Appeal Panel - Internal CITATION: P v Greater Western Area Health Service (GD) [2007] NSWADTAP 57 APPELLANT PARTIES: P RESPONDENT Greater Western Area Health Service FILE NUMBER: 079037 HEARING DATES: 17 September 2007 SUBMISSIONS CLOSED: 17 September 2007 DATE OF DECISION: 5 October 2007 BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Freedom of Information - Appeal- Personal Affairs Exemption - Scope - Statements in relation to Conduct in Workplace - Residual Discretion - Freedom of Information Act 1989, Schedule 1, cl 6 MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 073069 DATE OF DECISION UNDER APPEAL: 04/13/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 P v Greater Western Area Health Service [2007] NSWADT 87 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 Hinton & Ors v Commissioner for Fair Trading, Office of Fair Trading (GD) [2007] NSWADTAP 17 Sunol v Collier [2006] NSWADTAP 51 CDJ v VAJ (1998) 197 CLR 172 CASES CITED: Chief Executive Officer, State Rail Authority v Woods (No. 1) [2003] NSWADTAP 25 Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Commissioner of Police v District Court of New South Wales (Perrin's case) (1993) 31 NSWLR 606 University of NSW v McGuirk [2006] NSWSC 1362 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 APPELLANT In person REPRESENTATION: RESPONDENT G Blackwell, solicitor, Blackwell Short Lawyers ORDERS: 1. Appeal dismissed; 2. Decision under appeal affirmed REASONS FOR DECISION 1 The underlying circumstances of this appeal are set out in sufficient detail in the decision under appeal: see P v Greater Western Area Health Service [2007] NSWADT 87. 2 The Tribunal there dealt with three applications for documents made by the appellant to the respondent agency (the agency) under the Freedom of Information Act 1989. 3 The Tribunal made orders in respect of the three applications which led to the release of several documents or parts of documents previously withheld. The appeal relates only to the Tribunal's decision in respect of the third of the three applications for review (Tribunal File No. 073069). 4 The appellant challenges the Tribunal's decision refusing her access to certain documents that formed appendices to a report into a claim made by her. The report dealt with matters relating to workplace conduct of various staff members of the agency including her. The appendices that the Tribunal refused to release, and to an extent upheld the agency's determination, were described as Appendices A, B, C, D, J, K, L, N, Q, R, S, T and U. At hearing the agency advised that, in light of the reasons of the Tribunal, it had decided that it should release from this group Appendices Q, S and T. An order by consent was made by the Appeal Panel to that effect. 5 Accordingly the appeal proceeded on the basis that the decision of the Tribunal as to documents A, B, C, D, J, K, L, N, R and U remained in issue. 6 These documents consist of statements which can be divided into two classes. The first class are officially prepared documents. They include records of interview conducted by Ms Mills of Protocol Investigations, and formally prepared signed statements. In each there are formal parts which contain standard paragraphs (for example, a statement that what follows is true and correct to the best of the maker's recollection, or references to the present occupation of the maker of the statement). The second class are letters or statements authored by their maker, often expressed in a relatively informal way, sometimes hand written, sometimes typed. 7 The formal recitals in the first class of documents could be released. They are not what the appellant is seeking. She wants to see the precise allegations made about her conduct or behaviour. In the second class of documents, there is no neat division into unproblematic formal parts and content of a more sensitive nature. 8 The makers of the statements were all persons consulted in connection with the investigation. 9 The agency has refused to release the statements on the basis that to do so would involve 'an unreasonable disclosure of information concerning the personal affairs' of the provider of the statements, relying on the exemption given by cl 6 of Schedule 1 to the FOI Act (the personal affairs exemption) which is in these terms: ' 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.' 10 Under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) an appeal in respect of the review of a reviewable decision (as here) may be made in relation to a 'question of law', and, with the leave of the Appeal Panel, may extend to the merits: ADT Act, ss 112, 113. It is not necessary that an error of law be demonstrated before consideration can be given to extending the appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245. The appellant's notice of appeal did not specifically identify any questions of law. She only applied for leave to extend to the merits. 11 Where leave is granted, s 115 of the ADT Act applies: ' 115 Appeals on the merits (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside.' 12 The Appeal Panel noted in Hinton & Ors v Commissioner for Fair Trading, Office of Fair Trading (GD) [2007] NSWADTAP 17 at [85]: '85. While the Appeal Panel's discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is 'not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction'. Appeal Panels must recognise the importance of not interfering with soundly made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand.' 13 In support of the application to extend to the merits, the appellant submitted that the statements contained in the appendices bore upon her application for workers compensation. She said that they 'must contain either or both personal or professional' information about her. She said that the assessing psychiatrist had initially supported her claim but would appear to have changed his mind in light of the material contained in the suppressed statements. She has had released to her his report following her attendance for assessment. Based on its contents she believes that the suppressed statements contain untrue and malicious material about her. She also submitted that this information was her 'personal information' and should be released to her. A similar principle is found in cl 6(2) which qualifies cl 6(1) (quoted above). 14 While the applicant did not identify expressly a question of law in her notice of appeal, two of the issues that she raised at hearing, and in brief in her application to extend to the merits, are in the nature of questions of law. They are, one, whether information given by others about her conduct in the workplace would, if disclosed, involve an unreasonable disclosure of personal affairs; and two, whether information communicated to an investigator about her is her personal information, and therefore accessible. We will deal first with those questions. Reliance on cl 6(1) 15 The appellant accepts that the information contained in the documents may involve a disclosure of information concerning the personal affairs of the providers of the information (their identities have been revealed to her). 16 The evidence is that all the makers of the statements wish to have them protected. They regard their disclosure as an unreasonable intrusion on their personal affairs. 17 Relevant to the issues raised by the appellant is Chief Executive Officer, State Rail Authority v Woods (No. 1) [2003] NSWADTAP 25 and Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39. In that case the SRA had withheld a long document of several pages containing a statement of grievances of co-workers over the workplace conduct of Mr Woods. Mr Woods contested the agency's reliance on a number of exemptions including the 'personal affairs' exemption. 18 The agency had submitted that the expressions of concern and the statements they made about Mr Woods' conduct would, if disclosed, unreasonably disclose the complainant co-workers' 'personal affairs'. The Tribunal at first instance did not accept this submission: Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. The Tribunal held that the relevant case-law did not confer protection where the personal opinions in a document refer to activity of an official kind in the workplace. Further, the Tribunal held that where the information or opinion arises from incidents a work colleague has witnessed at work, that information does not concern the personal affairs of the witness. See generally reasons, [47]. 19 In Woods (No. 1) the Appeal Panel disagreed with the primary Tribunal in particular in respect of its ruling that information that 'personal affairs' does not embrace opinion or information referring to incidents an informant has witnessed at work. The Appeal Panel disagreed with this proposition, at least as it was applied in this case. The Appeal Panel ruled that: '31 While we accept that ultimately the question of whether the contents of a document involve a matter of 'personal affairs' is one of fact (see the Tribunal's reasons at [37]), in this instance we are satisfied that the Tribunal erred in the approach that it took the question of the construction of what type of information could possibly fall within the scope of those words. It did not, we consider, adequately differentiate between reports that are in the nature of the expression of privately-held concerns about workplace performance; and those that are made in the course of the exercise of official responsibilities. 32 As noted earlier, the Tribunal did not go on to consider the question of whether the disclosure of such information would be unreasonable. That is an issue going to the merits. We indicated to the parties at hearing that we would first form a view as to the legal issues, before giving any consideration of extension of the appeal to the merits. This matter is returned to later in the reasons.' 20 In Woods (No. 2), the Appeal Panel said: '14 The Appeal Panel is satisfied that the documents in issue in this case are ones of a kind to which the above exemption can be applied. They are expressions by co-workers of privately held concerns about workplace performance of two colleagues who are at the same level as them (with one exception). They are not expressions of concern communicated by a manager. It will be seen therefore that the Appeal Panel now must assess whether it would be 'unreasonable' to disclose the contents of the petition. Any document that involves a bilateral statement along the lines of 'I saw A do X' or 'A said X and I said Y in reply' involves personal information about both parties. The personal information may go to matters properly characterised as 'personal affairs' and so bring into play cl 6. It may well be impossible so to deal with the 'mixed' information that the access applicant is given the information affecting him or her and the claim to privacy of the other party remains protected. In these circumstances the claim to privacy of the other party would prevail. At the least it would be necessary to hear from the other party if their wishes in the matter were to be overridden.' 21 On the other hand, and following on from the point made by the Appeal Panel in the Woods litigation, if one party is an official exercising official responsibility then that party can not claim that their side of the communication is material relating to their personal affairs. This is an important point established by Commissioner of Police v District Court of New South Wales (Perrin's case) (1993) 31 NSWLR 606 (NSWCA). It was held that it could not properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports on private persons can be classified as disclosing information concerning the personal affairs of the public servants. Clause 6 did not provide a vehicle for providing anonymity to public servants. 22 In deference to the submissions of the appellant, we have examined the appendices. In our view, the distinction drawn in Woods is applicable. Some of the statements are from work colleagues who were not in a supervisory relationship to the appellant. They were expressing concern over aspects of her behaviour in the workplace and in relation to behaviour outside of the workplace that bore on her behaviour in the workplace. Understandably, the appellant would like to see, and contest, these statements. If she can get the statements she might be able to exercise the right of amendment given by s 39 of the Act. In our view the statements constitute an aspect of the 'personal affairs' of the makers of the statements, even though, in the instance of some of them, the events occurred at work. In our view, it would be an 'unreasonable' disclosure of their personal affairs for their statements to be released. 23 In our view, the findings of the Tribunal that the statements can properly be exempted from release on the basis of cl 6(1) should not be disturbed. Residual Discretion 24 Exempt documents may now be released in the exercise of the residual discretion given by s 25(1)(a). In dealing with the discretionary release issue, the Tribunal first gave a brief account of the way the Tribunal has approached the exercise of the discretion since the ruling in University of NSW v McGuirk [2006] NSWSC 1362, at [102] per Nicholas J. The Tribunal said: '39 … First, in cases where exercise of the residual discretion is in issue, the Tribunal must first consider whether particular documents are exempt under the Act, and only if it finds documents to be exempt should it then consider whether to exercise the residual discretion. Second, the discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. The approach to be taken is one of balancing the competing interests involved according to the words of the Act, bearing in mind the stated objects of the Act: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at par 151. In NSW, the public interest is a relevant matter in determining whether there are strong grounds justifying exercise of the discretion, and this should be considered in the light of the objects of the FOI Act, set out in s 5.' 25 The Tribunal concluded: '40 I have reviewed the documents or parts of documents that I am satisfied are exempt pursuant to the personal affairs exemption. In terms of the objects of the FOI Act, as a consequence of this decision, the Applicant will gain access to further relevant documents concerning her personal affairs. In my view, should she wish to do so, this will enable her to apply for the amendment of records held by the Health Service concerning her personal affairs if she can establish that its records are incomplete, incorrect, out of date or misleading. In this instance, I am not satisfied that there are strong grounds in terms of public interest or other considerations justifying exercise of the residual discretion to override the personal affairs exemptions that are warranted in this case.' 26 In any proceedings concerning a determination made under the Act by an agency, the burden of establishing that the determination is justified lies on the agency: FOI Act s 61. In the present instance it was necessary for the agency to justify reliance on cl 6(1). There may be a question as to whether the onus now extends to justifying non-exercise of the residual discretion. The matter has not been argued. Our provisional view is that there is no onus on the agency at this point. . 27 The appellant contends, however, that the Tribunal should have given more weight to the factors she believes justify discretionary release in the circumstances. 28 She referred at hearing to the following points favouring release of the documents: (1) She was not treated fairly in having her letter of concern, seeking a transfer from one hospital to another within the agency's area of responsibility, made the subject of a grievance investigation. She had not, she said, asked for a grievance investigation, but wanted an intervention in the nature of mediation which might remove the factors in the behaviour of work colleagues that had led her to seek a transfer. (2) The people who had caused her to write the letter of concern were, she said, very friendly with the human services manager at the first hospital, and she felt disadvantaged by that. (3) She felt that she was not properly consulted in relation to the initiation of the investigation or during it. (4) She felt that the investigation was biased. She had been denied a copy of statements and of the investigation report. She had to use statutory procedures under the FOI Act, first by complaint to the Ombudsman then applications for review by the Tribunal to get any degree of redress. (5) She feels that the allegations made by her work colleagues and others about, insofar as they are known to her (she has three statements other than those now being sought) were unfair and defamatory. 29 We have reviewed the material before the Tribunal. We are satisfied that the kind of concerns raised by the appellant at the Appeal Panel hearing were in the mind of the Tribunal. Elsewhere in the Tribunal's decision, there is a close examination of the appellant's request to have the Tribunal formally report the senior officer responsible for handling her FOI application to the Minister pursuant to the power given by s 58 of the Act. The Tribunal accepted the substance of many of the criticisms made by the appellant as to the competence of the agency in handling her request. It did not enter the debate as to the competence of the agency in respect of the investigation itself. On the basis of the material we have seen, we would agree with the Tribunal that the agency manifested little basic understanding of key aspects of the FOI Act's approach to the operation of the personal affairs exemption. A primary rule is that the exemption is not to be used to deny the applicant access to material supplied by the applicant in relation to their personal affairs; yet that occurred in relation to numerous documents in this case. As the Tribunal noted, the appellant had an understandable sense of frustration. 30 In our view, the Tribunal was correct in its conclusion that it would not be an appropriate exercise of the discretion to release any of these statements, at least in respect of their substantive content. It is clearly in the public interest to protect the confidentiality of investigations into issues arising in the workplace. Here there appear to have been two issues: whether there was behaviour occurring at the appellant's original workplace among staff which might require some kind of management intervention to change; whether the matters raised by the appellant entitled her to compensation under the workers compensation insurance scheme. The investigation and report had to do with the second matter. The investigation was commissioned by the workers compensation insurer, GIO/Suncorp. The appellant advised at hearing that though the assessing psychiatrist felt she had a tenable claim, at one stage at least (as demonstrated by Document 41 which has been released to her), ultimately she had been denied workers compensation. She said she had not decided whether to pursue the matter any further. 31 It is important, we think, to uphold the confidentiality of workplace investigations of the present kind. In that regard we accept that were formal proceedings taken against the agency and its insurer in the relevant jurisdiction then it may, as a matter of procedural fairness, be necessary to release some or all of any statements relied upon to the person adversely affected. These are decisions to be taken at that stage of the process. At this point, where a contest of that kind has not arisen, and in the absence of any statutory or similar obligation on the agency or, more particularly, the agency's insurer, it would, we think, impair the effective conduct of investigations to allow this material to be released under FOI. We also note, as explained to the appellant at hearing, that balances can be struck in formal proceedings as to release of documents which are more subtle than those permitted by FOI. FOI release is seen as involving 'release to the world'. 32 Subject to the order by consent made in relation to Appendices Q, S and T, the appeal is dismissed; and the decision of the Tribunal affirmed. 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.