In Speer v NSW State Emergency Service [2018] NSWCATAD 226 a former deputy region controller was seeking access to information held by the SES in relation to complaints that had been made about his performance and investigations by the SES.  The application was made under the Government Information (Public Access) Act 2009 (NSW) (“the GIPA Act”).  (This Act replaces the older, but perhaps more familiar, Freedom of Information or FOI Act).

It is a basic rule of natural justice that a person the subject of disciplinary proceedings is entitled to know the substance of the allegations against them in order to respond to them. It is also fundamental, at least to criminal justice, that a person has the right to face those who are giving evidence against them.  The Australian Law Reform Commission in its report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Interim Report 127) said:

10.81   The High Court has said that ‘confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial’. The right to confront an adverse witness has been said to be ‘basic to any civilised notion of a fair trial’. In R v Davis, Lord Bingham said:

It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.

10.82   This principle, Lord Bingham said, originated in ancient Rome, and was later recognised by such authorities as Sir Matthew Hale, Blackstone and Bentham.

The latter regarded the cross-examination of adverse witnesses as ‘the indefeasible right of each party, in all sorts of causes’ and criticised inquisitorial procedures practised on the continent of Europe, where evidence was received under a ‘veil of secrecy’ and the door was left ‘wide open to mendacity, falsehood, and partiality’.

10.83   The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

Given that witness have to give evidence and be available for cross examination it follows that a potential witness may not be guaranteed anonymity and this may well discourage people coming forward with information relevant to wrongdoing.

These principles, at least the principle of the right to confront an opposing witness, are fundamental to the criminal law but they are also applicable in other decisions, such as disciplinary proceedings, where a person’s rights are being affected.   Note the objections from Lord Bingham, above, where ‘where evidence was received under a ‘veil of secrecy’’.

Under the GIPA Act a government entity had to consider both the public interest in disclosing information held by the agency, as well as the public interest in not disclosing that information.  The presumption is that government information should be disclosed.  The SES had released some information but withheld other information.  Some of the material was heavily redacted such that Mr Speer argued (at [7]) the ‘letters have been heavily redacted to the point that they supply me with no information as to what I have allegedly done to cause the staff members to feel as they do. … I seek information as to what the complaints are so that I might address them.’

The matter came before Senior Member Montgomery, sitting in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal.  It was the Tribunal’s function to reconsider the SES response and to ‘determine the “correct and preferable decision” ([9]).  Senior Member Montgomery said (at [14]):

The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 9(1) of the GIPA Act, Mr Speer has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.

The SES argued (at [24]) that release of the redacted or withheld information would or could:

  • prejudice the supply of confidential information that facilitates the effective exercise of the SES’ functions
  • reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the government or the SES
  • prejudice the effective exercise by the SES of its functions
  • result in the disclosure of information provided to the SES in confidence
  • reveal an individual’s personal information;
  • contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”).

Letters of complaint

With respect to letters of complaint, these were provided in redacted form.  The SES argued that to release the entire letters, including the identify of those who wrote them, would be a breach of the expectation of the letter writers that they would be confidential.  Further it would discourage future disclosure of concerns about senior members and this, in turn, would ‘prejudice the ability of the NSW SES to protect persons and property’ ([36]-[38]).

Senior Member Montgomery determined that the SES had correctly placed a high weight on the interest in releasing the information and also on the value in not releasing the information.   He concluded that the SES were correct to withhold the redacted information.  He said (at [44]):

I have considered the contents of the letters and the other information that is available to Mr Speer. Given the extent of the available information, it is my view that the release of the withheld information i.e. the authors’ details and specific details of their complaints, would not assist Mr Speer greatly in his quest to achieve procedural fairness. I note that Mr Speer is no longer employed by the SES and there are no ongoing disciplinary matters involving him. In these circumstances greater weight should be given to the public interest considerations against disclosure than those considerations in favour of release.

Ken Speer Performance Management.

With respect to this document the SES argued (at [48])

… that this document was prepared by a witness for the purposes of an investigation and that it was provided in confidence. It submits that investigations are necessary to resolve issues that would prevent it serving its functions and that disclosure of the withheld information could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of those functions.

And further (at [51]):

The SES decided to refuse access to this document because it was of the view that it would not be possible to redact the document in a way that would hide the identity of the witness.

At [56]-[57] Senior Member Montgomery said:

I accept that release of the withheld information could reasonably be expected to have some impact on the supply of information in the future. However, I do not accept that the prejudice would be so great that the agency would be unable to obtain the evidence that it would require for the investigation.

In my view, greater weight should be given to the public interest considerations in favour of disclosure than to those against disclosure. It follows that the SES decision to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.

Other witnesses identifying material

In other documents material that would identify witnesses and their phone numbers had been redacted.  Senior Member Montgomery confirmed the decision to withhold that information.  He said (at [62]):

I accept that there is a pubic interest consideration in favour of release of this information because it would allow Mr Speer to ascertain the identities of those who were prepared to give evidence in relation to him… However, I accept that if this information were released, it may mean that witnesses would be more reluctant to give evidence in the future. In the circumstances, given that most of the information contained within these documents has been released, it is my view that the public interest consideration against disclosure should be given greater weight than those in favour of release.

Mr Speer also argued that the SES must have had other documents in relation to her performance assessment that they had not identified.  The tribunal considered the obligations on an agency to search for information and determined that the searches conducted by the SES were reasonable and comprehensive.   That the applicant thinks the agency should have further documents does not determine that they do have extra documents.  All that they can produce is what they have.  As Senior Member Montgomery said:

Mr Speer has suggested that the failure to keep file notes is not in accordance with good governance practices and which are expected of senior officers. This suggestion does not assist. There must be reasonable grounds to believe that the agency holds more information than it has identified. It is not enough for an applicant merely to assert non-compliance on the basis of general distrust of the agency.

Final orders

Senior Member Montgomery confirmed the decision by the SES to withhold information that had been received in confidence and which may have identified those who gave information that was contrary to Mr Speer’s interests.  He did however order that the Performance Management document prepared by the SES be provided to Mr Speer.

It is not clear from this decision what remedy Mr Speer is seeking and whether he is making a claim for damages or unlawful dismissal or the like.  The actual reason he wanted the information was not a matter for NSW Civil and Administrative Tribunal, the Tribunal only had to consider the release of the information under the GIPA Act.  Given the information was about Mr Speer he was entitled to have that information unless there was a stronger public interest in not disclosing it.

The Tribunal did consider that issues such as the promise of confidentiality and the need to maintain confidentiality to ensure that the agency could receive and people would be willing to provide information was important.

As noted above the right to face one’s accusers is a fundamental tenet of criminal law but these were not criminal proceedings. As the Tribunal noted ‘Mr Speer is no longer employed by the SES and there are no ongoing disciplinary matters involving him.’

Legal lessons

Although natural justice does suggest that people should have access to all information that is used to make decisions that are harmful to them, there are competing interests including the need to reassure people that they can give information in confidence.  The results here may well have, in fact would have been different if Mr Speer was facing criminal charges but that was not the case.

The other legal lessons too is that you do not have to take decisions made by agencies as final. There are avenues to have the decisions reviewed by someone who is a step removed from the agency and can bring a more independent view to the issues.  That does not mean you will win or that they will overturn the original decision. But it does mean that there are avenues to have decisions reviewed where a person feels that the original decision maker has not correctly applied the law.