Burke v Health Education and Training Institute [2016] NSWCATAD 194

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burke v Health Education and Training Institute [2016] NSWCATAD 194 Hearing dates: On the papers Date of orders: 25 August 2016 Decision date: 25 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) The respondent's decision to refuse access to information behind tabs 27, 41, 42, 43, 64, 91, 93, 107, 144, 152 and 153 of the 1 October 2015 decision is varied. The respondent is to provide the applicant with access to: (a) all of the information behind tabs 27, 41, 43, 64, 93, 107, 152 and 153; (b) the information in the 2 page email (but not the attachments) behind tab 42; (c) the information in the 2 page email (but not the attachments) behind tab 91; (d) the information in the document behind tab 144 with the exception of the first four paragraphs on the last page of the document; and access to the remainder of the information behind these tabs is refused. (2) The respondent's decision to refuse to provide access to information is otherwise affirmed. Catchwords: GOVERNMENT INFORMATION – Information concerning workplace investigation - Public interest considerations in favour of disclosure – Whether disclosure of the information could reasonably be expected to reveal or substantiate misconduct or negligent, improper or unlawful conduct – Whether alleged breaches of procedural fairness constitute public interest consideration in favour of disclosure - Tribunal not to undertake collateral review of merits or validity of official action GOVERNMENT INFORMATION – Public interest considerations against disclosure – Disclose information provided in confidence – Prejudice the effective exercise by an agency of its functions – Prejudice the conduct of an investigation – Meaning of "conduct" of an investigation – Reveal personal information and contravene privacy principle – To discharge burden, respondent must identify relevant privacy principle and explain why there would be reasonable expectation of contravention – Balancing of public interest considerations Legislation Cited: Health Services Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW) Evidence Act 1995 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Health Records and Information Privacy Act 2002 (NSW) Freedom of Information Act 1989 (NSW) (repealed) Cases Cited: Bourke v Roads and Maritime Services [2012] NSWADT 272 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Kioa v West (1985) 159 CLR 550 Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 Luxford v Department of Education and Communities [2016] NSWCATAD 118 P v Western NSW Local Health District [2016] NSWCATAD 109 Raven v The University of Sydney [2015] NSWCATAD 104 Smith v Pittwater Council [2016] NSWCATAD 67 Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 Williams v Department Industry and Investment [2012] NSWADT 192 Category: Principal judgment Parties: Murray Burke (Applicant) Health Education and Training Institute (Respondent) Representation: Solicitors: Murray Burke (Applicant in person) Lander & Rogers Lawyers (Respondent) File Number(s): 1510419