Pettit v Department of Education & Training [2004] NSWADT 86

CITATION: Pettit v Department of Education & Training [2004] NSWADT 86 DIVISION: General Division APPLICANT PARTIES: Kay Pettit RESPONDENT Department of Education & Training FILE NUMBER: 043039 HEARING DATES: 29/04/2004 SUBMISSIONS CLOSED: 04/29/2004 DATE OF DECISION: 05/04/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: access to documents - protected disclosures - Freedom of Information Act - access to documents - protected disclosures MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Protected Disclosures Act 1994 CASES CITED: Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Robinson -v- Director General, Department of Health [2002] NSWADT 222 APPLICANT REPRESENTATION: In person RESPONDENT P Cribb, solicitor ORDERS: The decision by the Department of Education & Training not to release the deleted sections of the Davidow Report is affirmed.

REASONS FOR DECISION 1 This decision deals with an application made by the applicant ("Ms Pettit") pursuant to the Freedom of Information Act 1989 ("the FOI Act") for review of a determination made by the NSW Department of Education and Training ("the Agency"). Background 2 Ms Pettit is employed by the Agency as the Head Teacher Languages at an Agency High School. In 2001 she was required to answer allegations of maladministration brought against her by a complainant who's identity has not been disclosed ("the Complainant"). The Complainant's allegations were protected disclosures as defined in the Protected Disclosures Act 1994 ("the PD Act"). The Agency carried out an investigation in relation to the Complainant's allegations and a report into those allegations was produced to the Agency's Granville District Superintendent ("the Davis/White report"). In May 2002, the Agency's Deputy Director of Audit Branch informed Ms Pettit that there was no evidence of any impropriety by her. 3 Ms Pettit subsequently submitted a complaint to the Ombudsman about the process and execution of the investigation. Ms Pettit's complaint was referred to the Agency and Mr Barry Davidow of the Agency's Fraud Protection Services carried out an investigation. This investigation was completed in 2003 and a report of the investigation was produced ("the Davidow Report"). Ms Pettit subsequently received a letter from the Deputy Director of the Audit Branch stating that there was no substance to her complaint. 4 By application dated 17 September 2003 Ms Pettit sought access to the Davis/White report and the Davidow Report. By a determination dated 3 October 2003 ("the original decision"), the Agency's Director of Audit denied access to each of those documents relying on Schedule One, Clause 20(1)(d) of the FOI Act. 5 Ms Pettit sought a review of the original decision to the extent that it denied her access to the Davidow Report. By a determination dated 13 January 2004 ("the internal review decision"), the Agency's Assistant Director-General (Schools) varied the original decision by granting Ms Pettit access to a version of the Davidow Report to which certain material ("the deleted sections") had been removed. The internal review decision stated: "... .The deleted sections, if released, would I consider involve disclosing matter relating to a protected disclosure. The deleted sections appear as blank sections in the document provided. ..." 6 By application dated 9 February 2004, Ms Pettit has sought a review of the internal review decision by the Tribunal. Statutory framework 7 Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. Section 25 of the FOI Act provides: "25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, … (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy." 8 As to the word "exempt", section 6 (1) of the FOI Act relevantly provides: "In this Act exempt document means a document referred to in anyone or more of the provisions of Schedule 1" "exempt matter means matter by virtue of which a document is an exempt document. ..." 9 The provision in Schedule 1 of the FOI Act on which the Agency relies in refusing to grant access to the deleted sections is Clause 20(d) (protected disclosures); Clause 20(d) provides: "A document is an exempt document if it contains matter the disclosure of which would disclose: (d) matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994." 10 There is no dispute that Ms Pettit is entitled to make the application to the Tribunal under section 53 of the FOI Act. The application to the Tribunal was made within the time period specified in section 54 of the FOI Act. 11 Under section 61 of the FOI Act, the burden of establishing that the determination is justified lies on the agency. 12 Section 4 of the PD Act provides various definitions for the purposes of that Act: investigating authority means: (a) the Auditor-General, or (b) the Commission, or (c) the Ombudsman, or (d) the PIC, or (e) the PIC Inspector, or (f) the Director-General of the Department of Local Government. protected disclosure means a disclosure satisfying the applicable requirements of Part 2. public authority means any public authority (including a local government authority) whose conduct or activities may be investigated by an investigating authority. public official means a person employed under the Public Sector Management Act 1988 , an employee of a State owned corporation, a subsidiary of a State owned corporation or a local government authority or any other individual having public official functions or acting in a public official capacity, whose conduct and activities may be investigated by an investigating authority, and (without limitation), includes a member of the Police Service, a PIC officer or a PICI officer. 13 Section 8 of the PD Act provides: "8 Disclosures must be made by public officials (1) To be protected by this Act, a disclosure must be made by a public official: (a) to an investigating authority, or (b) to the principal officer of a public authority or investigating authority or officer who constitutes a public authority, or (c) to: (i) another officer of the public authority or investigating authority to which the public official belongs, or (ii) an officer of the public authority or investigating authority to which the disclosure relates, in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration or serious and substantial waste of public money by that authority or any of its officers, or (d) to a member of Parliament or to a journalist. (2) A disclosure is protected by this Act even if it is made about conduct or activities engaged in, or about matters arising, before the commencement of this section. (3) A disclosure made while a person was a public official is protected by this Act even if the person who made it is no longer a public official. (4) A disclosure made about the conduct of a person while the person was a public official is protected by this Act even if the person is no longer a public official." 14 Section 9 of the PD Act provides: "9 Disclosures must be made voluntarily (1) To be protected by this Act, a disclosure must be made voluntarily. (2) A disclosure is not made voluntarily for the purposes of this section if it is made by a public official in the exercise of a duty imposed on the public official by or under an Act. (3) A disclosure is made voluntarily for the purposes of this section if it is made by a public official in accordance with a code of conduct (however described) adopted by an investigating authority or public authority and setting out rules or guidelines to be observed by public officials for reporting corrupt conduct, maladministration or serious and substantial waste of public money by investigating authorities, public authorities or public officials. …" 15 Section 14 of the PD Act provides: "14 Disclosures to public officials (1) To be protected by this Act, a disclosure by a public official to the principal officer of, or officer who constitutes, a public authority must be a disclosure of information that shows or tends to show corrupt conduct, maladministration or serious and substantial waste of public money by the authority or any of its officers or by another public authority or any of its officers. (2) To be protected by this Act, a disclosure by a public official to: (a) another officer of the public authority to which the public official belongs, or (b) an officer of the public authority to which the disclosure relates, in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration or serious and substantial waste of public money by that authority or any of its officers must be a disclosure of information that shows or tends to show such corrupt conduct, maladministration or serious and substantial waste (whether by that authority or any of its officers or by another public authority or any of its officers). (3) In this section: public authority includes an investigating authority." Overriding discretion 16 There is a line of authority beginning with Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93, suggesting that, even if the Tribunal finds that a document is an exempt document, the Tribunal may nevertheless exercise the discretion given to agencies by section 25 of the FOI Act to disclose that document. At [91] of Mangoplah, the Tribunal defined the Tribunal's overriding discretion in the following terms: "91 Framing the question in this way produces a need to locate special or overriding circumstances or interests before an exempt document is released, but only in the sense that some reason particular to the circumstances should be found for not claiming the exemption. I would not see the question as necessarily suggesting that such a release would be rare, unusual or exceptional. In some areas of government, there may be many documents which fall within an exemption but, for example, whose public interest in release is overwhelming, or whose potential for relevant damage is so obviously remote as to leave disclosure totally innocuous." The Agency's submission on the protected disclosures exemption 17 Under Clause 20(d) to Schedule 1 of the FOI Act a document is an exempt document if it contains matter the disclosure of which would disclose matter relating to a protected disclosure within the meaning of the PD Act. 18 A disclosure must meet certain requirements if it is to be regarded as a "protected disclosure" under the PD Act. It is not in dispute that the Complainant's complaint is protected by the PD Act. There is no suggestion that Ms Pettit's complaint, that was the subject of the Davidow report, is protected by the PD Act. However, the Agency submits that the deleted sections of the Davidow report are exempt matter within the meaning of that expression as defined in section 6(1) of the FOI Act. 19 The Agency submits that the deleted sections are exempt matter because they consist of matter relating to a protected disclosure within the meaning of the PD Act for the purposes of clause 20(1)(d) of Schedule 1 to the FOI Act. The relevant protected disclosure is the Complainant's complaint that was the subject of the Davis/White report. 20 Therefore, the Agency submits, the Davidow Report is an exempt document within the meaning of that expression as defined in section 6(1) of the FOI Act. A version of the Davidow Report (with the deleted sections removed) was released to Ms Pettit pursuant to section 25(4)(b) of the FOI Act. Ms Pettit's submission on the protected disclosures exemption 21 In essence, Ms Pettit's case is that her complaint to the Ombudsman about the process and execution of the investigation was not a protected disclosure. Accordingly the report produced following the investigation into that complaint, the Davidow Report, cannot be protected by the PD Act. 22 Ms Pettit argues that the Manager of the Languages Unit who assisted the Audit Branch with the investigation had prior involvement in the program that was the basis of the Complainant's complaint. She should therefore have had no involvement in that investigation. Ms Pettit's complaint to the Ombudsman was about how the investigation was carried out and in particular the choice of the Manager of the Languages Unit as an investigator. In her submission this was not a protected disclosure. 23 Ms Pettit's submission is that the deleted sections are responses given by the Manager of the Languages Unit in the investigation of her complaint and that the Manager of the Languages Unit is not protected by the PD Act. This is because the Manager of the Languages Unit does not fall within the provisions of section 14 of the PD Act. She was not the Complainant and therefore is not a public official who has made a disclosure. Further, Ms Pettit argues that responses provided by the Manager of the Languages Unit do not concern the protected disclosure because the complaint under investigation was not a protected disclosure. The complaint under review relates to conduct by the Manager of the Languages Unit and not that of the Complainant. Therefore, in Ms Pettit's submission, any responses that the Manager of the Languages Unit gave to Mr Davidow's questions by definition do not relate to the Complainant. Further, her replies do not relate to the subject matter of the protected disclosure as those involved in the program that was the subject of the Complainant's complaint are not covered by the PD Act; that program, funded by public money in a state school, is not protected by the PD Act; and the management of public funds by the Manager of the Languages Unit is not covered by the PD Act. 24 Ms Pettit asserted that all the issues that she raised are matters in the public domain. She also asserts that the name of the Complainant has been revealed and in making this known, the Manager of the Languages Unit failed in her duty under the Agency's Code of Conduct to respect the provisions of the PD Act. She is not protected by the PD Act, nor did she behave as required under the Agency's Code of Conduct. 25 Ms Pettit asserted that to deny her access to Mr Davidow's conclusions is contrary to his statement that the rationale for investigating the allegations gives confidence to those making allegations that the organisation is serious about enforcing a high ethical culture. It is also contrary to the statement in the introduction to the Agency's publication Responding to Suggestions, Complaints and Allegations which states: "A professional response to suggestions, complaints and allegations promotes fairness, leads to improvements and creates confidence in the outcome. It requires staff to use professional judgement and a balanced consideration of the rights and needs of the parties." 26 Ms Pettit asserted that this rationale applies to the whole structure of the organisation, including the Audit Branch itself and the Manager of the Languages Unit. The Audit Branch has the responsibility to ensure that the Agency has a professional response to complaints, which promotes fairness. The Agency also has a Code of Conduct to which all employees are to adhere. 27 Ms Pettit asserted that the Manager of the Languages Unit is not protected by the PD Act and to single out her answers for deletion attempts to conceal the failure of a senior officer to demonstrate any degree of professionalism, transparency or fairness in her role as an investigator. The object of the PD Act is to protect the person who makes a disclosure, not the investigating authority. Tribunal's findings on the protected disclosure exemption 28 I am satisfied, on the basis of the evidence and all the submissions, that the Complainant made a "protected disclosure" with respect to Ms Pettit. By virtue of Clause 20(d) of the FOI Act any documents, disclosure of which "would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994" are exempt. 29 It is not relevant that Ms Pettit knows or believes that she knows the identity of the Complainant. Release of documents identifying that Complainant's name or the protected disclosure is release to the whole world, not just to Ms Pettit. For completeness, I note that I agree with the Agency's submissions that it is not within the jurisdiction of the Tribunal to make any finding in relation to the investigation of Ms Pettit by the Agency and that the subject, adequacy, efficiency, propriety, conduct and findings of that investigation are irrelevant to this application. I also agree that any breach of the Agency's Code of Conduct or the PD Act by an officer of the Agency is irrelevant to this application. 30 The issue for consideration is which, if any, of the deleted sections discloses matters "relating to" a protected disclosure within the meaning of the PD Act? 31 Clause 20(d) of the FOI Act was the subject of discussion by the Deputy President of this Tribunal in Robinson -v- Director General, Department of Health [2002] NSWADT 222. In that matter, the Deputy President observed: "38 The words "relating to" are broad. At least any document which, either directly or indirectly, identifies a person as the person who has made a protected disclosure would come within the ambit of a document "relating to" a protected disclosure. The agency has relied on this exemption in relation to documents which identify the complainant/s." 32 While I agree with the views expressed by the Deputy President in Robinson, it is my view that the protected disclosures exemption may have a broader application than that which she considered. In my view, the exemption extends to any document that, either directly or indirectly, identifies the subject matter of the disclosure, not merely the public official who made the disclosure. 33 For the purposes of this matter it is therefore necessary to examine the deleted sections to assess whether or not they identify the subject matter of the Complainant's disclosure. I have undertaken that examination and I am in no doubt that the deleted sections do in fact make such a disclosure. The deleted sections are therefore relating to a protected disclosure. 34 It follows, in my view, that if Ms Pettit were given the deleted sections it "would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994. That being the case, the deleted sections are exempt under Clause 20(d) of the FOI Act. Overriding discretion in relation to the protected disclosures exemption 35 The Tribunal must consider whether, despite the fact that the exemption in Clause 20(d) of the FOI Act applies, it should nevertheless disclose all or some of those documents because there are special or overriding circumstances or interests relating to this case. 36 Section 22 of the PD Act provides an indication of the kinds of circumstances where it may be in the interests of a person concerned, or in the public interest, to disclose documents which would identify or tend to identify a person who has made the protected disclosure. In essence there are if the Complainant consents in writing to the disclosure of that information, or if it is essential having regard to the principles of natural justice that the identifying information be disclosed to a person whom the information provided by the disclosure may concern. 37 There was no evidence as to whether the Complainant has been consulted about whether they consent to the information being disclosed to Ms Pettit. It can be inferred from Ms Pettit's submissions that she believes that disclosure to her is essential, having regard to the principles of natural justice. She did not point to any other considerations favouring the disclosure of the material. 38 The objects of the PD Act are set out in section 3(1)(b) of that Act as follows: "(1) The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and serious and substantial waste in the public sector by: (a) enhancing and augmenting established procedures for making disclosures concerning such matters, and (b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and (c) providing for those disclosures to be properly investigated and dealt with." 39 The exemption provided in Clause 20(d) of the FOI Act reflects the same concern. In the circumstances, I am not persuaded by Ms Pettit's submission that it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to her. In the circumstances the failure to disclose the deleted sections does not constitute a breach of natural justice. Accordingly, the correct and preferable decision is that the Agency's decision not to release the deleted sections of the Davidow Report should be affirmed. Order 1. The decision by the Department of Education & Training not to release the deleted sections of the Davidow Report is affirmed.