Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016)

REASONS FOR DECISION

Summary

1. An application was made to Blackall-Tambo Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the employment contracts of Council’s Manager of Works,¹ for the period 2008 to 2015.²

2. Council located two employment contracts for the Manager of Works (Contracts) for the relevant period.³ Council sought the views of the external review applicant on disclosure of information in the Contracts which Council was proposing to release. Council decided to grant access to most of the information in the Contracts, including the amounts representing the total remuneration package, contrary to the applicant’s objections.⁴

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision to grant access to the remuneration amounts.

4. For the reasons set out below, I affirm Council’s decision to disclose the remuneration amounts. I have found that the information is not exempt and nor would its disclosure, on balance, be contrary to the public interest under the RTI Act.

Background

5. Significant procedural steps relating to the application and external review are set out in the Appendix.

Reviewable decision

6. The decision under review is Council’s decision dated 16 October 2015 to disclose information, contrary to the applicant’s objections.

Evidence considered

7. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix).

Information in issue

8. The information in issue in this review consists of the amounts of the total remuneration package in each of the Contracts (Total Remuneration).⁵

Relevant law

Onus on external review

9. The participant in the external review application who opposes the disclosure decision has the onus of establishing that a decision not to disclose information is justified, or that the Information Commissioner should give a decision adverse to the person who wishes to be given access to the information.⁶

10. Therefore, in this review, the applicant bears the onus of establishing that access to the Total Remuneration can be refused under the provisions of the RTI Act.

Right of access to information

11. Under the RTI Act, access should be given to a document unless giving access would, on balance, be contrary to the public interest.⁷ The RTI Act sets out certain grounds on which access to information may be refused.⁸ It is Parliament’s intention that these grounds are to be interpreted narrowly.⁹

12. Access may be refused to exempt information¹⁰ and contrary to public interest information.¹¹ These grounds for refusal are examined below.

Exempt information – breach of confidence

13. Information will be exempt if its disclosure would found an action for breach of confidence.¹² The words of the section refer to an action based in equity for breach of an equitable obligation of confidence.¹³

14. For this exemption to apply, five cumulative elements must be established:¹⁴

a) information must be able to be specifically identified¹⁵

b) information must have the necessary quality of confidence and will not extend to information that is generally known, useless or trivial¹⁶

c) circumstances of the communication must create an equitable obligation of confidence¹⁷

d) disclosure to the access applicant must constitute an unauthorised use of the confidential information;¹⁸ and

e) disclosure would result in detriment to the applicant.¹⁹

Findings

15. I am satisfied that the Total Remuneration is specifically identifiable, thereby satisfying requirement a). I am also satisfied that the Total Remuneration is not commonly known and is not useless or trivial information.

16. Council’s Annual Reports,²⁰ published during the period in which the Contracts were in force, contain a disclosure statement regarding the remuneration paid to senior contract employees, as required by section 201 of the Local Government Act 2009 (Qld) (LG Act).²¹ However, these statements are only expressed in bands of $100,000 and do not disclose the specific salary figures, nor do they link the salary bands to the relevant senior employees, by name or title.

17. The information disclosed in the Annual Reports gives no more than a general guide as to the salary bands paid to Council’s senior management team. I do not consider this equates to the specific figures comprising the Total Remuneration being generally available. Therefore, I find that requirement b) is also satisfied.

18. For element c) to apply, the information must have been communicated and received on the basis of a mutual understanding of confidence. The understanding must have existed at the time of the communication and may be express or implied.²² This is usually the most difficult requirement to satisfy and requires that the ‘recipient should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.’²³

19. The applicant submitted that it was implied during his employment negotiations that the contents of the Contracts, including the remuneration schedules would be kept confidential.²⁴

20. Neither of the Contracts contains a confidentiality clause and they are not marked with a ‘confidential’ watermark or in any other way.²⁵ There is also no evidence of an express agreement between the Council and the applicant that the Contracts were negotiated on a confidential basis.

21. Other than the applicant’s assertions, there is no evidence available to OIC to suggest confidentiality was expressly sought or offered during negotiation of the Contracts. In addition, Council decided to disclose the majority of information in the Contracts, including the Total Remuneration, to the access applicant under the RTI Act. I consider that Council’s willingness to disclose the Contracts lends support to the view that Council did not consider the negotiations were conducted on a confidential basis.

22. On the basis of the above, I am satisfied that element c) cannot be established on the facts of this case. Therefore, I do not consider it is necessary to examine the remaining elements of the breach of confidence exemption.

23. Accordingly I find that there is no foundation for an equitable action for breach of confidence and therefore, the Total Remuneration is not exempt information under schedule 3, section 8 of the RTI Act.

Exempt information - serious act of harassment or intimidation

24. Schedule 3, section 10(1)(d) of the RTI Act provides that information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.²⁶ The RTI Act does not define ‘serious act of harassment or intimidation’ – therefore, the terms should be given their ordinary meaning. The Information Commissioner has previously indicated that:

• a serious act of harassment is an action that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences; and
• a serious act of intimidation is an action that induces fear or forces a person into some action by inducing fear or apprehension and that causes concern or apprehension or has undesired consequences.²⁷

25. Further, the Information Commissioner has noted that some degree of harassment or intimidation is contemplated as permissible before the right to access documents is removed.²⁸ In Sheridan, the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that, depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an act could reasonably be expected to occur. These factors may include, but are not limited to:

• past conduct or a pattern of previous conduct
• the nature of the relevant matter in issue
• the nature of the relationship between the parties and/or third parties; and
• relevant contextual and/or cultural factors.²⁹

26. The Information Commissioner has previously found that the following two requirements must be present for it to apply:

• an apprehended serious act of harassment or intimidation; and
• a reasonable basis for expecting that that act would occur if the Information in Issue were disclosed.³⁰

Findings

27. The applicant submitted to OIC that he has been the subject of bullying and harassment in connection with this matter and was ‘forced out’ of his position at Council.³¹

28. OIC invited the applicant to provide further submissions about the allegations and in particular, to explain how he considered disclosing the Total Remuneration would be likely to lead to a serious act of harassment or intimidation.³² The applicant elected not to provide OIC with any further submissions on this point.

29. The applicant has not provided specific details of the past alleged conduct and there is also no indication that complaints have been made to the police to corroborate the allegations. In the circumstances of this case, I am satisfied that there is no evidence available to OIC to establish a sufficient connection between disclosure of the Total Remuneration and the likelihood of a serious act of harassment or intimidation.

30. In the absence of any further evidence to support the applicant’s allegations, I am unable to find that the Total Remuneration is exempt under schedule 3, section 10(1)(d) of the RTI Act.

Contrary to the public interest

31. Under the RTI Act, access to information may be refused if its disclosure would, on balance, be contrary to the public interest.³³

32. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.

33. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest³⁴ and explains the steps that a decision-maker must take³⁵ in deciding the public interest as follows:

(i) identify any irrelevant factors and disregard them
(ii) identify relevant public interest factors favouring disclosure and nondisclosure
(iii) balance the relevant factors favouring disclosure and nondisclosure; and
(iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.

Findings

(i) Irrelevant factors

34. The applicant has questioned the access applicant’s alleged motivations for seeking access to the Contracts.³⁶

35. The RTI Act provides that in deciding the balance of the public interest, it is irrelevant that disclosure of the information could reasonably be expected to result in mischievous conduct by the access applicant.³⁷ I also consider that the access applicant’s reasons for seeking information under the RTI Act are irrelevant to the public interest test.³⁸

36. In accordance with the RTI Act, I have not taken the applicant’s submissions on this issue into account in making this decision. I do not consider any other irrelevant factors arise on the facts of this case.

(ii) Factors favouring disclosure

37. The RTI Act recognises that the public interest will favour disclosure of information where disclosure could reasonably be expected to

• promote open discussion of public affairs and enhance the government’s accountability;³⁹ and
• ensure effective oversight of expenditure of public funds.⁴⁰

38. For the reasons set out below, I find that the above factors apply to the Total Remuneration.

39. The Information Commissioner has previously held that there is a general public interest in seeing how taxpayers’ money is spent and the public interest is sufficient to justify disclosure of the gross income payable from the public purse to the holder of a public office.⁴¹

40. Previous decisions of the Information Commissioner and in other jurisdictions have also established that the public interest is served by disclosing the total remuneration package of a public officer but not the amounts of the individual benefits/bonuses which make up the package.⁴² The Information Commissioner has also recognised that the public interest is even stronger in the case of senior officers who have responsibility for ‘devising and/or implementing strategic and operational plans, and delivering key performance outcomes’.⁴³

41. During the period in which the Contracts were in force, the Manager of Works role formed part of the senior management team⁴⁴ and the appointee was required to contribute to decisions affecting the Council and development of Council policy.⁴⁵

42. Given the seniority of the Manager of Works role and its significant responsibilities, I consider the role is equivalent to that of a senior executive in a public sector agency and that therefore, the public interest in disclosing the total salary package attached to the Manager of Works role is very strong.

43. I have considered whether the information published in the Annual Reports about senior management remuneration is sufficient to discharge the public interest factors relating to accountability, transparency and effective oversight of public funds. However, the published information provides only a very general guide to the remuneration of senior management and does not link specific salaries to particular roles.⁴⁶ While the publication of this information is one of Council’s accountability measures, I consider the information is of such a limited nature that it does not discharge the public interest factors at paragraph 37 above. I therefore find that the weight of those factors is only marginally reduced by the information published in the Annual Reports.

44. For the reasons set out above, I afford significant weight to the factors favouring disclosure of the Total Remuneration.

(iii) Factors favouring nondisclosure

45. The Applicant submitted that:

• the negotiation of the Contracts, including the Total Remuneration, was in confidence
• disclosure would constitute a breach of the applicant’s privacy; and
• release of the Total Remuneration would be in breach of the LG Act.⁴⁷

46. The RTI Act recognises that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to:

a) cause a public interest harm if the information consists of information of a confidential nature that was communicated in confidence and disclosure could reasonably be expected to prejudice the future supply of information of this type⁴⁸
b) prejudice the protection of an individual’s right to privacy⁴⁹
c) cause a public interest harm if it would disclose personal information of a person, whether living or dead;⁵⁰ and
d) where disclosure of the information is prohibited by an Act.⁵¹

47. Given my findings at paragraphs 20-22 above in relation to the breach of confidence exemption, I am satisfied that the Total Remuneration was not communicated in confidence and therefore, I find that the public interest factor at a) in paragraph 46 above, does not apply in this case.

48. With respect to the factors at b) and c) above, I accept that the Total Remuneration comprises the applicant’s personal information.⁵² I also consider that information about a person’s salary reflects their financial situation and therefore, the Total Remuneration attracts a certain level of privacy. However, I also acknowledge that the Total Remuneration has a dual character in that it also reflects the cost of having the duties of the relevant position performed for the benefit of the public.⁵³

49. In Stewart, the Information Commissioner accepted that the public interest in protecting a person’s income information must be balanced against the public interest in transparency in expenditure of public funds and in relation to gross salary of a public servant, the latter public interest is deserving of greater weight.⁵⁴

50. As set out above, the Total Remuneration represents the gross salary package of the Manager of Works during the Contract periods. The individual amounts of each component of the package, net income, superannuation and salary packaging information, are not revealed by the Total Remuneration.⁵⁵ As the Information Commissioner recognised in Stewart, those individual figures are of a more sensitive, personal nature.⁵⁶ On this basis, I find that the public interest harm in disclosing the Total Remuneration is only moderate in this case.

51. In considering the privacy which attaches to a senior Council employee’s total remuneration package, I am satisfied that it does not sit at the high end of the privacy spectrum along with family, medical and relationship information. However, as the applicant is no longer a Council employee, I find that his privacy is somewhat higher than that of a serving public officer. I have also taken into account the publication requirements discussed above at paragraph 16 and the fact that the Total Remuneration represents the salary paid, from public funds, to the applicant during his period of public service. On the basis of the above, I afford the factor at c) above, moderate weight in favour of nondisclosure.

52. The applicant submitted that disclosing the Total Remuneration would breach the LG Act.⁵⁷ I have considered whether this raises the factor favouring nondisclosure relating to disclosure prohibited by an Act.⁵⁸

53. Section 201(4) of the LG Act states:

(4) To remove any doubt, it is declared that nothing in this section requires the exact salary of any employee in senior management to be separately stated in the annual report.

54. Having carefully considered the wording of section 201 of the LG Act, I am satisfied that it does not prohibit the disclosure of the Total Remuneration. The section clarifies that there is no mandatory requirement to publish exact salaries in a local government annual report. However, there is nothing in the language of the section which prevents or prohibits publication. For this reason, I do not consider the factor at paragraph 52 above applies to the Total Remuneration.

(iv) Balancing the public interest

55. The RTI Act sets out a pro-disclosure bias in deciding access to documents.⁵⁹ In this case, there are several additional factors favouring disclosure of the Total Remuneration in terms of enhancing local government transparency and effective oversight of public funds. In my view, these factors are deserving of significant weight due to the seniority and responsibilities of the Manager of Works role. I have marginally reduced the weight of these factors on the basis that the information published in Council’s Annual Reports provides a certain level of transparency in Council’s remuneration expenses.

56. I acknowledge that disclosing the Total Remuneration would reveal a component of the applicant’s personal information. However, as the information relates to a time when the applicant was a public officer, being paid by public funds, I consider the harm arising out of disclosure and any resulting infringement of the applicant’s privacy is only moderate in this case.

57. On balance, I find that the factors favouring disclosure outweigh the factors favouring nondisclosure in this case. Accordingly, I find that disclosure of the Total Remuneration would not, on balance, be contrary in the public interest, and therefore, access may not be refused under section 47(3)(b) of the RTI Act.

Conclusion

58. For the reasons set out above, I find that the applicant has not discharged the onus to justify a decision refusing access to the Total Remuneration as its disclosure:

• would not found an action for breach of confidence⁶⁰
• could not reasonably be expected to result in the applicant being subjected to a serious act of harassment or intimidation⁶¹; and
• would not, on balance, be contrary to the public interest.⁶²

DECISION

59. I affirm the decision of Council dated 16 October 2015 to grant access to the Total Remuneration.

60. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

________________________
K Shepherd
Assistant Information Commissioner

Date: 15 April 2016

APPENDIX

Significant procedural steps

1 At the date of the access application, this role was occupied by the external review applicant.
2 The access application also requested access to the employment contracts of Council’s Chief Executive Officer for the same period. A separate external review was conducted with respect to disclosure of that information and was resolved informally between the parties. Accordingly, this review relates solely to information in the employment contracts of the Manager of Works.
3 Dated 31 January 2011 and 4 October 2013.
4 Council refused access to the applicant’s residential address and individual components of the salary package under section 47(3)(b) of the RTI Act. The access applicant did not seek external review of Council’s decision to refuse access to that information and therefore, that aspect of Council’s decision is not the subject of this external review.
5 There are three separate figures. In the Contract dated 31 January 2011, the figure appears on page 10. In the Contract dated 4 October 2013, the figures appear on page 11 (Schedule B) and on page 12 (Schedule C). During the external review, the applicant advised OIC that he did not object to disclosure of the remaining information in the Contracts to which Council decided to grant access. Accordingly, that does not form part of the information in issue in this review.
6 Section 87(2) of the RTI Act.
7 Section 44(1) of the RTI Act.  This is referred to as the ‘pro-disclosure bias’ in deciding access to documents.
8 Section 47(3) of the RTI Act.
9 Section 47(2)(a) of the RTI Act.
10 Section 47(3)(a) and 48 and schedule 3 of the RTI Act.
11 Section 47(3)(b) and 49 and schedule 4 of the RTI Act.
12 Section 48 and schedule 3, section 8 of the RTI Act.
13 TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) at [12] (TSO08G).
14 See the Information Commissioner’s analysis in B and Brisbane North Regional Health Authority (1994) 1 QAR 279 (B and BNRHA), applying section 46(1)(a), the equivalent exemption under the repealed Freedom of Information Act 1992 (Qld) (FOI Act). For a restatement of the criteria in the context of the RTI Act, see TSO08G at [13].
15 B and BNRHA at [60] to [63].
16 B and BNRHA at [64]
17 B and BNRHA at [76].
18 B and BNRHA at [103] to [106].
19 B and BNRNA at [111] citing Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 (Lord Keith of Kinkel at 256).
20 Available at http://www.btrc.qld.gov.au/annual-reports
21 Section 201 of the LG Act requires a local government’s annual report to state the total of all remuneration packages payable to senior management and the number of employees in senior management being paid each band of remuneration (stated to be an increment of $100,000).
22 B and BNRHA at [90].
23 B and BNRHA at [76].
24 External review application. The applicant also relied on letters of objection dated 25 September 2015 and 2 October 2015 sent during the consultation process.
25 This is however, only one factor to be evaluated in the circumstances of a case and is not determinative. See B and BNRHA at [91].
26 Subject to the exceptions in schedule 3, section 10(2) of the RTI Act.
27 Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) [13], applying Sheridan and South Burnett Regional Council (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at [199]-[200]. The decision in Sheridan concerned section 42(1)(ca) of the now repealed FOI Act. Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in Sheridan are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.
28 Sheridan at [187].
29 Sheridan at [193].
30 Mathews and The University of Queensland (Unreported, Queensland Information Commissioner, 21 September 2012) at [27].
31 Applicant’s submissions to OIC dated 20 February 2016.
32 Letter from OIC to the applicant dated 26 February 2016.
33 Sections 47(3)(b) and 49 of the RTI Act.
34 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case.
35 Section 49(3) of the RTI Act.
36 Applicant’s external review application dated 19 October 2015.
37 Schedule 4, part 1, item 3 of the RTI Act.
38 In State of Qld v Albietz, Information Commissioner (Qld) & Anor [1996] 1 Qd R 215, de Jersey J noted at 219 ‘… the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’.
39 Schedule 4, part 2, item 1 of the RTI Act.
40 Schedule 4, part 2, item 4 of the RTI Act.
41 Stewart and Department of Transport (1993) 1 QAR 227 at 257-258 (Stewart), Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council; Hansen; Covolo, Cross (Third Parties) (2004) 6 QAR 328 at [26] (Lower Burdekin) and Sheridan and South Burnett Regional Council, Ors (Unreported, Queensland Information Commissioner, 23 June 2008) at [52].
42 Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 (2 January 2001) at [70]-[71] (Re NTEIU) and Asher v Department of State & Regional Development [2002] VCAT 609 (6 August 2002) (Asher).
43 Lower Burdekin at [27].
44 2008/2009 Annual Report (p.8), 2009/2010 Annual Report (p.17), 2010/2011 Annual Report (p.24), 2011/2012 Annual Report (p.18), 2012/2013, 2013/2014 and 2014/2015 Annual Reports (p.15), available at http://www.btrc.qld.gov.au/annual-reports. The Position Description for the Manager of Works role (Schedule A to the Contracts) states that the Manager of Works is to participate as a member of the Executive Management Team. Council decided to grant access to the Position Description and the external review applicant does not object to its disclosure.
45 As stated in the Position Description.
46 See paragraph 16 above.
47 Applicant’s external review application dated 19 October 2015.
48 Schedule 4, part 4, item 8(1) of the RTI Act.
49 Schedule 4, part 3, item 3 of the RTI Act.
50 Schedule 4, part 4, item 6(1) of the RTI Act.
51 Schedule 4, part 3, item 22 of the RTI Act.
52 Within the meaning of section 12 of the Information Privacy Act 2009 (Qld). This is consistent with the Information Commissioner’s conclusion in Stewart at paragraph [80] that information about a person’s income is their ‘personal affairs’.
53 In Asher disclosure of the total remuneration package of senior public servants was considered reasonable, despite it being considered the officer’s personal affairs.
54 Stewart at [80]. See also Forbes and Department of Premier and Cabinet (1993) 6 VAR 53 at 60-61 (Forbes) cited in Re NTEIU at [56].
55 As set out at note 4 above, Council decided to refuse access to that information in the Contracts and the access applicant did not seek external review of that decision.  Therefore, that information is not in issue in this review.
56 At [80] and Forbes at 60-61.
57 Applicant’s external review application dated 19 October 2015.
58 Schedule 4, part 3, item 22 of the RTI Act.
59 Section 44 of the RTI Act.
60 Sections 47(3)(a), 48 and schedule 3, section 8 of the RTI Act.
61 Sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act.
62 Sections 47(3)(b) and 49 of the RTI Act.