Director General, Department of Community Services -v- Latham (GD) [2000] NSWADTAP 21

Appeal Panel

CITATION: Director General, Department of Community Services -v- Latham (GD) [2000] NSWADTAP 21 APPELLANT Director General, Department of Community Services PARTIES: RESPONDENT Paul Latham FILE NUMBER: 009018 HEARING DATES: 18/08/2000 SUBMISSIONS CLOSED: 08/18/2000 DATE OF DECISION: 12/01/2000

Principal matter DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Smith MB - Judicial Member; Antonios Z - Member CATCHWORDS: relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993212 DATE OF DECISION UNDER APPEAL: 05/12/2000 LEGISLATION CITED : Freedom of Information Act 1989 Latham v Director General, Department of Community Services [2000] NSWADT 58. CASES CITED: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272) JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 APPELLANT REPRESENTATION: R Henderson, barrister RESPONDENT R Sproule ORDERS: Decision under appeal affirmed.

1 The respondent to this appeal, Paul Latham (Mr Latham), is an applicant under the Freedom of Information Act 1989 (the FOI Act) for access to documents held about him by the appellant (the agency). 2 Mr Latham applied for review by the Tribunal of decisions made by the agency to refuse him access to a number of documents. He was substantially successful in those proceedings: see Latham v Director General, Department of Community Services [2000] NSWADT 58. 3 In reply to Mr Latham's application, the agency located 130 folios (or 'pages' as they were termed in the Tribunal's decision) as being affected by the request. It released 61 pages fully and two others with exempt matter deleted. It refused to release 67 pages. 4 The Tribunal set aside the agency's decision to refuse access to 64 of those pages, and affirmed its decision in respect of 3 pages. The agency challenges the Tribunal's decision in respect of 3 documents amounting to 29 pages. The Tribunal's decision in respect of the other 35 pages that it considered should be released has not been challenged by the agency, and Mr Latham has not challenged the decision in relation to the 3 pages where the agency's decision was affirmed. 5 Mr Latham made his FOI application after a disciplinary inquiry into an incident at a group home where he had been employed. As the Tribunal decision notes at [1], Mr Latham's request was expressed as being for 'all correspondence internally and between the Department and Workcover re claim by Paul Latham for workers compensation'. Mr Latham attached a list to this application which set out several specific documents including 'Fact Finding Interviews re alleged incident' and 'Senior Officers report re Fact Finding interview.'. 6 At para [5] of its decision the Tribunal gave further background as follows. 'The background to this case is that Mr Latham was working as a casual employee with the agency at a group home for people with an intellectual disability. As a result of some information being given to the agency alleging that an employee at the group home had been verbally and physically abusing clients, the agency undertook some investigations to determine whether any disciplinary or other action should be taken against Mr Latham.' 7 The exemptions relied upon by the agency to refuse disclosure were the internal working documents exemption (cl 9 of Schedule 1), the law enforcement exemption relating to confidential sources of information (cl 4 of Schedule 1, in particular para (b)). In relation to the three documents where the agency decision was affirmed, the internal working documents exemption was considered to have been properly applied. 8 In relation to the 64 pages of material refused by the agency but considered appropriate to release by the Tribunal, the agency relied on the internal working documents exemption. In respect of 18 of the 64 pages it had also relied on the law enforcement exemption. The agency did not challenge the Tribunal's reasons in respect of the application of the law enforcement exemption. The agency's appeal related only to the Tribunal's reasoning in respect of the internal working documents exemption. 9 The scheme of the FOI Act will not be outlined in detail here. Essentially an agency is obliged to give access to a document in its possession unless it chooses or is bound to withhold the document because it falls into a category of exemption. It has a discretion whether to withhold a document on the ground that it falls within the exemption related to internal working documents. 10 That exemption, cl 9 of Schedule 1, is as follows: ' 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 agency's policy document, or (b) factual or statistical material.' 11 The investigation affecting Mr Latham involved a series of steps. The documentation generated at each of the key stages is in issue in this appeal. These steps were: a report from the management of the group home where Mr Latham worked, taking the form of a briefing note; then a report in relation to the internal investigation which followed, taking the form of a fact-finding investigation report prepared by the assistant manager of the group home; and finally, a report prepared by the Professional Conduct Unit in the agency assessing the investigation report and recommending that no action be taken. The Tribunal received oral evidence from the manager of the Professional Conduct Unit. 12 In this decision only the Tribunal's reasoning in respect of those parts of the decision that remain in issue will be canvassed. (1) Briefing Note - 29 March 1999 13 Pages 44-46, 109-111 and 10-12 of the material comprised 3 copies of a 3-page briefing note. 14 The briefing note was prepared by the ACM of the Ryde Community Services Centre (J Pitchford) and endorsed by the District Manager for that Centre. The briefing note had two basic elements, first, material in the nature of factual material intended to be taken into account by the recipient and secondly, recommendations to the recipient. Who the recipient was intended to be was not clear from the briefing note but the agency said at the hearing it was for the use of the Director General, the Minister or some other senior person in the Department. 15 The Tribunal noted that cl 9(2) excluded a document from exemption under cl 9(1) 'if it merely consists of … factual … material', and considered that some parts of the briefing note had this character. However, it concluded that material under the heading 'Recommendations' was not factual material and that it met the description of an internal working document in cl 9(1)(a). 16 For the exemption to be established a further criterion must be satisfied under cl 9(1)(b), namely that disclosure 'would, on balance, be contrary to the public interest.' The Tribunal concluded that that criterion was not met in the circumstances, for these reasons: '64. … These recommendations were endorsed by a senior officer and represent a final or operative decision of the agency. Disclosure would not reveal the agency's "thought processes" as the recommendations were apparently carried out. The document provides the basis for the decision to make those recommendations and it is in the public interest that those reasons are disclosed.' (2) Fact Finding Investigation Report - 15 June 1999