Posted on February 15, 2012 by

The Administrative Decisions Tribunal considers GIPA…

On 22 December 2011, Judicial Member Molony delivered his decision in the case of Hurst v Wagga Wagga City Council [2011] NSWADT 307 concerning review of a decision of the Wagga Wagga City Council under the Government Information (Public Access) Act 2009 (GIPA Act).

The case provides some interesting practical observations about how the GIPA Act is to be applied to information generated as a result of code of conduct enquiries which a Council may ordinarily assume or attempt to keep confidential.

Background

A code of conduct complaint was made by Mr Hurst against two Council officers alleging various kinds of official misconduct.

The complaint was dismissed by the General Manager of the Council following an internal audit.

Mr Hurst then sought access to various documents relating to the assessment of the complaint, including an internal audit report and the written statements of the Council officers against whom the complaint had been made.

The complaint itself had been reported by various news outlets including in the Sydney Morning Herald so a deal of information about the content of the allegations was already in the public domain.

Decision under review

The Council refused access to the two written officer statements.

The Council agreed to allow Mr Hurst limited access to an electronic version of the internal audit statement, under supervision. Certain passages detailing ‘personal information’ were deleted.

The role of the Tribunal

Judicial Member Molony explained the Tribunal’s task as being one ‘to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined.’

The GIPA Act places the onus of proof on the Council to show that its decision is justified. The Council is therefore required to ‘establish that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.’

The Role of the Information Commissioner

The Tribunal held that the role of the Information Commissioner is not that of a party, nor one which ‘descends to merits arguments and contentions.’

Accordingly, the Information Commissioner could not present evidence but was limited to assisting ‘the Tribunal with respect to the applicable law, relevant polices and guidelines, and on issues of interpretation of the Act.’

Access to the officer statements

Judicial Member Molony concluded that Mr Hurst should be given access to the officer statements, subject to the deletion of allegations disparaging of the two staff members.

The Council relied on the following public interest considerations against disclosure:

1. Disclosure could prejudice the effective exercise by an agency of the agency’s functions.
2. Disclosure could 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).
3. Disclosure could reveal an individual’s personal information.
4. Disclosure could reveal false or unsubstantiated allegations about a person that are defamatory.

Prejudice the effective exercise by an agency of the agency’s functions

The Tribunal held that the Council had not established that release of the officer statements could reasonably be expected to prejudice the effective exercise by the agency of its functions.

While it was accepted that it was the practice of Council to keep staff disclosures to Code of Conduct investigations confidential, the Tribunal rejected the Council’s argument that release of the officer statements would impair the effectiveness of future Code of Conduct investigations on the basis that  it would discourage the future candid and voluntary provision of information. The court was not convinced that there was evidence to support the inference even though the Council’s practice was to keep such matters confidential.

The Tribunal referred to the Council’s Code of Conduct, which imposes obligations on the Council’s employees to be ethical, honest and accountable. The Tribunal also noted that there was no express confidentiality provision within the Code of Conduct.

Further, the Tribunal held that the provisions of s 10A of the Local Government Act 1993 which enable a council to close its meeting to the public where the discussion concerns “personnel matters concerning particular individuals (other than councillors)” does not create a further or additional public interest consideration against disclosure under the GIPA Act.

Prejudice to the effective exercise by an agency/ to the conduct of any audit, test, investigation or review etc

Judicial Member Molony concluded that the Council had also not established that disclosure of the officer statements could reasonably be expected to prejudice the 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. The internal audit had already been completed and the effectiveness of future investigation or audits was not at issue in this case.

Personal information/false or unsubstantiated allegations about a person that are defamatory

Judicial Member Molony concluded that the following public interest considerations against disclosure had some application to the officer statements:

• disclosure of the information which could reasonably be expected to reveal an individual’s personal information,
• disclosure which could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.

In relation to the first of these considerations, the Tribunal held that the officer statements contained information regarding the council officer’s personal life which should be edited from any final version of the document released to Mr Hurst.

The second of the considerations carried more weight.  The officer statements provided more detail of the allegations than had previously been publicly revealed by the newspaper articles and media releases relied on by Mr Hurst. This could be managed by the deletion of the offending information prior to release.

Internal audit report

The Tribunal concluded that the public interest considerations in favour of disclosure of the internal audit report outweighed the public interest considerations against disclosure.

The only relevant consideration against disclosure was that it could reveal  personal information in particular the remuneration of the two Council officers the subject of the conduct complaint, and that of other directors of the Council.

The council argued that clause 217(1)(c) of the Local Government (General) Regulation 2005 indicated that  the public policy as there reflected is not to require that remuneration paid to individual senior staff members be disclosed in the Annual Report but rather requires the publication only of combined remuneration information relating to senior staff.

The Tribunal held, however, that s 14(2) of the GIPA Act limits the public interest considerations against disclosure  and provides that they “are the only other considerations that may be taken into account under this Act.”  As such, cl 217(1)(c) could not create an additional public interest consideration against disclosure.