Whitaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183

Some public interest considerations favouring disclosure may be significant and merit additional weight in matters where there is an apparent conflict between the conclusions reached in different types of investigations; and claims of confidentiality may depend on the type of investigation undertaken. Read the decision at NSW caselaw: Whitaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183

What you need to know
The Applicant sought access to information held by Illawarra Shoalhaven Local Health District (the Agency) concerning her complaint of bullying and harassment. The Agency identified a number of documents as responsive to the application and refused access to the information in full and some information in part. In the Tribunal proceedings the Applicant initially identified 9 documents to which she sought access, however by the conclusion of proceedings the Applicant confirmed she was seeking access to 4 documents: 9 and 60 (which are the same) and 36 and 38.

The impact of the personal factors of the Applicant on her application
The Tribunal’s task for taking into account the personal factors of an application when examining the effect is has on the considerations in clauses 2-5 of the Table to section 14 is outlined by section 55(3) of the GIPA Act. The Applicant relied upon a number of medical reports to show that the full disclosure of information sought would be beneficial to her mental health and the Tribunal accepted [101] that the following are relevant personal factors to bear in mind when examining the public interest considerations raised in respect of the information:

• it relates to the Applicant;
• her treatment at work;
• the frustration of her ambitions; and 
• her desire to understand precisely what happened in the two workplace investigations with contradictory outcomes.

The Tribunal at [102] also agreed with the Information Commissioner’s report that the following public interest considerations should be considered:

1. Some information in issue is personal information (information or opinion) about the Applicant
2. The disclosure of the information could be reasonably expected to contribute to the administration of justice
3. The disclosure of the information could be reasonably expected to promote accountability in the agency’s decision making processes
4. The disclosure of the information could be reasonably expected to promote openness and transparency in the agency’s operations.

The Tribunal identified another consideration in favour of release at [103]: to inform the public about the content and operation of the agency’s human resource management policies, especially with respect to workplace bullying.

Further the Tribunal identified at [104] that each of the public interest considerations favouring disclosure deserved real weight (emphasis added). As there was at least some conflict between the conclusions reached following the workers compensation investigation (psychological injury due to workplace bullying) and that of the misconduct investigation (allegations of bullying not sustained) those considerations numbered (2) (3) and (4) merit additional weight (emphasis added).

The Tribunal applied each of the considerations to the 4 documents sought by the Applicant. The Tribunal accepted that the redacted information from documents 9 and 60 is personal information within the meaning of section 4 of the Privacy and Personal Information Protection Act 1998 (PPIP Act). The
Tribunal also accepted that documents 36 and 38 contain information and opinion about the authors and others, including the Applicant [137]. The Tribunal assessed that the public interest consideration against disclosure deserved some weight as far as it related to personal information of and opinion relating to persons other than the Applicant. The Tribunal at [138] observed that “there is no public interest in preventing the Applicant from seeing information and opinion about herself. Indeed s.14 of the PPIP Act gives her the right to access that information”.

In relation to claims of confidentiality the Tribunal considered the purpose the information was prepared for, being a factual investigation for a Worker’s Compensation investigation and not as the Agency had identified, for a misconduct investigation [126]. The Tribunal also considered the procedural entitlements of workers under the Workers Compensation Scheme in NSW. The Tribunal was not satisfied that the information in documents 36 and 38 was prepared or supplied for the purpose of a confidential misconduct investigation, and that no assurance of confidentiality was given by the investigator [122] On that basis the Tribunal was not satisfied that the release of information would prejudice the supply of confidential information to the Agency [123].

Legislative background

• 1(d) supply of confidential information;
• 1(f) effective exercise of agency’s functions;
• 1(g) action for breach of confidence;
• 3(a) personal information;
• 3(b) contravene IPP/HPP;
• 3(f) risk of harm or serious harassment;
• 4(d) legitimate business;
• Section 55 Personal factors of application.

Factual background
The Applicant made an access application to the Agency seeking information in respect of her complaint of bullying and harassment. The Applicant had made a workers compensation claim which was referred by the Agency to its insurer. The insurer appointed Procare to conduct a factual investigation into the claim. At around the same time the Agency claimed it commenced a misconduct investigation.

The Agency in response to the access application decided to release some information in full, some partially and to refuse access to some information. The Applicant applied for external review by the Information Commissioner who recommended the Agency reconsider its decision by way of internal review. The Agency accepted the recommendation and the reconsidered decision essentially confirmed the original decision.

Tribunal findings
The Tribunal did not accept the Agency’s submissions that a misconduct investigation commenced concurrently with the workers compensation investigation [126]. Accordingly the Tribunal only considered the facts relevant to the conduct of the workers compensation investigation. The Tribunal found that the considerations 1(d) 1(f) 1(g) and 4(d) were not made out.
The Tribunal found that considerations 3(a) and 3(b) in respect of other persons were made out for documents 9 and 60 and 36 and 38 [149] and [150], and confirmed the Applicant was entitled to information or opinion about herself in those documents [135], [138]. There was no evidence before the Tribunal to support a claim in respect of consideration 3(f).

Tribunal outcome
The Tribunal partially affirmed the Agency’s decision (in respect of documents 9 and 60) and partially set aside the decision (in respect of documents 36 and 38). The agency is to re-determine the decision in respect of documents 36 and 38 within 30 days of the dates of the decision (15 August 2018).
The Tribunal set a timetable for any further submissions by the parties in relation to the application for costs by the Agency, if it wishes to pursue that application.