Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Charles v SafeWork NSW [2023] NSWCATAD 259 Hearing dates: 29 August 2023; 19 September 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: D Ziegler, Senior Member Decision: The decision of the respondent to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 is set aside and in substitution thereof a decision is made that the applicant be granted access to all of that information with the exception of: (a) The first word of line five; and (b) The words in line six after the words "Lee was" and before the words "I asked". Catchwords: ADMINISTRATIVE LAW – administrative review - government information – confidential information – personal information – secrecy provision – effective exercise of agency's functions - whether overriding public interest against disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 2022 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Battin v University of New England [2013] NSWADT 73 Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 Fraser v SafeWork NSW [2020] NSWCATAP 92 Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 Leech v Sydney Water Corporation [2010] NSWADT 298 Neary v State Rail Authority [1999] NSWADT 107 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Searle Australia Pty Ltd v PIAC [1992] FCA 241 Veall v Department of Planning and Environment [2018] NSWCATAD 47 Walker v SafeWork NSW [2022] NSWCATAD 94 Category: Principal judgment Parties: Lee Charles (Applicant) SafeWork NSW (Respondent) Representation: Solicitors: Self-represented (Applicant) Corporate Services, Department of Customer Service (Respondent) File Number(s): 2023/00134149 Publication restriction: Nil REASONS FOR DECISION 1. This is an application for administrative review of a decision of SafeWork NSW (SafeWork) concerning an application for access to information made by Ms Charles under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). 2. In her access application Ms Charles sought access to a one-page email dated 14 August 2013 and timestamped 12:01 pm which was sent by a manager employed by Ms Charles' former employer Anglican Care. The email appears at page 22 of a report released to Ms Charles in response to a previous access application. The email was referred to by the parties in the proceedings as "Page 22". For convenience, in this decision I will also refer to the email as "Page 22". 3. The dispute concerns the decision of Safework to redact part of line four, and all of lines five to ten, of Page 22. 4. For the reasons that follow I have decided to set aside the decision of the respondent to withhold that information and in substitution thereof to order that the applicant be given access to part of the information in lines four to ten of Page 22. Background 1. Ms Charles was previously employed with Anglican Care. 2. In about 2013 a dispute arose between Ms Charles and Anglican Care as a result of which Ms Charles alleged that she had sustained a psychological injury during her employment with Anglican Care. 3. On 14 November 2013 Ms Charles lodged a "Request for Service" form with SafeWork in relation to her grievances with Anglican Care. 4. Inspector Simpson is an inspector with SafeWork and was involved in responding to Ms Charles' request. In the course of investigating the issues arising from the request, Inspector Simpson obtained from Anglican Care various documents, including a copy of Page 22. 5. On 13 January 2023 Ms Charles made an access application to the respondent under the GIPA Act in which she sought an unredacted copy of Page 22 (the 2023 access application). 6. Ms Carla Williams is employed in the Privacy and Right to Information Team within the Department of Customer Service. SafeWork is part of the Department of Customer Service. Ms Williams was authorised by the principal officer of the respondent to decide the 2023 access application on behalf of the respondent. 7. On 28 February 2023 Ms Williams issued the respondent's decision to Ms Charles (the 2023 decision). A redacted version of Page 22 was provided to Ms Charles together with the 2023 decision. 8. On 27 April 2023 Ms Charles lodged this application in the Tribunal for administrative review of the 2023 decision. 9. On 15 May 2023 the Tribunal extended the time for Ms Charles to lodge the application to 27 April 2023. 10. Ms Charles confirmed at the hearing that the administrative review she seeks is limited to the decision of SafeWork to redact part of line 4 and all of lines 5 to 10 of Page 22 (the "redacted lines" or the "redacted information"). 11. I understand that Ms Charles wants access to the redacted information because she understands it includes personal information about her, and because she has grievances about the way in which SafeWork and other organisations handled her complaint, and is of the view that having access to an unredacted version of Page 22 will assist her to pursue any rights or remedies she may have in that regard. Page 22 1. The open evidence establishes that Page 22: 1. is primarily about Ms Charles and her grievances with Anglican Care; 2. was sent by a manager who was at the relevant time employed by Anglican Care; 3. is addressed to another employee of Anglican Care; and 4. contains business and operational information about Anglican Care. 1. Redacted versions of Page 22 have been provided to Ms Charles on three separate occasions. The first such occasion was in response to an application for access to information made by Ms Charles under the GIPA Act in 2014 (the 2014 access application). The second occasion was in response to an informal request for information made by Ms Charles under the GIPA Act in 2021 (the 2021 informal request). The third occasion was in response to the 2023 access application which is the subject of these proceedings. 2. Page 22 is one page in length and consists of 22 lines of text, the email header at the top (which includes a "from", "to", "date" and "subject" line) and the name and contact details of the sender at the bottom. 3. The redactions made in the copy of Page 22 provided to Ms Charles in response to the 2014 access application and the 2021 informal request are different to those made in response to the 2023 access application. 4. The redactions made in 2014 and 2021 were limited to lines four to ten of the email only. Relevantly, the name and contact details of the sender, the name of the recipient, text which referred to Ms Charles and other people by name, text containing business and operational information of Anglican Care, and the opinions of the author about certain matters, were disclosed to Ms Charles on those occasions. 5. In the version of Page 22 provided with the 2023 decision, most of line four and all of lines five to ten were redacted. In addition, the name and contact details of the sender, the name of the recipient, the names of Ms Charles and other persons, part of the email's subject line, and various sentences and phrases containing business and operational information of Anglican Care and the opinions of the author were also redacted. Evidence and materials 1. Each of the parties made written and oral submissions in relation to the application. 2. The respondent relied on: 1. an unredacted version of Page 22 (which was provided on a confidential basis); 2. a statement of Inspector Neil Simpson dated 6 June 2023; 3. a statement of Ms Williams dated 9 June 2023; and 4. a further statement of Ms Williams dated 17 August 2023. 1. Initially Ms Charles relied on two bundles of documents lodged on 26 July 2023. On the first day of the hearing it became apparent that only some of those documents had been provided to SafeWork. To avoid any confusion, an order was made for Ms Charles to file and serve a single bundle containing all of the documents on which she wished to rely. Ms Charles did so on 6 September 2023. On the second day of the hearing she confirmed that the bundle filed on 6 September contained all the documents on which she intended to rely. Thus I have only had regard to those documents when making this decision. 2. Many of the documents provided by Ms Charles were not relevant to the issues I must decide but were helpful in providing background information. 3. Ms Charles cross-examined both Ms Williams and Inspector Simpson. Applicable law Jurisdiction 1. Pursuant to s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of "reviewable decisions" made by "an agency". 2. A decision to refuse to provide access to information in response to an access application is a reviewable decision: GIPA Act s 80(d). 3. There is no dispute that the respondent is an agency for the purposes of the GIPA Act. 4. Accordingly, the Tribunal has jurisdiction to hear and determine this application. Administrative review 1. In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what is the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2). 2. The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3). The GIPA legislative scheme 1. The GIPA Act provides for the proactive release of government information as well as for the release of information in response to both formal and informal requests. 2. The objects of the GIPA Act as set out in s 3(1) are to maintain and advance a system of responsible and representative democratic government by authorising and encouraging public release of government information by agencies, giving the public an enforceable right to access government information, and providing that such access is restricted only when there is an overriding public interest against disclosure. 3. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. 4. Section 12 of the GIPA Act states that there is a general public interest in favour of the disclosure of government information. The Note to s 12(2) provides: The following are examples of public interest considerations in favour of disclosure of information— (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. Nothing in the GIPA Act limits any other public interest considerations in favour of disclosure which may be taken into account: s 12(2). 2. However, there is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13. 3. It is conclusively presumed that there is an overriding public interest against disclosure of the government information described in Schedule 1 to the GIPA Act: s 14(1). However, SafeWork does not assert that Schedule 1 applies to Page 22. 4. The public interest considerations listed in the Table to section 14 (the Table) are the only other considerations that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information: s 14(2). 5. The burden of establishing that the decision is justified lies on the respondent: s 105. 6. In this instance the respondent has identified clauses 1(d), 1(f), 3(a), 3(b), 6(1) and 6(2) of the Table as relevant considerations. 7. The Table relevantly provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)— (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. 1. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In applying the public interest test it is necessary for the Tribunal (as it was for the respondent) to adopt a staged approach to the issue as to whether there is an overriding public interest against the disclosure of government information: see Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [23] to [30]. This involves identifying the public interest considerations in favour of disclosure, identifying the public interest considerations against disclosure, and then determining where the balance lies between these competing public interests. 2. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by s 15 which provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles— (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. Work Health and Safety Act 1. SafeWork exercises powers and functions under the Work Health and Safety Act 2011 (NSW) (the WHS Act). The main object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces: s 3 WHS Act. The functions and powers of SafeWork under the WHS Act include to investigate contraventions of the Act. 2. SafeWork relies on s 271 of the WHS Act which provides: 271 Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7). (2) The person must not do any of the following— (a) disclose to anyone else— (i) the information, or (ii) the contents of or information contained in the document, (b) give access to the document to anyone else, (c) use the information or document for any purpose. Maximum penalty— (a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document— (a) about a person, with the person's consent, or (b) that is necessary for the exercise of a power or function under this Act, or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use— (i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or (iv) is necessary for the recognition of authorisations under a corresponding WHS law, or (v) is required for the exercise of a power or function under a corresponding WHS law, or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or (e) that is required or authorised under a law, or (f) to a Minister. (3A) Without limiting subsection (3), any information or document, including the following information or documents, lawfully obtained or accessed by a person exercising a power or function under this Act may be disclosed or given under subsection (3)(c)(v) to a corresponding regulator— (a) information provided, or a document produced, under section 155 or Part 9, (b) information or a document that is personal information or health information about an individual despite the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002. (4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless— (a) the disclosure is made with the consent of the complainant, or (b) the disclosure is required under a law. Maximum penalty— (a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units. SafeWork's submissions 1. SafeWork submits that there is an overriding public interest against disclosure of an unredacted version of Page 22, relying on clauses 1(d), 1(f), 3(a), 3(b), 6(1) and 6(2) of the Table. It says, in summary: 1. Page 22 was provided to SafeWork in the context of SafeWork, through Inspector Simpson, exercising its functions in the course of investigating a work health and safety matter. 2. The information included in the email was, it may be reasonably assumed, provided to Inspector Simpson in confidence to enable an investigation to be undertaken into alleged unsafe work practices. If its confidentiality were not assured, this would cause future persons to be less willing to provide information to SafeWork. 3. The email is protected by s 271 of the WHS Act which provides a comprehensive protection against disclosing any information which has come into the knowledge of SafeWork in the course of exercising its functions under that Act. The only applicable exception to s 271 in this instance is s 273(3)(a) which permits disclosure of information about a person with that person's consent. Neither the author nor the owner of the email have consented to its disclosure and indeed Anglican Care has specifically informed SafeWork that it does not consent to its release. 4. Release of an unredacted version of Page 22 would: 1. disclose personal information within the meaning of the Privacy and Personal Information Protection Act 2022 (NSW) (the Privacy Act) including identity and contact details as well as an opinion about a person whose identity is apparent or can reasonably be ascertained from the information or opinion; 2. Prejudice the supply to SafeWork of confidential information that facilitates the effective exercise of its function under the WHS Act; 3. Prejudice the investigative functions of SafeWork; and 4. Result in a contravention of s 271 of the WHS Act. Ms Charles' submissions 1. Ms Charles' submissions included a number of arguments which are not relevant to the administrative review of the decision to refuse access to the unredacted Page 22 Email. It is not necessary for me to repeat those points in this decision. In summary Ms Charles relevantly submits: 1. SafeWork has not provided any evidence to establish that Page 22 was provided to it in confidence. 2. Disclosure of Page 22 supports natural justice and procedural fairness. 3. Page 22 contains Ms Charles' personal information. 4. On balance the public interest in favour of disclosure outweighs the public interest against disclosure because the information could: promote open discussion of public affairs: enhance government accountability; contribute to positive and informed debate on issues of public importance; inform the public about operations of agencies in particular their policies and practices for dealing with members of the public; or reveal or substantiate that an agency or a member of an agency has engaged in misconduct of negligent, improper or unlawful conduct. Consideration Public interest considerations in favour of disclosure – s 12(1) 1. I accept that the redacted information contains personal information of Ms Charles in that it is information or an opinion about her. 2. I also accept that disclosure of an employer's internal communications provided to SafeWork in the course of an investigation about that employer might in some circumstances reasonably be expected to enhance SafeWork's accountability and to inform the public about SafeWork's operations, including the methods used to investigate allegations of unsafe work practices. 3. Ms Charles insinuated that SafeWork or Inspector Simpson had engaged in improper, negligent, biased or unlawful conduct when investigating her allegations of unsafe work practices. She made broad allegations in this regard, including that key documents had been excluded from the report prepared by SafeWork in relation to her complaint. She also relied on an email from a lawyer at University of Newcastle Legal Centre dated 14 February 2022 which she says concludes that Page 22 is a "smoking gun". 4. That email relates to a potential claim for negligence by Ms Charles against the law firm which represented her in her claim against Anglican Care. The email contains no advice or conclusions. It merely sets out issues identified for consideration after a discussion with Ms Charles, and includes a reference to Page 22 as the "smoking gun email". It does not explain what is meant by the term "smoking gun" in this context, why the email is a "smoking gun", or in whose opinion the email is a "smoking gun". A possible reading of that part of the email is that the author was merely reiterating something he had been told by Ms Charles. In any event there is certainly nothing in the Newcastle Legal Centre email which supports the contention that Page 22 might reveal or substantiate any misconduct, negligence or other wrongdoing on the part of SafeWork. 5. I am not satisfied on the basis of the limited materials before me that the release of an unredacted version of Page 22 could reasonably be expected to reveal or substantiate that SafeWork or Inspector Simpson engaged in any other improper, negligent or unlawful conduct when investigating Ms Charles' allegations of unsafe work practices. Accordingly, I have not considered this public interest consideration in favour of disclosure any further. 6. Ms Charles did not explain how, and there is nothing in the materials before me which advances her submission that, the other public interest considerations listed in s 12 apply to Page 22 and therefore I have not had any further regard to those matters. 7. Ms Charles also submitted that disclosure of Page 22 would support natural justice and due process. Ms Charles' submissions in this regard were very generalised and she did not make it clear how release of Page 22 would support these principles, or in what sense Ms Charles alleges she has been denied natural justice or procedural fairness by SafeWork. 8. On the basis of the material before me I am not satisfied that release of Page 22 would support these principles. Public interest considerations against disclosure – s 14(2) 1. As noted above, the respondent relies on the public interest considerations in cls 1(d), 1(f), 3(a), 3(b), 6(1) and 6(2) of the Table. 2. The public interest considerations against disclosure contained in the Table are dependent on whether the disclosure of the information in issue 'could reasonably be expected to' have the effect as prescribed in the relevant clause in that Table. Whether disclosure of the information in issue 'could reasonably be expected' to have the relevant effect is an objective one; that is to be approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 3. In Camilleri at [26], the Appeal Panel held that examination of whether there is a public interest consideration against disclosure needs to be done at a broader operational level of the relevant agency, rather that introducing particulars of the 'instant situation' that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations. 4. In the course of dealing with the access application, as required by s 54 of the GIPA Act, SafeWork sought the views of Anglican Care. At the time of the 2023 decision no response had been received. However, SafeWork again consulted with Anglican Care during the course of these proceedings and asked whether it would consent to the release of Page 22. Linda Wilson, Corporate Secretary and Executive Director of Quality, Risk and Safety informed SafeWork in an email dated 12 September 2023 that Anglican Care does not consent to release of Page 22 for the following reasons: 1. It was a record in an employment file; 2. The only reason it was disclosed was to demonstrate compliance with the regulator; 3. The contents of the document form an employment record and would not normally be disclosed by Anglican Care to an employee; 4. Anglican Care strongly maintains the view that employment records of this nature are held confidentially and beneficially to Anglican Care. 1. Anglican Care did not seek to appear and be heard in these proceedings (as it was entitled to do under s 104(3) of the GIPA Act). Clause 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agency's functions; 1. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)). 2. SafeWork submitted that disclosure of the redacted information could reasonably be expected to prejudice the supply to it of confidential information that facilitates the effective exercise of its functions. Confidentiality 1. For information to come within clause 1(d), it must have been obtained in confidence. In Camilleri the Appeal Panel stated at [33] that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it". 2. It is not disputed that Page 22 was provided to SafeWork by Anglican Care in the course of Anglican Care investigating the issues complained of by Ms Charles. In any event this is established by the evidence of Inspector Simpson. It is also not disputed that the information was obtained by SafeWork in the exercise of its functions under the WHS Act. Section 271 of that Act provides that a person who exercises functions under the WHS Act must not disclose, use or provide anyone else with access to the information. Significant penalties apply for contravention of that provision. 3. As noted above, Anglican Care has not consented to the release of Page 22 and has made it clear that it regards the email as a confidential internal communication which would not normally be released to an employee. 4. I am satisfied on the basis of the evidence provided by SafeWork that Page 22 was given and received in confidence. I am also satisfied that SafeWork's legislative obligation in dealing with information produced in cooperating with an investigation under the WHS Act requires it to treat such information as confidential. I am therefore satisfied that the information in issue is confidential information for the purposes of clause 1(d). Prejudice the future supply of information 1. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52]. 2. A similar issue to that which arises in the present case was addressed in Fraser v SafeWork NSW (No 2) [2021] NSWCATAD 79 where information had been provided to SafeWork by Blacktown City Council in response to a Notice issued under s 155 of the WHS Act. In that case the Tribunal found that it was likely that, if the information provided by Blacktown City Council was disclosed, the ability of SafeWork to obtain similar information in the future could be impaired (at [29]). 3. As was noted in that decision, the Tribunal has, in a number of cases, accepted that disclosure of material arising from an agency's investigative processes could prejudice the supply of future information essential for those processes to function. 4. As the Tribunal said in Walker v SafeWork NSW [2022] NSWCATAD 94 (Walker) at [38] in similar proceedings involving SafeWork: In its investigation of possible contraventions of the WHS Act, SafeWork relies upon companies and others to provide full disclosure of information sought by it. It is likely that the recipient of a Notice issued under the WHS Act would be less frank and less comprehensive in its response if it were aware that the information it provided was likely to be disclosed to the public. The fact that the information is provided under compulsion and the recipient of a Notice is therefore obliged to provide information, does not detract from the fact that the recipient may be more guarded in its response if it was aware that the information was likely to be disclosed. 1. Although in this case Page 22 was provided voluntarily rather than in response to a notice issued under the WHS Act, the same considerations apply. 2. Page 22 was provided to SafeWork by Anglican Care in the course of SafeWork investigating Ms Charles' allegations of unsafe work practices. It contains information of a kind which facilitates the exercise of SafeWork's investigative functions. 3. In her evidence Ms Williams expressed the view that if the redacted information is not protected from disclosure, it could prejudice the future supply of information to SafeWork in the course of discharging its investigative functions under the WHS Act. She says that the scope for this prejudice is especially apparent where, as is the case here, the unredacted version of the subject document was provided voluntarily to SafeWork NSW in circumstances where the supplier of the information is likely to have been aware of the capacity for its protection from disclosure afforded by s 271 of the WHS Act. 4. This evidence is supported by the letter from Anglican Care confirming that Page 22 was only provided to SafeWork to cooperate with its investigative processes, and that Anglican Care objects to the disclosure of Page 22 to Ms Charles. 5. I am satisfied that Page 22 was provided in circumstances where it was expected, taking into account the legislative prohibition against disclosure and SafeWork's practices, that it would not be further disclosed. 6. For all of these reasons I am satisfied that Page 22 contains information of the kind which facilitates the exercise of the respondent's functions, and that disclosure of information of this kind could reasonably be expected to prejudice the supply of such confidential information to SafeWork. Effective exercise of an agency's function 1. As noted above, there is no dispute that Page 22 was provided to SafeWork in the course of that agency exercising its functions under the WHS Act. SafeWork submits that its ongoing need for unfettered supply of information sought by its inspectors acting in the course of their investigative functions under the WHS Act is fundamental to its core operations in administering the WHS Act. It says that if the general confidence of organisations and individuals who are approached by SafeWork for information, that the confidentiality of the information they provide is in any way compromised, there is considerable scope for prejudice to future supply by the same or other organisations. 2. It is clear that in fulfilling its functions under the WHS Act SafeWork must be able to rely upon information that is provided to it by others. 3. I am satisfied that the provision of confidential information to SafeWork, particularly where it is investigating alleged contraventions of the work safety legislation, allows SafeWork to effectively exercise its functions. 4. As a result, I am satisfied that the disclosure of the redacted information could reasonably be expected to prejudice the supply to SafeWork of confidential information that facilitates the effective exercise of that SafeWork's functions. Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions 1. It is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)). 2. Unlike clause 1(d), clause 1(f) of the Table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency's functions. 3. Largely for the reasons set out above, I am satisfied that release of the redacted information could reasonably be expected to prejudice the exercise of WorkSafe's functions in investigating possible contraventions of the WHS Act. Clause 3(a) reveal an individual's personal information 1. SafeWork submitted that disclosure of the redacted information could reasonably be expected to reveal an individual's personal information. 2. Personal information is defined in cl 4 of Sch 4 to the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following— (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 1. 'Reveal' is defined in cl of Sch 4 to mean: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 1. The redacted lines of Page 22 contain personal information about Ms Charles (i.e. information or an opinion about Ms Charles whose identity is apparent or can reasonably be ascertained from the information or opinion). 2. The first word of line five of Page 22 is personal information of another individual as it is information about an individual whose identity is apparent or can reasonably be ascertained from the information. 3. The information in line six is also covered by cl 3(a) as it can reasonably be expected that the identity of the individual or individuals involved can be ascertained from that information. 4. The redacted lines do not otherwise reveal personal information. They contain the author's opinion about several matters. The identity of the author has previously been disclosed to Ms Charles. However, the author's opinions set out in the redacted lines are not personal information of the author as they do not involve information or an opinion about the author: see discussion in Veall v Department of Planning and Environment [2018] NSWCATAD 47 at [35] - [36]. 5. For these reasons I am satisfied that a disclosure of the redacted information could reasonably be expected to reveal the personal information of Ms Charles and of other individuals referenced in lines five and six of Page 22. Clause 3(b) contravene an information protection principle under the Privacy Act 1. Section 20 of the Privacy Act provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle. 2. The information protection principles in ss 8 to 19 of the Privacy Act make provision for how a public sector agency is to collect, store, use and disclose personal information. Personal information is defined in s 4 of the Privacy Act and is in similar terms to that contained cl 4 of Sch 4 of the GIPA Act. 3. Section 18 of the Privacy Act sets out the circumstances in which there can be a disclosure of personal information. In summary the circumstances are: 1. where the disclosure is directly related to the purpose for which the information was collected; 2. the individual is reasonably likely to have been aware, or is made aware in accordance with s 10 of the Privacy Act, that information of this kind is usually disclosed; or 3. the agency believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health. 1. None of the abovementioned circumstances apply in this case. Hence, I am satisfied that the respondent has established this ground of public interest consideration against disclosure. Clause 6 - secrecy provisions 1. Clause 6(1) of the Table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act. 2. Section 271 of the WHS Act is set out above. It prohibits disclosure of information or the giving of access to a document obtained in exercising any power or function under that Act. 3. I am satisfied that s 271 is a secrecy provision within the meaning of clause 6 of the GIPA Act and that Page 22 is therefore included within the prohibitions as set out in s 271. I am also satisfied that disclosure of the redacted information could reasonably be expected to constitute a contravention of s 271 of the WHS Act which prohibits the disclosure of information, whether or not the prohibition is subject to specific qualifications or exceptions. 4. However, as was noted by the Appeal Panel in Fraser v SafeWork NSW [2020] NSWCATAP 92 (Fraser) at [34]: Section 11 of the GIPA Act provides that that Act overrides a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified exceptions, other than a provision of a law listed in Sch 1 as an overriding secrecy law. Clause 1 of Sch 1 to the GIPA Act identifies the relevant overriding secrecy laws, and s 271 of the WHS is not included in that list. 1. As information caught by the s 271 prohibition is not subject to a conclusive presumption in Schedule 1 of the GIPA Act, it may therefore be disclosed unless there is an overriding public interest against disclosure. In addition, there are a number of exceptions to the prohibition on disclosure contained within s 271(3) and (3A). Of relevance to this matter is s 271(3)(e) which provides that the prohibition against disclosure of information or the giving of access to a document does not apply if the disclosure or access is required or authorised under a law. As was stated by the Appeal Panel in Fraser at [32], this would include a determination to provide access under the GIPA Act. None of the other exceptions listed in s 271(3) (such as where consent has been given to the release of information) are applicable in this instance. Where does the balance lie? 1. For the reasons that follow I find that, on balance, the public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure. 2. I have taken as a starting point the general presumption in favour of disclosure of government information (GIPA Act, s 5). I note the principles that apply to my determination (GIPA Act, s 15) and that conditions cannot be placed on Ms Charles in regard to the further disclosure of any information to which I decide she be granted access (GIPA Act, s 73). 3. I have given significant weight to the public interest in providing Ms Charles with her personal information. A large portion of the redacted lines contains information or an opinion about Ms Charles whose identity is apparent or can reasonably be ascertained from the information or opinion. 4. I have given minimal weight to the public interest that a disclosure may reasonably be expected to enhance SafeWork's accountability and to inform the public about SafeWork's operations. I am not satisfied that disclosure of the redacted information would significantly enhance what has already been disclosed to Ms Charles about SafeWork's handling of her case. 5. I have given minimal weight to the public interest considerations against disclosure in cl 1(d) and cl 1(f) of the Table. Page 22 was previously provided by SafeWork to Ms Charles in a largely unredacted form in 2014 and 2021. Although the document had been provided to SafeWork by Anglican Care voluntarily and in confidence, and the document was protected by s 271 of the WHS Act, Safework nonetheless disclosed the email to Ms Charles in 2014 and 2021 without redacting all personal or business information. Thus, it is likely that any prejudice to the supply of confidential information to SafeWork, or to the effective exercise by SafeWork of its functions, would have been activated by the earlier disclosure of confidential information in Page 22, and there is unlikely to be any significant further prejudice caused by the release of the remaining six and a half lines of text, particularly if the personal information of other individuals contained in those lines is withheld. 6. For the same reasons I have given little weight to the public interest considerations against disclosure in cl 6 of the Table, noting that information which comes within cl 6 (and is not covered by cl 1 of Sch 1 to the GIPA Act) can be disclosed under the GIPA Act unless there is an overriding public interest against disclosure. Although Anglican Care has not consented to the release of information in Page 22, much of that information has already been released to Ms Charles. 7. I have given some weight to the public interest considerations against disclosure in cl 3(a) and 3(b). A significant portion of the information in the redacted lines is personal to Ms Charles and, as noted above, there is a strong public interest consideration in favour of making her personal information available to her. The redacted lines also could reasonably be expected to reveal personal information about other individuals. There is nothing before me to suggest that those individuals have been consulted about the potential disclosure of their personal information to Ms Charles. However, as it is possible to separate that information from the personal information about Ms Charles, this issue can be overcome by redacting the information which could reasonably be expected to reveal personal information about other individuals. What is the correct and preferred decision? 1. Having weighed up the various public interest considerations, I find that the decision of the respondent to refuse the applicant access to part of line four, and to all of lines five to ten of Page 22 is not the correct and preferable decision. The correct and preferable decision is that Ms Charles be granted access to all of lines four to ten, with the exception of certain words in lines five and six which could reasonably be expected to reveal personal information of third parties. 2. Accordingly, I make the following order: 1. The decision of the respondent to withhold part of line four and all of lines five to ten of the email dated 14 August 2013 is set aside, and in substitution thereof a decision is made that the applicant be granted access to all of that information with the exception of: 1. The first word of line five; and 2. The words in line six after the words "Lee was" and before the words "I asked". I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2023