Posted on April 26, 2012 by Frances Tse

ADT allows release of code of conduct investigation report

Further to our post on Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Administrative Decisions Tribunal has recently handed down a judgement on the release of a local government investigation report into allegations of misconduct and maladministration.

This case is of interest to Councils because it provides further insight into the Tribunal’s consideration and views on the various public interest considerations against disclosure in s14 of the Government Information (Public Access) Act 2009.

Background

In McKinnon v Blacktown City Council [2012] NSWADT 44, Mr McKinnon, a journalist sought access to an investigation report conducted by an external consultant on allegations of maladministration and misconduct in respect of the Council’s purchase of Chinese interpreter services.

The report was marked confidential and treated as such to the extent that only a revised and edited version of it was provided to the elected body of the Council when it was reported at a confidential session.

The Council determined to refuse access to the report and these proceedings arise from an application for a review of that determination.

Public interest considerations against disclosure

The Council refused access on the basis that there was an overriding public interest against disclosure, taking into account that the disclosure of the information could reasonably be expected to have one or more of the following effects:

• prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (Item 1(d)),
• found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (Item 1(g)),
• reveal an individuals personal information (Item 3(a)),
• diminish the competitive commercial value of any information to any person (Item 4(c)), and
• prejudice any person’s legitimate business, commercial, professional or financial interests (Item 4(d)).

Of particular interest, is the Tribunal’s consideration of Items 1(d), 1(g) and 4(c) and 4(d).

Items 1(d) and 1(g)

Like in Hurst, the Council in this case submitted that it was the Council’s practice to treat code of conduct investigations as confidential. Additionally, the Council considered that if the report was disclosed, it was reasonable to assume that officers would be reluctant to report misconduct or inappropriate behaviour in the future.

The Council had marked and treated the report as confidential, stored it in a secure location, limited the number of officers who could access the report and only provided an edited version of it to Councillors.

Notwithstanding the above, the Tribunal’s view was consistent with that in Hurst and the Tribunal held that:

• whilst the report was treated as confidential, the evidence indicated that this occurred as a matter of convention, rather than as a result of any statutory requirement,
• the Council’s code of conduct did not establish a regime of confidentiality,
• the Council officer who carried out code of conduct investigations did not have a reasonable basis for holding that other officers would withhold information for fear of reprisal as he had no experience of anyone doing so,
• as all the investigations that the probity officer was involved in had been kept confidential, he had no experience of investigations where confidentiality was not  maintained, and therefore his opinion was not based on a rational, underlying factual basis.

It appears that the combined effect of this decision and the decision in Hurst is that unless councils have had  actual adverse experience in a code of conduct investigation as a result of the investigation not being confidential, it would be difficult to rely on this public interest consideration against disclosure in refusing access to investigation reports.

Additionally, such reports which Council may  expect to be confidential may be subject to disclosure under the GIPA Act.

Item 4(c) – meaning of ‘competitive commercial value’

The Council submitted that the report contained commercial information including the contractor’s hourly rates, the Council’s yearly expenditure on translation services and budgets for future services and disclosing this information would diminish the competitive commercial value of the information.

The Tribunal did not agree. It was of the view that ‘competitive commercial value’ means information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services.

It accepted the Information Commissioner’s submissions that ‘commercial value’ means:

• whether the information is valuable for the purposes of carrying on the commercial activity,
• whether a genuine arms-length buyer is prepared to pay to obtain the information, and
• whether the information is capable of being described as commercial in character.

Additionally, it accepted that commercial value is affected by passage of time and whether the information is publicly available.

The Tribunal therefore held that disclosure of the report would not diminish competitive commercial value because:

• the commercial information in the report was old (it related to expenditures in the years up to and including 2010),
• the services were not purchased in a competitive context, and
• since the completion of the report, the Council had adopted a new method of purchasing the services, being the calling of expressions of interest for interpreter services and putting in place a number of competitive panels from which it purchased those services.

Item 4(d)

For the same reasons as above, the Tribunal also found that the release of the report could not reasonably be expected to prejudice any person’s legitimate business, commercial, professional or financial interests.

However, the Tribunal did accept that before the new method of purchasing the services was put in place, the commercial information would have been sensitive and disclosure could have prejudiced the legitimate business, commercial, professional or financial interests of the Council or the contractor.

The Tribunal’s reasons for holding that disclosure of the particular commercial information in the report would not diminish competitive commercial value and would not prejudice a person’s legitimate business, commercial, professional or financial interests is useful in understanding the types of commercial information that would perhaps be expected to be confidential but which could be subject to disclosure under the GIPA Act.