No need for anonymity or suggestion boxes: NCAT finds complaint records are protected under the GIPA Act

  • 29 Jul 2019
Key Point
  • Information obtained during the preliminary assessment of a complaint in circumstances where there was an assurance of confidentiality may be protected under the GIPA Act. NCAT finds that the disclosure of such information would have a detrimental impact on the administering entity’s complaint handling function.
  • Lack of transparency in complaint handling processes and a failure to give the complainant an opportunity to respond is not, of itself, a public interest consideration in favour of disclosure under the GIPA Act.


Background

In the matter of DQE v University of Sydney [2019] NSWCATAD 132, DQE (the Applicant) filed a complaint with the University of Sydney (Respondent) alleging he was bullied by an employee of the Respondent referred to as Mr A. The Respondent undertook a preliminary assessment of the complaint and found that there was insufficient evidence to support the allegations. The Applicant was informed of the outcome of the preliminary assessment and following that sought access to all records held by the Respondent in connection with the complaint under the Government Information (Public Access) Act 2009 (Cth) (GIPA Act).

The Respondent determined the application and granted the Applicant access to some documents (wholly or in part). Access to the entirety of numerous documents was withheld on the grounds of there being an overriding public interest against disclosure.

On 7 September 2018, the Applicant applied to the NSW Civil and Administrative Tribunal (NCAT) for external review. At the hearing the Applicant pressed for access to the information, sought broad non-publication orders and alleged he was prejudiced because he was not given adequate time to prepare, present his submissions or cross examine a key witness.

NCAT made non-publication orders in respect of:

a)    the name of the person against whom the Applicant had lodged his complaint;

b)    the name of the Applicant under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) but was not otherwise satisfied that the Applicant had suffered any prejudice.

Public interest considerations against disclosure

The Respondent advanced that the records could not be released because:

  • they comprised information supplied to the Respondent in confidence under its ‘bullying, harassment and discrimination resolution procedures’ and its ‘resolution of complaints policy’
  • they contained the personal information of a third party the disclosure of which would contravene information privacy principles under the Privacy and Personal Information Protection Act 1998 (NSW);
  • disclosure would have a detrimental impact on the Respondent’s ability to exercise its complaint handling function;
  • disclosure could reasonably be expected to prejudice the supply of confidential information to the Respondent in the future; and
  • disclosure could expose the Respondent to an action for breach of confidence.

In support of its argument, the Respondent presented evidence that:

  • employees, students and members of the public are often reluctant to participate in investigations and preliminary assessments unless they receive assurances that their participation and comments will be kept confidential;
  • the requirement of confidentiality throughout the complaint handling process provides a level of comfort and encourages people to express their views and provide information more openly;
  • employees have in the past refused to participate in an investigation or preliminary assessment without first being assured that the process is confidential.

Public interest considerations in favour of disclosure

The Applicant contended that:

  • there was a lack of transparency in the complaints handling process because the Respondent failed to give him an opportunity to respond to various adverse and/or contrary pieces of personal information about him which was collected during the preliminary assessment; and
  • disclosure of the information was necessary to enable the Applicant to seek amendment of his personal information which was inaccurate, out of date, or incomplete and held by the Respondent.

Determination

NCAT agreed with the grounds advanced by the Respondent. It did not accept the Applicant’s contentions on the basis that they are not public interest considerations in favour of disclosure under the GIPA Act and merely reflect the Applicant’s private interests. For this reason, NCAT reaffirmed the Respondent’s decision.

Key takeaway

Information forming part of a complaint will generally be protected under the GIPA Act on the basis that disclosure of such information could reasonably be expected to prejudice the administering entity’s complaint handling function and its ability to obtain such information in the future.

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