of legal advice
the courts will allow the privilege to cover broader advice which is of a
non-legal
character, and will protect documents of an administrative character
connected to the giving of the legal
advice".
44 In
order to qualify as legal professional privilege, a lawyer must make a
communication in their professional capacity.
In the present case, the Applicant
has not articulated any basis upon which she could claim the Kilkeary Report
contains information
subject to legal professional privilege. Mr Kilkeary is not
a lawyer and was not engaged by the Applicant to provide legal advice
to her in
relation to her allegations against the third party.
Internal
working
documents
45
Clause 9 of Schedule 1 of the FOI Act provides:
9 Internal
working documents
(1) A document is an exempt document if it contains
matter the disclosure of which:
(a) would disclose:
(i) any
opinion, advice or recommendation that has been obtained, prepared or recorded,
or
(ii) any consultation or deliberation that has taken place,
in
the course of, or for the purpose of, the decision-making functions of the
Government, a Minister or an agency, and
(b) would, on balance, be
contrary to the public interest.
(2) A document is not an exempt
document by virtue of this clause if it merely consists of:
(a) matter
that appears in an agencyâ€&tm;s policy document, or
(b)
factual or statistical
material.
46 The
purpose of the exemption is to protect documents concerning the decision-making
and policy-making functions of an
agency, if their disclosure would be contrary
to the public interest. The protection is afforded where effective
administration would
be impeded by the loss of confidentiality. If a final
decision has been made, there will need to be clear and compelling reasons
as to
why it is contrary to the public interest to release such documents: see The NSW
FOI Manual at
13.1.30.
47 The
Applicant has suggested that the Kilkeary Report is exempt from disclosure under
the FOI Act because it constitutes
an internal working document for the purposes
of clause 9. The Respondent submitted that the documents which the
Applicant contends
should be subject to the internal working documents exemption
do not constitute documents that would disclose opinion, advice, recommendation,
consultation or deliberation in the course of the functions of the
AHS.
48 The
elements of the internal working documents exemption are that the document must:
-disclose an opinion, advice or recommendation; or any consultation or
deliberation that has taken place
- in the course of, or for the purpose of,
the decision making functions of an agency and
- would, on balance be
contrary to the public interest.
49 In the
present case it is clear that the Kilkeary Report contains recommendations to
the AHS. The final requirement
of Clause 9(1) is that disclosure would, on
balance, be contrary to the public interest. Public interest is not defined in
the FOI
Act, but section 59A is relevant. That section states that:
For the
purpose of determining under this Act whether the disclosure of a document would
be contrary to the public interest it is
irrelevant that the disclosure may:
a) cause embarrassment to the Government or a loss of confidence in the
Government, or
b) cause the applicant to misinterpret or misunderstand the
information contained in the document because of an omission from the
document
or for any other reason.
50 In Latham v
Director General, Department of Community Services [2000] NSWADT 58 (upheld on
appeal [2000] NSWADTAP 21), the Tribunal said:
51 The public policy
underlying the internal working documents exception is that it is legitimate to
preserve the secrecy of recommendations
and deliberations among public servants
so as to protect the "integrity and viability of the decision-making process."
(See Re Murtagh
and Commissioner of Taxation [1984] AATA 249; (1984) 6 ALD 112
at 123.) However, as I concluded in Bennett -v- Vice Chancellor, University of
New England [2000] NSWADT 8 "protecting the viability of the decision-making
process" without more, is too vague a concept to be considered a legitimate
public
interest.
52 When considering whether disclosure would be contrary to
the public interest appropriate weight must be accorded to the public
interest
objects of the legislation. In the New South Wales context, one of the objects
of the FOI Act is to "obtain access to information
held by Government" (s
5(1)(a)). The Act seeks to achieve this by means which include "conferring on
each member of the public a
legally enforceable right to be given access to
documents held by the Government, subject only to such restrictions as are
reasonably
necessary for the proper administration of the Government" (s
5(2)(b)).
53 In this case Mr Latham has an interest, as a member of the
public, in having access to documents which concern him to enable him
to
understand the basis and reasoning of the decisions which relate to him and to
evaluate the conduct of the agency in relation
to that decision making process.
51 In Latham Mr
Latham sought access to an Investigation Report relating investigations to
determine whether any disciplinary
or other action should be taken against him
by his employer. In the present case, there is a public interest in the
third party
having access to the Kilkeary Report to enable her to understand the
basis and reasoning of the decisions the agency made. In my
view, the asserted
clause 9 exemption is not made
out.
Conclusion
52
In my view, none of the exemptions that the Applicant has asserted have been
made out. It follows that the decision The
application relates to a decision to
release parts of the Kilkeary Report to the third party should be
affirmed.
Decision
The decision under review is
affirmed.
I hereby certify that this is a true and accurate record
of the reasons for decision of the Administrative Decisions
Tribunal.
Registrar
**********
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