Information Access Case Note: Pallier v NSW State Emergency Service [2016] NSWCATAD 293
What you need to know
The Applicant applied to the SES for access to all documents of a workplace investigation process/report examining allegations including an allegation treated as a public interest disclosure under the Public Interest Disclosures Act 1994 (PID Act). There were three reports: MCAA, IAB and Nemesis. The SES refused access.
The Tribunal examined each of the considerations against disclosure applied by the SES together with the considerations for and against disclosure to the information contained in the reports (emphasis added), rather than the reports in totality. In balancing the public interests for and against disclosure, the Tribunal separated aspects of the workplace investigation reports: allegations and findings from evidence and analysis of evidence [65] and [70].
Public interest disclosure Clause 1 of Schedule 1 GIPA Act
It is conclusively presumed that there is an overriding public interest against the disclosure of information prohibited by section 22 of the PID Act [28]. The Tribunal needs to be satisfied that the disclosure made is a public interest disclosure and the disclosure might identify or tend to identify the person who made the disclosure before the conclusive presumption can be established [30]. The Applicant challenged whether a disclosure in the MCAA report was a public interest disclosure and stated that the identity of the person was known to him. The Tribunal held that it was irrelevant whether the Applicant knew the identity of the person who made the public interest disclosure, as supported by the definition of disclose in clause 1 of Schedule 4 to the GIPA Act [40]. The Tribunal found the conclusive presumption was established.
Applying considerations for and against disclosure to Investigation Reports
Although information contained in workplace investigations may be of a kind that falls within a number of considerations as identified by the SES (1(d) (prejudice the supply of confidential information), 1(g) (action for breach of confidence), and 3(a) personal information), the weighting of these considerations are important.
The Tribunal found, in applying 1(d) and 1(g), the balance lay in favour of notifying employees of disciplinary findings and conclusions in the investigation reports [66]. However the Tribunal also found that, given the confidential nature of evidence in the reports and ensuring cooperation in future investigations, the balance was not in favour of disclosure of evidence and the analysis of that evidence in the reports, [67] and the Tribunal made confidential orders as to how those parts of the reports should be redacted by balancing the public interest in favour of disclosure against the public interest in 1(d) and 1(g).
Risk of harm serious harassment or serious intimidation 3(f)
The Tribunal opined that the assessment of the risk must be objective. The Tribunal found the evidence in the report dated from 2013, and the SES did not provide evidence of the risk as it currently stands [85] and that the Applicant is no longer employed by the SES. The Tribunal concluded on balance, there insufficient evidence to make a finding that disclosing the information could reasonably be expected to expose anyone to a risk of serious harassment or intimidation [88].
Legal Professional Privilege Clause 5 of Schedule 1 GIPA Act
A claim of client legal professional privilege under section 118 of the Evidence Act 1995 must establish the elements required:
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a lawyer-client relationship,
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the advice or document must be confidential, and
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that it was produced for the dominant purpose of providing legal advice to a client.
The Tribunal was unable to infer the elements from the available evidence, and found that the conclusive presumption was not established [46].
Legislative background
Conclusive presumption against disclosure:
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Overriding secrecy under clause 1 to Schedule 1 of the GIPA Act- information was subject to the confidentiality guidelines under section 22 of the PID Act.
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Legal professional privilege under clause 5 to Schedule 1 of the GIPA Act – the information was privileged under a lawyer-client relationship.
Overriding presumptions against disclosure (table to section 14 of the GIPA Act):
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1(d) prejudice the supply of confidential information;
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1(g) action for breach of confidence;
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3(a) personal information;
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3(e) false and unsubstantiated defamatory allegations;
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3(f) risk of harm or harassment.
Factual background
The Applicant sought an external review by the Information Commissioner. The Commissioner’s review found the SES decision justified, with the exception of the claim of risk of serious harassment or serious intimidation in terms of 3(f). The Information Commissioner made no recommendations. The Applicant applied to the Tribunal for review.
Tribunal findings
The Tribunal found the balance in favour of releasing some information (allegations and findings) and against releasing some information (evidence), and that personal information could be redacted. Other information (the PID) was subject to the conclusive presumption.
Other matters
The Applicant also sought for the Tribunal to exercise powers to refer systemic matters to the Information Commissioner under section 111 of the GIPA Act, and make a report to the Minister on improper conduct under section 112 of the GIPA Act. The Tribunal declined to take the action sought as no evidence, facts or conduct was provided to warrant the Tribunal taking those actions.
Tribunal outcome
The Tribunal decided to partially affirm the decision of the SES and to partially substitute the decision. The Tribunal then made orders in relation to the release of parts of the MCAA report, and affirmed the SES’s decision in respect of the other disputed information.
