Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hansen v Commissioner of Police [2020] NSWCATAD 89 Hearing dates: 17 February 2020 Date of orders: 24 March 2020 Decision date: 24 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: D Connolly, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE LAW – public access to government information– personal information – whether prejudice to the effective exercise of an agency's functions – whether prejudice to a deliberative process – balancing public interest considerations Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Police Act 1900 Privacy and Personal Information Protection Act 1998 Cases Cited: Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Luxford v Department of Education and Communities [2016] NSWCATAD 118 Raven v University of Sydney [2015] NSWCATAD 104 Transport for NSW v Searle [2018] NSWCATAP 93 Category: Principal judgment Parties: Cathy Hansen (Applicant) Commissioner of Police (Respondent) Representation: Applicant in person Crown Solicitor (Respondent) File Number(s): 2019/00322304 Publication restriction: Pursuant to s 64 Civil and Administrative Tribunal Act 2013, disclosure of:(a) the material filed by the respondent on a confidential basis (exhibit Confidential R2);(b) the evidence and submissions given in private and the record of that part of the proceedings conducted in private on 17 February 2020; and(c )those paragraphs of these reasons identified as [Not for publication]is prohibited.That material is not to be released to either the applicant or the public. REASONS FOR DECISION Background 1. Ms Cathy Hansen has applied to the Tribunal for review of a decision made by the Commissioner of Police under the Government Information (Public Access) Act 2009 (the GIPA Act) refusing her access to documents held by the Commissioner. 2. Ms Hansen was employed by the NSW Police Force (the NSWPF) in the Senior Executive role, Director Contract Management, from 18 February 2019 until her employment was terminated on 8 July 2019, within her probation period. 3. On 16 July 2019 Ms Hansen wrote to the NSWPF seeking reasons for the termination of her employment. Not satisfied with that response, on 4 August 2019 Ms Hansen requested access to the following information: 1. Her personnel file including documentation relating to her employment as a Senior Executive; 2. Issue Papers and correspondence regarding her hire and termination; and 3. applications for expenses and leave and approval/ rejections. 1. On 3 September 2019 the NSWPF issued a Deemed Refusal Notice as the application was not determined within 20 working days. 2. On 13 September 2019 a late Notice of Decision was issued releasing some documents in full, some in part and withholding other documents in full. 3. On 15 October 2019 Ms Hansen applied to the Tribunal for administrative review stating that the NSWPF had not provided copies of all approved leave forms and the Briefing Paper regarding her termination. She wanted to know the reasons provided to the Commissioner for her termination. 4. A case conference was held on 12 November 2019 and orders were made that the Commissioner reconsider the decision of 13 September 2019 and provide the decision on reconsideration by 9 December 2019. The Commissioner agreed to approve Ms Hansen's request for access to all her approved leave forms. 5. On 10 December 2019 a Notice of Decision (Remitted) was provided. The NSWPF had agreed to provide a copy of her leave history report. The Schedule in the Notice of Decision records that the NSWPF released in full or in part all documents sought except for the Briefing Paper dated 28 June 2019 regarding the termination of Ms Hansen's employment. 6. At a case conference on 17 December 2019 Ms Hansen confirmed that she sought only the release of the Briefing Paper, which had been withheld in full. 7. The Commissioner decided not to release the Briefing Paper on the basis there was an overriding public interest against disclosure, having identified the relevant public interests against disclosure as those in cll 1(d), 1(e), 1(f), 3(a) and 3(b) of the Table in s 14 of the GIPA Act. Relevant legislation 1. The object of the GIPA Act, as set out in s 3, is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information, which is to be restricted only when there is an overriding public interest against disclosure. There is a presumption in favour of disclosure unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. 2. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act. 3. There is a general public interest in favour of disclosure of government information: s 12(1) GIPA Act. Examples of public interest considerations in favour of disclosure are provided in a Note to s 12: Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. The term "personal information" is defined in cl 4 of Sch 4 to the GIPA Act in part as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. However it does not include information that reveals nothing more than the fact the person was engaged in the exercise of public functions. 2. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 1. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. 2. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. The personal factors of the application may be taken into account as factors in favour of providing an applicant with access to information: s 55(2) GIPA Act. 2. The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. The Commissioner's evidence 1. The Commissioner relies on an affidavit affirmed on 24 January 2020 by Ms Teresa Heien, Manager Workforce Advisory, NSWPF and written submissions. Ms Heien also gave oral evidence. Ms Heien's affidavit 1. Ms Heien has been employed by the NSWPF since December 1988 and in her current position since 23 September 2019. She was not directly involved in the formal process for Ms Hansen's termination of employment. 2. Ms Heien gave a description of the procedures for the termination of NSWPF Senior Executive staff, noting that s 40(2) of Part 5 the Police Act 1990 provides that the Commissioner may terminate the employment of NSWPF Senior Executive "at any time, for any or no stated reason and without notice". The Commissioner has not delegated his functions under Part 5. 3. When an Executive Director has concerns about the performance of a Senior Executive employee certain processes are followed. There is a conversation with the employee advising that a briefing paper recommending the termination of their employment has been prepared. The briefing paper is submitted to the Deputy Commissioner and Commissioner, setting out relevant information, recommending termination and seeking approval. The draft letters of termination attached are brief and do not provide reasons for the termination. Usually the Executive Director will have discussed performance or other issues with the Senior Executive employee prior to termination. 4. Briefing papers to the Commissioner of this nature are treated with a high degree of confidentiality and marked accordingly. They are securely stored and access is restricted to employees with the appropriate security access. 5. Ms Heien expressed concerns regarding the release of such briefing papers for the following reasons: 1. The information contained is considered to be highly sensitive and may include an account of concerns about performance, details of conduct issues or information about their personal circumstances. They may include information provided by employees or external stakeholders. 2. If compelled to disclose such briefing papers under the GIPA Act, authors may be more circumspect in relation to the content and detail included. This could impact on the ability of the Deputy Commissioner and Commissioner to make a considered assessment as to the appropriateness of the recommendations. 3. Executive Directors would be inclined to rely on verbal discussions as the primary means of conveying their reasons for recommending termination. This would have a detrimental effect on the corporate record of the NSWPF. 4. Disclosure would reveal the identity of other employees/external stakeholders who have been named or have raised concerns about the performance and conduct of an employee. This would be an invasion of the privacy of any third party. It would not be practicable to consult with third parties before information is released due to the sensitivity of the issues dealt with in the briefing paper. The identities of those third parties should be protected so as not to discourage frank disclosure. 5. Disclosure of information provided by external stakeholders may damage relations and cause reputational damage for the NSWPF. The Commissioner's submissions 1. On 24 January 2020 the Commissioner provided a submission acknowledging the general public interest in favour of disclosure and accepting that disclosure of the information in the Briefing Paper could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF's human resource functions in relation to Senior Executives. The Commissioner also accepted the Briefing Paper contains Ms Hansen's personal information and that this is a factor in favour of disclosure. 2. With respect to cl. 1(d) the Commissioner referred to the concern that disclosure may reveal the identity of third parties who have raised concerns about performance and/or conduct of the employee and the nature of those concerns. This would discourage employees from coming forward in the future due to concerns about their privacy. There is a reasonable possibility that employees would be reluctant to volunteer such information in future should briefing papers of this nature be susceptible to release. 3. With respect to cl. 1(e) it is submitted that the process described in Ms Heien's affidavit with respect to briefing the Commissioner on a termination of employment recommendation is clearly a deliberative process in the exercise of the NSWPF's human resource functions. The briefing paper itself contains a recommendation. Due to the nature of the particular deliberative process under consideration, release of information could prejudice future deliberative processes in relation to similar decisions, notwithstanding that the particular deliberative process in this case has concluded. It is submitted that disclosure of the information relating to this deliberative process would prejudice the effective exercise of the NSWPF's human resource functions. 4. Should briefing papers of this nature be disclosed under the GIPA Act, Executive Directors would be inclined to rely on verbal discussions. The Tribunal should expect that increased reliance on oral communications would have a detrimental impact on the corporate record of the NSWPF's ability to make effective human resources decisions. 5. The Commissioner cited Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [107], where the Tribunal accepted that officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. 6. With respect to cl 1(f) it is submitted the NSWPF's functions include anything necessary for, or incidental to, the exercise of its functions conferred on it under the Police Act: s 6(2)(c). The human resources function is necessary to ensure that the NSWPF is effectively staffed. Disclosure of briefing papers could reasonably be expected to prejudice the ability of the NSWPF to carry out its human resources functions, as a likely consequence of disclosure would decrease the amount of detail included in briefing papers and increase reliance on verbal discussions. Less detail provided in briefing papers could reasonably be expected to impair the NSWPF's ability to make effective human resources decisions. Also where information has been conveyed by, or relates to, an external stakeholder, disclosure of the information has the potential to damage the relationship with that stakeholder. 7. With respect to cll 3(a) and (b), it is submitted in circumstances where briefing papers include information about, or provided by, other employees or external stakeholders, disclosure could reasonably be expected to reveal an individual's personal information and/or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). The Briefing Paper contains personal information of third parties which goes beyond merely revealing the fact that the person's identified were engaged in public functions. There is a widely held expectation that sensitive information about interpersonal relationships between employees will remain confidential and disclosure of such information would be considered an invasion of privacy of the individuals concerned. 8. It is submitted the unconditional nature of disclosure under the GIPA Act is particularly relevant as concerns as to the privacy implications of disclosing the personal information of individuals are heightened when there are no limitations as to the manner in which the information may be disclosed or used. It would not be possible to overcome this concern by redacting the names of the persons identified in the Briefing Paper as the context in which this personal information appears would enable her to discern from the substance of the Briefing Paper the identity of the relevant individuals. 9. It is submitted that disclosure of the information in the Briefing Paper would not be permitted under s 18(1) of the PPIP Act which limits disclosure by a public sector agency of personal information unless certain circumstances are met and this case does not fall within the scope of s 18(1). 10. Clauses 3(a) and (b) should be given significant weight when applying the public interest test due to the sensitivity of the personal information in issue. Also relevant is the impracticability of consulting the individuals to ascertain their views with respect to disclosure as it would not be possible to consult with third parties without revealing the substance of the Briefing Paper. It is submitted there is sufficient basis for the Tribunal to find that the individuals concerned would likely object to the disclosure of their personal information. Ms Hansen's evidence and submissions 1. Ms Hansen provided a written submission dated 4 February 2020. It includes her evidence and submissions in response to Ms Heien's affidavit and the Commissioner's submissions. 2. Ms Hansen expressed concern that the information could reasonably be expected to reveal or substantiate that the NSWPF or a member of the NSWPF, engaged in misconduct, or negligent, improper or unlawful conduct. She submitted the fact that disclosure might cause embarrassment for, or loss of confidence in, the government is irrelevant. She noted the information is personal to herself. 3. In response to Ms Heien's affidavit Ms Hansen stated the following. There was no conversation between her and the Executive Director, Police Property Group, Mr Gerard Stepien, nor any member of the NSWPF, concerning the preparation of a briefing paper, nor the reasons why it was being prepared. She was not provided with information about any next steps, nor offered any support as part of a termination process. She requested performance reviews however they were postponed and no performance agreement was established prior to her termination. During informal meetings she was informed that if she was not performing she would be told. She was told on 9 April 2019 that she had passed her probation period. She received a complimentary letter on 16 April 2019 in relation to her work. 4. However on 5 July 2019 she was directed to attend a meeting with Mr Stepien. She was not offered a support person yet he had two support people. She was not given prior notice of the nature of the meeting. When she asked for reasons for the decision and she was told that contractually they did not have to give her a reason. She raised concerns about Mr Stepien's failure to comply with the NSWPF's process in respect of performance reviews. 5. Ms Hansen argued that, had the procedures described by Ms Heien been followed, she would not be seeking a copy of the Briefing Paper. She noted that Ms Heien refers to hypothetical situations, rather than Ms Hansen's circumstances. 6. Ms Hansen submitted that it is unclear to her if the Briefing Paper contains any personal information about another individual that reveals nothing more than the fact that they were engaged in the exercise of public functions. 7. Ms Hansen raised concerns that the Briefing Paper may not include information about the process undertaken in her case. She submitted that, the fact that disclosure might cause Executive Directors to be cautious, or cause embarrassment, or a loss of confidence in the NSWPF, is irrelevant. She submitted that, the fact disclosure might cause the NSWPF to reduce the amount of information and detail included in future briefing papers, is irrelevant. 8. Ms Hansen noted the Commissioner accepted disclosure could reasonably be expected to promote accountability and transparency in the exercise of its functions and that the Briefing Paper contains her personal information. She repeated her evidence and submissions in response to Ms Heien's affidavit, which she considered to be, in part, merely a description of what should have been done, and not a statement of the actions undertaken in her case. 9. In relation to whether disclosure would prejudice the effective exercise of the NSWPF's functions, Ms Hansen questioned whether s 6(2)(c) of the Police Act intends to permit the agency to breach its own policies and procedures. 10. In relation to disclosure of information identifying third parties, Ms Hansen submitted that the Commissioner is able to consult with individuals to ascertain their views with respect to any disclosure, and such actions are regularly performed for other similar matters. She is not satisfied that the individuals objected in this case. 11. Ms Hansen expressed concern that she has been victimised. She requested that the Tribunal give consideration to a number of issues in relation to the process and her dismissal. She sought evidence that the NSWPF had complied with policies and procedures and had not breached the employment contract with her. The hearing 1. At the commencement of the hearing the Tribunal explained to Ms Hansen that it did not have jurisdiction to consider the issue of whether the Commissioner had demonstrated that the decision to terminate her employment was fair or that there was compliance with policies and procedures in her case. It explained that the Tribunal's jurisdiction is confined to the decision to not release certain information, in this case the Briefing Paper. Ms Hansen indicated she understood. 2. Ms Sarah Ienna, on behalf of the Commissioner, spoke to the submissions set out above. She argued the release of the Briefing Paper would have a stifling effect on the provision of information by internal and external stakeholders. She argued where identity information goes beyond mere identification there is a reasonable expectation that personal information will be kept confidential. She noted the Briefing Paper included information about relationships with external stakeholders and other identifiable third parties and there is a compelling public interest against disclosure in these circumstances. 3. Ms Ienna also noted this is a case where there are specific provisions of the Police Act which allow for termination of senior executive employment for any or no reason. She argued that the applicant should not be permitted to use the GIPA Act to circumvent those provisions. 4. Ms Hansen gave oral evidence. She repeated her concerns that the NSWPF's termination process should have been followed and it was not in her case. She was not informed of the reasons why her employment was terminated. She has a strong personal interest in knowing the reasons because this is relevant to her own personal development and the success of her future employment. It will also assist her to move on and know whether there are any issues in relation to her performance about which she needs to be concerned, as she understood that she was performing satisfactorily. 5. Ms Heien gave oral evidence and stated there was an official policy to converse with employees about termination, but not in relation to senior executive employment. That policy related to administrative employees and police officers. 6. In cross-examination Ms Heien explained that, given the senior executive is very small, there is no standalone policy on termination. There is guidance provided in the legislation and the process closely follows that applying to administrative employees, but there is not a policy. 7. On re-examination Ms Heien explained that the reference to an expectation is not a reference to a policy document, just general process. Regardless of whether the process was followed or not in Ms Hansen's case, Ms Heien remains concerned about disclosure for the reasons given in her affidavit. Confidential hearing 1. A confidential session was held in the absence of the applicant and the public. The confidential session gave the Tribunal an opportunity to examine the Briefing Paper in the presence of the respondent. This process is provided for in s 107 of the GIPA Act. 2. An order was made under s 64 of the Civil and Administrative Tribunal Act 2013 that the material filed by the respondent on a confidential basis and the record of that part of the proceedings conducted in private are not to be released to either the applicant or to the public. The order also applies to those portions of these reasons identified as [Not for publication]. 3. Evidence and submissions provided at the confidential hearing 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] Discussion and findings 1. In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, in determining this application the Tribunal is required to: 1. Identify the public interest considerations in favour of disclosure; 2. Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the Commissioner; and 3. If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under s 55. 1. As recently confirmed by the Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [104], while that process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act. Public interest considerations in favour of disclosure 1. It is not in dispute that the Briefing Paper includes Ms Hansen's personal information. 2. Ms Hansen raised the general public interest in favour of disclosure of government information. The Commissioner acknowledged that disclosure of the information in the Briefing Paper could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF's human resource functions in relation to Senior Executives. 3. Ms Hansen raised her concern that the information could reasonably be expected to reveal or substantiate that the NSWPF, or a member of the NSWPF, engaged in misconduct, or negligent, improper or unlawful conduct. 4. The Tribunal finds that the public interests in favour of disclosure are that the document contains personal information of the applicant, and disclosure could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF's human resource functions in relation to Senior Executives. Ms Hansen has alleged that the proper process were not followed and, if that were substantiated, there may be a public interest in favour of disclosure as identified in paragraph (e) of the Note to s 12. Personal factors 1. Ms Hansen has indicated that personal factors should be taken into account as considerations in favour of providing access to the information. For the reasons given at the hearing she wants to know why her employment was terminated. She has a strong personal interest in knowing the reasons, because this is relevant to the success of her future employment. These are factors which can be taken into account under s 55(2) of the GIPA Act. Public interest considerations against disclosure 1. The Tribunal accepts that the unconditional nature of disclosure under the GIPA Act means that there are no limitations as to the manner in which the information may be disclosed or used. It is satisfied it is not possible to overcome this concern by redacting the names of the persons identified in the Briefing Paper as the context in which this personal information appears would enable Ms Hansen to discern from the substance of the Briefing Paper, given her particular knowledge of the circumstances, the identity of those third parties. Prejudice the future supply of confidential information: s 14, cl 1(d) 1. Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. 2. The Tribunal has considered the meaning of the term "confidential information". In Raven v University of Sydney [2015] NSWCATAD 104 at [62] the Tribunal held that the term "confidential information" is not information which may not be disclosed in any circumstances, rather "information which is not to be disclosed in ordinary circumstances". Camilleri at [34] held that the enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it". 3. Ms Hansen questions whether the information about third parties reveals nothing more than the fact that they were engaged in the exercise of public functions, suggesting the information supplied is not confidential. For reasons discussed in more detail below, the Tribunal is satisfied this is not the case. 4. [NOT FOR PUBLICATION] 5. The Tribunal accepts that complaint handling relies on the provision of relevant information and that, if the supply is prejudiced, it would undermine the NSWPF's ability to exercise its human resources and stakeholder relationship functions. 6. The Tribunal notes that cl 1(d) is concerned with the future supply of confidential information. In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 at paragraph [50], the Appeal Panel observed that: …conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise)…. To that extent, a relevant prejudice to the future supply of information would arise. 1. In determining whether disclosure would prejudice the supply of information, the test is not whether the third parties in this case would in future refuse to supply information but whether information of the kind in question facilitates the exercise of the NSWPF's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]. 2. The Tribunal accepts that, if the identities of third parties are revealed, it may discourage third parties raising such concerns in the future. It has formed the view it is clear from the nature of the withheld information, and from the circumstances in which it was provided, that it is information that facilitates the effective exercise of the NSWPF's functions. It is satisfied the information supplied by third parties, is integral to the exercise of its human resource processes and management of stakeholder relationships. It is also satisfied disclosure of information of this nature could reasonably be expected to prejudice the supply of such information as others might not be prepared to supply such information if they are concerned about it being revealed. This is at stake even if the third parties' names are redacted. Reveal a deliberation conducted, or recommendation so as to prejudice a deliberative process: s.14, cl 1(e) 1. Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion or recommendation given, in such a way as to prejudice a deliberative process of government or an agency. 2. In response to the Commissioner's submissions on this consideration, Ms Hansen submitted that the decision not to supply the Briefing Paper is because it might cause embarrassment to, or loss of confidence in, the Commissioner, and this is not a relevant consideration. 3. [NOT FOR PUBLICATION] 4. Ms Hansen has given evidence in relation to this consideration that there was no conversation between her and the Executive Director, and the process described by Ms Heien was not followed in her case. The Tribunal makes no finding as to whether this was the case. As it explained to Ms Hansen at the commencement of the hearing, it does not have jurisdiction to review the decision to terminate her employment. 5. The Tribunal accepts the submission that the Briefing Paper was prepared to brief the Commissioner on a termination of employment recommendation. While it acknowledges the relevant deliberation has already concluded, it is satisfied the release of such deliberations and recommendations regarding termination of employment may inhibit the preparation of written material and thus prejudice the deliberative process. It accepts that, should such briefing papers be disclosed, the parties would be inclined to rely on verbal discussions in their deliberations and this may have a detrimental impact on the ability to make sound human resources decisions. 6. The Tribunal has also had regard to Senior Member Montgomery's reasons in Luxford and agrees that officers should be able prepare written material, including briefing papers, relating to decision-making to ensure a proper record of deliberations and recommendations without hesitation due to fear of disclosure of the material. It agrees that officers should be able to put in written form what they could otherwise convey orally, in circumstances where any oral communication would remain confidential. This allows officers to deliberate and make honest and frank recommendations, in the written form, on sensitive matters such as termination of employment. Accordingly the Tribunal gives this consideration significant weight. Prejudice the effective exercise by an agency of the agency's functions: cl 1(f) 1. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the exercise of the NSWPF's functions. 2. In relation to this consideration Ms Hansen has repeated her submissions that embarrassment to, or loss of confidence in, the Commissioner, is not a relevant consideration. For the reasons given above the Tribunal is not satisfied the Commissioner is withholding the information because of possible embarrassment or loss of confidence in the NSWPF. 3. With respect to this consideration Ms Hansen also questions whether s 6(2)(c) of the Police Act intends to permit the Commissioner to breach policies and procedures. The Tribunal is of the view this question is not relevant. It does not have jurisdiction to review the Commissioner's decision to terminate Ms Hansen's employment or the process undertaken to reach that decision. Similarly it does not need to consider her concern that Ms Heien's evidence refers to hypothetical situations, rather than Ms Hansen's circumstances. 4. It has been submitted by the Commissioner that disclosure of briefing papers could reasonably be expected to prejudice the ability of the NSWPF to carry out its human resources functions, as a likely consequence of disclosure would decrease the amount of detail and information included in the briefing papers and increase reliance on verbal discussions. This concern has been addressed already to some extent. The Tribunal accepts that it is important that briefing papers of this nature include the relevant material and at times this will be sensitive and include information provided by third parties who may have given it in confidence. It also accepts that it may be detrimental to the NSWPF's functioning if such briefing papers exclude relevant information because of fear of disclosure. In this case the Tribunal accepts this could impact on the NSWPF's ability to make effective human resources decisions and could have a prejudicial effect on the NSWPF's ability to manage its human resources. 5. [NOT FOR PUBLICATION] Reveal an individual's personal information: cl 3(a); and Contravene an information protection principle: cl 3(b) 1. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. 2. Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under, in this case, the PPIP Act. 3. The information protection principle contained in s 18(1) of the PPIP Act limits disclosure of personal information unless the agency, in disclosing the information, has no reason to believe that the individual concerned would object to the disclosure, or the individual concerned is reasonably likely to have been aware that the information is to be disclosed, or the agency believes on reasonable grounds that disclosure is necessary to prevent or lessen a serious and imminent threat. 4. Ms Hansen emphasised that the information is personal to herself. It is acknowledged by the Commissioner that the Briefing Paper includes Ms Hansen's personal information. However it is also submitted that these are circumstances where the Briefing Paper includes information about, or provided by, other employees or external stakeholders, and disclosure could reasonably be expected to reveal an individual's personal information and/or contravene an information protection principle under the PPIP Act. 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. The Tribunal is not satisfied it would be reasonably practicable to consult the third parties as to whether they have any objections to the disclosure without revealing the purpose of the Briefing Paper and exposing sensitive information about Ms Hansen. 8. Ms Hansen has questioned whether the information about the third parties reveals nothing more than the fact that they were engaged in the exercise of public functions. Having regard to the information in the Briefing Paper, the Tribunal is satisfied it contains personal information about third parties which would not fall within the exclusion in paragraph (3)(b) of the definition of "personal information" in cl 4 of Sch 4 to the GIPA Act. 9. The Tribunal is satisfied that disclosure of the information could reasonably be expected to reveal the personal information of persons other than Ms Hansen. It is not satisfied that disclosure in this case falls within the scope of s 18(1). It has formed the view these are significant considerations against disclosure. Whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure 1. The Tribunal accepts Ms Hansen is the subject of the Briefing Paper, which includes her personal information. This weighs in favour of disclosure. It also accepts disclosure could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF's human resource functions and gives this factor some weight. It understands Ms Hansen's desire to know why her employment was terminated. However it notes s 40(2) of the Police Act provides that the Commissioner may terminate the employment of a Senior Executive at any time, for any or no stated reason and without notice. 2. For the reasons set out above the Tribunal has given significant weight to the public interest considerations against disclosure in cll 1(d), 1(e), 1(f), 3(a) and (b). It has accepted the information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the NSWPF's functions. It also gives considerable weight to the concern that disclosure would reveal the deliberations of the parties in the preparation of the recommendation given to the Commissioner and that officers should be able to put in writing what they could otherwise convey orally, to allow for honest and frank recommendations, in the written form, on sensitive matters such as termination. It accepts this is important for the corporate record. 3. In the Tribunal's view a particularly significant public interest consideration against disclosure is that the information could reasonably be expected to reveal personal information of third parties in contravention of an information protection principle under the PPIP Act. The Tribunal is not satisfied, given the nature and context of the Briefing Paper, that redaction of the names of third parties would be sufficient to avoid the effect identified in a public interest against disclosure, to which the Tribunal gives considerable weight. 4. The Tribunal is of the view the public interest considerations against disclosure are of such significance they outweigh the public interest considerations in favour of disclosure. 5. The task of the Tribunal in this review is to determine, on the evidence before it, what is the correct and preferable decision, noting the Commissioner bears the onus of establishing that its decision is justified. The Tribunal is satisfied for the reasons given above that the Commissioner has done so. Orders 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 24 March 2020