Daniels v NSW State Emergency Service [2024] NSWCATAD 118 (7 May 2024) involves the former commander of the Coffs Harbour unit of the NSW SES.  Mr Daniels was removed from the commander’s position following an investigation into allegations of misconduct.  In this application before the NSW Civil and Administrative Tribunal (NCAT) he sought a review of decisions made by the SES in response to his application to access records produced in the course of the investigation.

The Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) works on the assumption that information held by a government agency, such as the SES, should be made available unless there is good reason to withhold the information.

The issue

In this case the applicant, Mr Daniels, made three applications for access to information.  The SES refused to respond to the initial applications on the basis that responding ‘would require an unreasonable and substantial diversion of the agency’s resources’ (GIPA Act s 60(1)(a)). Mr Daniels challenged that decision which in turn led to a mediation between the parties. The outcome of the mediation was that Mr Daniels would reduce the scope of the application, that is the amount of material being sought, and the SES would reconsider the application for the more limited information ([9]).  The Tribunal put the results of the mediation into orders. One of the orders was that the SES would ‘provide the applicant … with a schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin, including details of any attachments to the emails’ ([10]).  The affidavit said that the SES had identified 294 emails with 697 attachments that may have been relevant to the application as originally drafted (ie not the more narrow, revised scope of the application).

The SES gave access to some documents and refused access to others. With respect to a request for ‘Report or reports of Anthony Day relating to allegations of misconduct against the applicant’ the SES reported that there were no reports to be disclosed. Mr Day is ‘a Deputy Zone Commander in the Northern Zone for NSW SES’. The Northern Zone includes Coffs Harbour ([62]). The applicant challenged these decisions.

The decision

The Tribunal noted (at [53]) that it exercised a limited jurisdiction and its powers and functions were determined by the GIPA Act. The applicant had asked the Tribunal to ‘review the whole of the Agency’s conduct against ‘The Ethical Framework’ for the NSW public sector published by the NSW Public Service Commission and its core values of ‘integrity’, ‘trust’, ‘service’ and ‘accountability’.’ ([25]). This was beyond the Tribunal’s jurisdiction.

Reports by Mr Day

With respect to the reports of Mr Day the applicant argued that there must be such reports but that is not proof that there are reports.  The SES gave evidence of the search strategy it had adopted ([29]).  Senior Member P French said (at [58]-[59]), that the GIPA Act s 53:

… imposes a “reasonableness” standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate” and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer …

It thus falls to the agency to establish … that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant’s … right to government information.

The Tribunal reviewed the agency’s decisions including reviewing confidential documents and determined that there was no evidence that documents matching the request – that is any report or reports authored by Mr Day existed.  Member French was critical of one aspect of the agency’s search strategy, that is they did not ask Mr Day directly if he had written any report or reports but he did not send the matter back to the agency on that basis, instead coming to the conclusion that:

… the evidence is sufficient to persuade me that the allegations and the investigation process did not involve Mr Day, such that there is an unlikelihood that he would hold a ‘report’ or ‘reports’ authored by him in relation to these matters that would not otherwise appear in the Agency’s records if they did exist. Remittal of this item would be a futility in these circumstances, and unreasonably prolong finalisation of the access request.

He was therefore satisfied that the agency conducted reasonable searches and if those searches did not produce any documents that matched the description of documents sought then there were no documents to produce.

The schedule of emails

After Mr Daniels challenged the outcome of his first applications, the parties agreed that the application would be narrowed, and the agency would go back and look for documents that met the narrower scope. It was also agreed that the agency would provide a schedule detailing the emails referred to in an affidavit. The Tribunal held that the production of that schedule was not a response to the GIPA application – that is the outcome of the mediation was in two parts. One, a narrower application that would be reconsidered and two, the production of the email schedule.  The agreement to provide the schedule of emails ‘operates independently of the remitted access request’ ([70]).

Because the production of the schedule and the decision to give access to some, but not all fo the emails, was not responsive to the GIPA application, the Tribunal had no jurisdiction to review the agency’s decision ([71]).  The Tribuanl also noted that the terms of the agreement had been that the agency would provide the schedule (ie a list) identifying the emails, not that it would provide complete access to each of those emails and each attachment ([72]).

The decision to withhold information

Although there is a presumption in favour of disclosure, information may be withheld when that is in the public interest. The Act sets out, in a table to s 14, factors that may be considered. The SES argued ([81]) that they withheld information on the basis that the release of the information would:

• ‘prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions’ (s 14, Table [1(d)]);
• ‘reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency’ (s 14, Table [1(e)]);
• ‘prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)’ (s 14, Table [1(h)]);
• ‘reveal an individual’s personal information’ (s 14, Table [3(a)]); and/or
• ‘contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002‘ (s 14, Table [3(b)]).

In short the SES sought to protect the confidentiality of those involved on the basis that if confidentiality could not be guaranteed people would not contribute to investigations and improper conduct may remain undetected (see [91]). At [93] the Tribunal said:

… I conclude on the evidence and submissions before me that the clause 1(d) consideration is properly engaged in this case. I am satisfied that the information at issue is confidential information which facilitates the agency’s complaint handling functions. I am also satisfied that the agency’s future ability to obtain this confidential information would be prejudiced if persons who are in a position to supply such information were to apprehend that it would be disclosed to a person in the position of the Applicant in a manner that would reveal their identity and opinions.

With respect to [1(e)] the Tribunal (at [100]) was:

… satisfied that the clause 1(e) consideration is engaged. The Investigation Report and refused emails clearly contain information related to consultation and deliberation conducted in relation to the complaint allegations and disciplinary process. The disclosure of this information would prejudice the proper exercise of the Agency’s complaint handling functions by deterring people with relevant information from participating in these processes lest their identity and opinions be exposed to a person whose conduct has been the subject of complaint. It would also inhibit officers with responsibility for conducting complaint investigations and disciplinary processes from obtaining advice and ‘thinking through’ issues with other relevant persons in writing because of the potential that these preliminary steps to a final outcome decision would be exposed to the person subject to the investigation/disciplinary process.

For s 14 Table [1(h)] to apply, Senior Member French noted that there was conflicting authority on whether the prejudice had to be to a particular investigation or whether the release of information might prejudice future investigations. He held that the agency had to demonstrate that the release of the information would prejudice the particular investigation and in this case they could not do that as the investigation and the disciplinary process had been concluded. He said (at [104]):

I cannot see how revealing the purpose, conduct or results of the Agency’s disciplinary investigation now could prejudice the conduct, effectiveness, or integrity of that investigation. That is because it has long since concluded. I am thus not satisfied that clause 1(h) is engaged in the circumstances of this case.

With respect to the claims that the release of the investigation report and the refused emails would release personal information, Member French said (at [105]):

The definition of ‘personal information’ … is capable of including complaints made about a person and the opinions or the person making the complaint. Information of this kind will be personal information of both the person subject to the complaint and the person who made the complaint…

He concluded (at [106]):

The Agency submits that the Investigation Report contains personal information about individuals in addition to the Applicant, including complaints made by some individuals, and the views expressed by individuals consulted about the allegations of misconduct against the Applicant or who have otherwise expressed an opinion about the Applicant in the context of the Investigation… Based upon my perusal of the Investigation Report and those emails I accept that is the case. The Agency further submits, and I accept, that merely redacting the names of the individuals contained in this information would not prevent their identity from being ascertained because the contextual information surrounding their name would reveal their identity to someone with knowledge of the organisation and its paid and volunteer personnel, such as the Applicant.

The Tribunal then had to weigh the competing interests both for and against disclosure. Senior Member French held (at [115]-[117]):

… In short summary, it is an essential function of an agency that it is able to receive and act on complaints of misconduct made against paid and volunteer staff in a manner which not only accords fairness to the subject of the complaint but also protects the privacy of any complainant or witness, and guards against the potential for retaliatory or some other form of adverse action to be taken against the complainant or witness by the subject person or others. If an agency could not protect information received or created during its investigative and deliberative processes from full exposure to a person subject to a misconduct inquiry there is a reasonable likelihood that this would deter complainants from raising allegations of misconduct which may be in the public interest, and witnesses from providing relevant information in relation to those allegations. At the least there is a risk they would be more guarded, and less candid, in doing so.

An agency also reasonably requires the freedom to obtain advice and feedback during the deliberative phase of an investigation to assist it to formulate a final position. There is a reasonable likelihood that the potential for exposure of information created during such a deliberative process, as distinct from its final outcome to the person subject to the investigation would inhibit and deter deliberation, potentially compromising the quality of decision-making on issues of organisational, and potentially, public importance.

The public interest test incorporated into s 13 of the Act requires the decision-maker to make a principled choice between competing values, where those values are incapable of reconciliation. In this case values related to the transparency of government information must be held subordinate to values related to the integrity of internal, and ultimately public, accountability processes.

Accordingly, the agency’s decisions to withhold certain documents, and its conclusion that it did not have any documents that matched a particular description was upheld.

Discussion

This decision is consistent with an earlier case reported in this blog also involving the NSW SES – see  Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

It is understandable that members who feel aggrieved by the process and the outcomes will want to know who said what and when and there is an obligation to ensure that they are ‘provided with sufficient information about the allegations made against them to ensure they have a reasonable opportunity to respond to the allegations’ ([86]) but that does not mean they have to be given access to every piece of information that has been received about them or the details of the thought process followed by those looking into the allegations.  There is a difficult balancing act between ensuring the respondent knows what is alleged and the need for an agency to be able to receive information and conduct its processes.  In this case the balance fell in favour of withholding certain information.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.