AFW v WorkCover Authority of New South Wales [2013] NSWADT 51

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AFW v WorkCover Authority of New South Wales [2013] NSWADT 51 Hearing dates: On the papers Decision date: 05 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The information withheld from the Key Personnel Register is to be released. 2. The decision under review is otherwise affirmed Catchwords: Disclosure of information provided to an agency in confidence - could reasonably be expected - personal information Legislation Cited: Government information (Public Access) Act 2009 Cases Cited: Commissioner of Police v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 Category: Principal judgment Parties: AFW (Applicant) WorkCover Authority of New South Wales (Respondent) Representation: AFW - Applicant in person S Kelly, Solicitor WorkCover Legal Group J McAteer, Office of the Privacy Commissioner File Number(s): 113332

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): AFW has applied for a review of the determination made by the WorkCover Authority of New South Wales ("WorkCover") on behalf of the Nominal Insurer to refuse a request for access to documents under the Government Information (Public Access) Act 2000 ("the GIPA Act"). 2In the access application dated 19 October 2011 AFW noted: WorkCover, acting for the Workers Compensation Nominal Insurer ("Nominal Insurer") has issued contracts to various private organisations who act as agents for the Nominal Insurer. These contracts are known as the 2010 Scheme Agent Deed ("2010 Deed"). Preceding the 2010 Deed was the 2005 Deed. WorkCover had previously made available via its website a list of all parts of the 2005 Deed and for each of those parts information as to whether each it was released to the public or whether it was deemed to be confidential and unavailable for download. 3AFW requested: 1. Information (a schedule) of all parts of the 2010 Deed and their status: that is, whether they are released on the WorkCover website, considered to be confidential and thus unavailable, or other. 2. All parts of the 2010 Deed which are currently unavailable from the WorkCover website; including ones considered to be confidential and those which relate to specific scheme agents, or other. All information should be provided in electronic form (native format) wherever possible. ... 4In response to AFW's request WorkCover advised that all confidential parts of the 2010 Deed were defined in the Glossary to the Deed which was published on WorkCover's website and that all non-confidential sections of the 2010 Deed are available on the WorkCover Website. 5The WorkCover decision maker also advised: In making my decision, I applied the public interest test under section 13 and determined that there is an overriding public interest against disclosure of some of the information sought. I note your request seeks scheme agent specific / confidential information as set out in Schedule 2 (2) of your application. This information is not publicly available as it pertains to the commercial in-confidence sections of the Deed which contain commercially sensitive information specific to each agent's operations, processes and intellectual property and is withheld pursuant to sub-clause 4 (b) of the Table to Section 14, which states: 4 Business interests of agencies and other persons 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) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, (b) reveal commercial-in-confidence provisions of a government contract, (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests. (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). WorkCover has not been required to consult with any third persons in relation to the information sought. 6AFW has applied to the Tribunal for external review of WorkCover's determination. He has not filed any material in support of his application but noted that he does not accept that the WorkCover decision maker has correctly applied the public interest test. WorkCover relies on the statement, dated 13 March 2012, of Ms Geniere Aplin, WorkCover's Operational General Manager. Ms Aplin identified the documents that were said to fall within the scope of AFW's request and provided an overview of the scheme to which those documents relate. 7She stated that the Nominal Insurer has entered into contracts ("the Scheme Agent Contract") with seven scheme agents. 8The contracts were entered following the completion of a tender process coordinated by the Department of Commerce. The Scheme Agent Contract 2010 is essentially the same for all scheme agents. The only differences were in agent specific content in the Schedules to the Deeds. 9Under the Scheme Agent Contract, the scheme agents are engaged to perform the Scheme Services on behalf of the Nominal Insurer. The Scheme Agent Contract is the means by which the scheme agents are engaged to provide comprehensive workers compensation policy and claim services for the Nominal Insurer. 10Ms Aplin stated that a high degree of confidentiality has always been given to the Scheme Agent Contracts and to the negotiation of these contracts. The Nominal Insurer recognises the commercial in confidence nature of the relationship with each individual Scheme Agent, although the Contract itself is essentially the same for all Scheme Agents. The confidential sections of the Scheme Agent Contract are generally unique to each scheme agent and are not available to other scheme agents or to any third party. 11AFW was subsequently given a copy of Attachment E to Schedule 4 to the Scheme Agent Contract - Key Personnel ("the Key Personnel Register") with the names of Agent Key Personnel omitted. 12In Ms Aplin's opinion the disclosure of Key Personnel information could potentially make those individuals vulnerable to contact from members of the public, including disgruntled claimants. This in turn could negatively impact on the performance of the important roles these personnel play in a scheme agent's workers compensation business. She stated that it is of serious concern that employees may be exposed to harassment or intimidation. Further, disclosure increases the potential for poaching of key staff contrary to the commercial interests of a scheme agent. 13Subsequent to AFW making this application, WorkCover consulted with the Scheme Agents regarding their attitude to AFW's request. Ms Aplin provided a schedule containing details of the general and particular concerns of the scheme agents in releasing the confidential sections of the Scheme Agent Contract. 14She stated that advice received from scheme agents was that in entering into the Scheme Agent Contract, they provided commercially sensitive information in good faith and were relying on the provisions of the Contract in the belief that this information would not be disclosed to the public. Some scheme agents have noted that to release the information covered by the confidentiality provisions of the Contract would make the disclosing party liable to an action to restrain the breach or to claim damages. She stated that some scheme agents expressly identified possible release of information as giving rise to an action for breach of confidence or for the disclosure of information provided in confidence. 15In response to consultation, some scheme agents have expressed their views as to the applicability of the public interest consideration against revealing commercial-in-confidence provisions of a government contract and the applicability of the public interest tests against disclosure permitted under clauses 4(d) and 3(a) and (f) to Table 14 of the GIPA Act. 16Ms Aplin noted that while the essential elements of the Scheme Agent Contract are the same for each scheme agent, there are individual variations in the confidential material that has not been publicly released. The scheme agents are business competitors, and in negotiating the Scheme Agent Contract 2010 have identified those parts that should remain confidential in order to protect their commercial interests. 17In her opinion, it is important for New South Wales government agencies to be able to contract with the private sector, and for the private sector to rely on the integrity of those contractual arrangements. She considers that this contractual certainty should extend to protecting the confidentiality of information that affects the contractor's legitimate business, or commercial interests. 18She stated that the integrity and operation of the workers compensation scheme depends on the performance of the Scheme Services by scheme agents under the Scheme Agent Contract. In her opinion, there are considerable risks to the scheme should information be released contrary to the contractual obligations contained in the Contract in terms of relationships with the scheme agents and the risk of legal action arising from disclosure. Should a release of the confidential information take place, there is a strong likelihood that this would cause considerable disruption among Scheme Agents, and distract them from the main task of managing claims and policies on behalf of the Nominal Insurer. It would also prejudice the negotiation and performance of any future contracts of this nature. 19She considers that there is an overriding public interest against disclosure of the information sought by AFW, with the exception of that material that has been released.