Employer’s right to deny access to workplace investigation documents

  • 22 May 2017
Key Points
  • Decision by Australian Information Commissioner confirmed employer had a right to deny an employee access to workplace investigation information in the circumstances.
  • Denial of disclosure permitted when access would have a substantial adverse effect on the management or assessment of personnel.
  • Commissioner noted public interest in protecting the integrity and robustness of complaints and similar processes in other government agencies weighed in.

A recent decision made by the Australian Information Commissioner, Timothy Pilgrim, has found that a government agency had the right to deny an employee access to workplace investigation documents.

In the case, ‘LC’ and Australia Post (Freedom of Information) [2017] AlCmr 31 (5 April 2017), ‘LC’ was a former employee of Australia Post. LC was told by an HR practitioner that he was the subject of “derogatory” comments by two managers, who were now facing discipline as a result. LC made a request for access to information relating to the investigation, which was initially denied.

Subsequently, Australia Post reviewed its decision and allowed LC access to four documents related to the investigation, however LC requested access to further documents including email chains, witness statements and a number of other documents.

Australia Post denied this further request based on the exemption outlined in Section 47E(c) of the Freedom of Information Act 1982 (Cth) (FOI Act), under the public interest conditional exemptions. This specific exemption allows exemption from disclosure when allowing disclosure would or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

The Commissioner agreed with Australia Post, stating “the complaints made by employees of an agency and any consequential disciplinary proceedings relate to the management and assessment of personnel”. Further, the Commissioner noted three relevant factors against disclosure, being that doing so could be reasonably expected to:

  • prejudice the protection of an individual’s right to privacy;
  • prejudice an agency’s ability to obtain similar information in the future; and
  • prejudice the management function of an agency.

The Commissioner continued that “[in] particular, I consider the public interest in this case lies with protecting the integrity and robustness of Australia Post’s code of conduct complaints processes and similar processes in other government agencies.” The Commissioner decided that giving access to the documents at this time would, on balance, be contrary to public interest.

This case reinforces that government agencies should exercise caution when deciding whether to disclose sensitive information. When deciding whether to disclose certain information, agencies should carefully balance the public interest, including the effect that the disclosure might have on their ability to manage and assess personnel, as well as the other exemptions noted in Section 47E of the FOI Act.

Each situation will depend upon its particular facts so if you need any assistance in determining whether or not to disclose information during an investigation process we are here to help.

Post by Jack Guthrie, John Kell and Sarah Jones

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