Posted on May 30, 2019 by Michael Levy and Carlo Zoppo
GIPA Act review of Information Commissioner’s decision finds Council’s decision justified
The NSW Civil and Administrative Tribunal (NCAT) recently considered an application under the Government Information (Public Access) Act 2009 (GIPA Act) for review of a decision of the Information Commissioner. While the Information Commissioner’s decisions when reviewing GIPA Act decisions of public sector agencies are not ‘Reviewable Decisions’, the Tribunal in this case treated the application before it as an application against the decision of the relevant agency, Wollongong City Council (Council). This decision provides useful guidance about the considerations which apply when considering whether it is in the public interest to release information under the GIPA Act that was received confidentially.
Between July 2014 and March 2015, the applicant, Robert O’Brien applied for a number of jobs at the Council. As part of the assessment of his job applications, the Council contacted Mr O’Brien’s nominated referees and sought opinions from them on his suitability for each of the positions he had applied for.
In June 2018, Mr O’Brien made a formal access application to the Council under the GIPA Act seeking access to those reference checks. The Council decided to provide Mr O’Brien with access to two reference checks (with the approval of the relevant referees) but withheld access to three further reference checks (the Decision) because:
- one referee was unable to be contacted (in order to provide their consent to the release of the reference check); and
- two other referees did not consent to the release of the information.
Mr O’Brien sought a review of the Decision from the Information Commissioner and the Commissioner upheld the Decision. Mr O’Brien subsequently appealed to NCAT against the decision of the Information Commissioner.
Application against the decision of the Information Commissioner
Although in this case the Council did not argue that there was no jurisdiction for NCAT to determine Mr O’Brien’s appeal there were grounds to make such an argument. This is because decisions of the Information Commissioner are not ‘reviewable decisions’ (within the meaning of the GIPA Act, the Administrative Decisions Review Act 1997 and the Civil and Administrative Tribunal Act 2013) and as such, NCAT does not have jurisdiction to review them.
As noted above however, the Senior Member, G Blake AM SC treated Mr O’Brien’s application as an application seeking the review of the Decision rather than any act of the Information Commissioner and the application was determined on that basis.
Relevant legal principles
The Senior Member summarised the relevant legal principles which are to be considered when determining access applications under the GIPA Act.
These are relevantly as follows:
- there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure;
- public interest considerations in favour of disclosure in this case relevantly included:
- the information being personal information of the person to whom it is to be disclosed;
- there is an overriding public interest against disclosure if on balance the considerations against disclosure outweigh those in favour of disclosure;
- public interest considerations against disclosure in this case relevantly included that release of the reports could reasonably be expected to:
- prejudice the supply of confidential information that facilitates the effective exercise of the Council’s functions; and
- reveal an individual’s personal information; and
- an agency must take such steps as are reasonably practicable to consult with a person before providing access to information relating to the person if it appears the information contains personal information about them.
In considering whether the Decision was the correct and preferable decision in the circumstances, the Senior Member consider the two public interest considerations against disclosure relied on by the Council. The Senior Member’s findings on these issues are set out below.
Prejudice to the supply of confidential information
Relying on previous decisions of NCAT, the Senior Member found that whether or not information supplied to an agency is “confidential information” is to be determined, primarily by reference to the conditions under which the agency conducts the service within which the information was received.
If it can be inferred that the information was provided on a confidential basis it is not necessary to show that there was an express obligation or understanding that the information was being provided in confidence. The information is more likely to be considered “confidential information” if the person providing the information was advised it would be confidential or had a reasonable expectation that it was being provided on that basis.
In the context of reference checks for a job application, the Senior Member found that referees would likely be less willing to act as referees and provide frank and candid information and opinions about a job applicant if they knew that the applicant could access their reports. It would be against the public interest in appointing the most suitable person for a position if the agency doing the recruitment did not have access to reliable information from referees regarding an applicant’s suitability for a position.
In terms of whether disclosure of confidential information “could reasonably be expected to” prejudice the agency’s ability to obtain such information in the future, the Senior Member found that the question to be asked is not whether disclosure of this type of confidential information would likely discourage a particular person from providing that information to the agency, the question is whether the agency’s general ability to obtain such information in the future would likely be prejudiced.
This reflects the approach taken by the Appeal Panel in Camilleri (Commissioner of Police, NSW Police Force v Camilleri (GD)  NSWADTAP 19) where the Appeal Panel stated:
We agree with the agency’s submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.
In this case, the Senior Member found that there was no evidence as to what the effects of the disclosure of confidential information “could reasonably be expected to” have. As such, the NCAT was unable to find there would be a prejudice arising from the disclosure and did not find that this consideration was established by the Council .
The Senior Member found that although the reports of Mr O’Brien’s referees were about Mr O’Brien and were therefore likely to contain “personal information” about him, the referees’ opinions were also likely to reveal the “personal information” of the referee.
GIPA Guideline 4 dated 5 November 2018 recognises that “personal information” includes opinions and specifically lists the report of a referee about an applicant for public sector employment as an example of where an opinion could amount to “personal information” of the person supplying the opinion. Previous decisions of the NCAT have also found this to be the case (Applicants v Commissioner of Police  NSWCATAD 22; Veall v Department of Planning and Environment  NSWCATAD 47).
The NCAT rejected a submission by Mr O’Brien in relation to the referee who had not responded to Council’s consultation attempts that that referee’s lack of response meant that they did not consider the matter significant enough for comment and/or did not object to their opinions being released to him.
The NCAT was satisfied that the opinions of the referees were their “personal information” and that the Council had undertaken appropriate consultation with them.
The Decision of the Council was affirmed on this basis and Mr O’Brien was refused access to the three referee’s reports.
An application seeking review of a decision by the Information Commissioner cannot be lodged as the NCAT has no jurisdiction to determine such an application.
Public sector agencies will often be privy to information that is provided on a confidential basis. Maintaining the confidentiality of that information is likely to be at odds with the GIPA Act’s presumption in favour of disclosure of government information.
When that information is the subject of a GIPA Act access application, if access to the information is to be refused it is not enough for the information to be confidential. As this case reminds us, the test is whether disclosure of the information could reasonably be expected to prejudice the agency’s ability to obtain such information in the future.
The agency must be able to point to evidence that allows it to be comfortably satisfied that the information is confidential and that prejudice is reasonably expected to follow should information of this type be released.
You can read the NCAT’s judgment here.
If you have any questions about the GIPA Act, or wish to discuss this blog, please contact Michael Levy on 8235 9706, or Carlo Zoppo on 8235 9705.