TCD and Department of Primary Industries
(1995 S0072, 19 December 2001)
When the applicant was formerly employed by the Department of Primary Industries (the DPI), a complaint of sexual harassment was made against him by a female employee.
After an internal investigation, the Director-General informed the applicant that the allegations against him had not been substantiated and that no action would be taken.
The applicant sought access, under the FOI Act, to all documents relating to him in the DPI's possession, and the DPI refused access to information collected by the investigators of the complaint of sexual harassment against the applicant.
The DPI contended that the bulk of the matter in issue was exempt under s.46(1) of the FOI Act (as matter communicated in confidence) and/or under s.40(c) because its disclosure could reasonably be expected to prejudice the DPI's ability to manage both its grievance processes and the staff employed at the applicant's former workplace. However, because the applicant had been an employee of the DPI at the time of the complaint and investigation, he had a statutory entitlement (under s.46(1) of the Public Service Management and Employment Regulation 1988 Qld) to be shown any document containing information about his work performance which was adverse to his interests. This would have precluded the formation of any understanding or obligation of confidence in respect of information that the DPI had a statutory obligation to disclose to the applicant.
The Deputy Information Commissioner considered the proper construction of s.46 of the PSME Regulation, and decided that only a small amount of the matter in issue concerned the applicant's work performance. The Deputy Information Commissioner found that the matter in issue which concerned the applicant's work performance, and which could be considered adverse to the applicant, did not qualify for exemption from disclosure, but that the balance of the matter in issue did qualify for exemption under one or more of s.44(1), s.40(c) or s.46(1)(a) of the FOI Act. The Deputy Information Commissioner found that information was provided by third parties to the investigators pursuant to a conditional understanding of confidence, and that, because the allegations against the applicant were not substantiated and no action was taken against him, the conditions that would have permitted disclosure to the applicant were not triggered. The Deputy Information Commissioner also found that a number of documents qualified for exemption from disclosure under s.43(1) of the FOI Act, as they contained legal advice from, or requests for legal advice to, the DPI's legal branch.