A CITY of Newcastle investigation into a breach of privacy laws is under fire after it failed to identify a council staffer who forwarded confidential information to a prominent Newcastle businesswoman.
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It took less than 16 minutes from the time a council legal officer sent an email detailing a confidential freedom of information request to chief executive Jeremy Bath, which was also CC'd to five other staff, for a screenshot of the email to be forwarded outside the organisation.
According to an investigation report, there is "no evidence" to reveal who sent the screenshot to Meg Purser, whose public relations firm Purser Corporate Communication, was the subject of the information request.
After Ms Purser received the information she contacted Nathan Errington, who had made the application under freedom of information laws, known as the Government Information Public Access (GIPA) Act in NSW.
Mr Errington was seeking a copy of a $187,440 council contract awarded to Purser's and details about the fee structure.
Council's legal manager Emily Kolatchew was forced to apologise on behalf of City of Newcastle to Mr Errington last month for the "unauthorised disclosure".
Mr Errington, the former head of the Hamilton Chamber of Commerce, has been at loggerheads with the council over the handling of the city's business levy scheme and requested details about the contract awarded last year for Purser to help set up and administer a new business improvement association (BIA) scheme.
Despite requesting his identity remain confidential, Mr Errington said "someone deliberately passed the information to Ms Purser".
Release of personal details, including identities, without the authority of applicants applying for documents under freedom of information legislation is a breach under the Privacy and Personal Information Protection Act.
"The whole situation has been extremely disappointing," Mr Errington said.
"I followed their process, paid my fees and specifically requested that my identity remain confidential, so to find out my request had been forwarded onto multiple staff and then to the person my GIPA request related to was extremely concerning."
Council's spokeswoman said it was "ironic" that Mr Errington chose to go public about the breach as his identity was "disclosed to just a single person as part of the GIPA process".
She said the information he was seeking about the value of the contract was available on the council's website.
"We are unaware why Mr Errington chose to lodge the GIPA at all, and find the matter quite bizarre given his now desire to out himself publicly."
Mr Errington said he wanted a copy of the full contract to understand what work was involved and the fee structure.
He said he decided to speak publicly to show others how City of Newcastle dealt with GIPA applications.
After Mr Errington discovered his identity had been disclosed, he lodged a complaint about the breach of council protocol and privacy laws to City of Newcastle, which commissioned contractor Centium Group to investigate.
He has raised questions about the scope of the investigation and whether its terms of reference were too narrow.
In September, Centium's senior investigator Greg Waters reported that he was unable to identify the person who forwarded the screenshot to Ms Purser.
But the ratepayer-funded report provided to Mr Errington, after he lodged a GIPA request to access it, made no mention of interviewing the seven council staff who had access to the email.
A section of the 10-page report was redacted by the council, but the remaining report also makes no mention of interviewing Ms Purser, who may have been able to verify the identity of the person who sent her the information.
"There is no evidence available to me to show the identity of the person responsible ..." Mr Waters wrote.
"Council should accept and acknowledge that there was more likely than not an unauthorised disclosure of the GIPA request to council, contrary to Mr Errington's request for confidentiality and that this was inappropriate."
Mr Errington said he was stunned at the lack of detail in the report and questioned whether the parameters of the investigation were insufficient to identify the person who leaked the information.
He plans to refer the matter to the Information and Privacy Commission NSW.
"I was never interviewed by the external investigator and I asked, but never got an answer, about whether Ms Purser was interviewed, so I really do question the process," he said.
"It's hard enough to get information from council and I'm sure people will now think twice before lodging a request for public information."
Council's spokeswoman said it engaged Centium to conduct "an independent review" and relied on the firm's "expertise to determine the appropriate process for conducting the review".
She declined to answer questions about how much the investigation cost, how long it took and whether Ms Purser or the council staff were interviewed.
She also declined to answer why the investigator made no mention in the report of checking other council-supplied devices, including phones, after he determined it was a screenshot of the council email that was forwarded.
"As part of the review, email records were reviewed to determine whether City of Newcastle staff had emailed information to a third party and this is noted in the Centium report," she said.
Centium did not respond to a request for comment.
The woman unwittingly thrust into the centre of the dispute, Ms Purser, said she could not comment because it was "outside my contract terms".
Lawyer and respected freedom of information expert Peter Timmins said staff dealing with GIPAs should be aware of the requirement to protect an applicant's identity if requested.
"The situation does not give rise to much confidence on the part of other people who may tick the box on the council form requesting privacy," he said.
"The apology does confirm that something has gone wrong, but it's not much help to the person involved."
The ordeal began in May when Mr Errington ticked a box on the council's formal GIPA application form asking for anonymity.
He was in charge of the Hamilton business chamber when it and Newcastle Now were banned from the city's BIA scheme last year after Mr Bath alleged 'significant breaches' of their funding agreements with the council.
The council then restructured the BIA scheme, excluding Newcastle Now and the Hamilton Chamber of Commerce from applying for funding, and Purser Corporate Communication was appointed to help establish and administer the city's new scheme.
Mr Errington - who volunteered as president of the Hamilton business chamber for five years - said he wanted a copy of Purser's contract to understand what work was involved and how much the duties were worth.
An email outlining his request was sent from council's legal officer Sam Bright to Mr Bath on May 27 at 4.39pm and CC'd to five other staff.
This included corporate affairs boss Kathleen Hyland, media advisor Ben Johnson, community strategy head Ashlee Abbot, legal and governance officer Dawn Comber and privacy and information support officer Stella Sum.
Within 16 minutes of the email being sent, Mr Errington received a text message from Ms Purser that included a screenshot of the email from Mr Bright to Mr Bath.
"Happy to provide that direct - you only needed to ask," Ms Purser wrote to Mr Errington. "It is all public anyway - was included as part of the announcement of contract last year."
According to the Centium report, the original email contained a chain of communication that was limited to the seven council staff.
"Whilst the source of the screenshot document held by Mr Errington has not been identified, it is evident the original source was from the council...," the report states.
"I have searched the council email records and have not located any recipient of the original or subsequent emails outside the original recipients. This is consistent with my view that it was not the original message that was distributed, but a screenshot of that message on an unknown device."
The investigator said there was "no evidence" to identify the original source.
"It is possible that this was not the original message to council staff, and there was an intermediary person," the report reads.
"It is at least possible that the "screenshot" could have been a photograph of either a screen version of the document or a printer version of the email document, and if that is so, the range of options as to who was responsible is expanded significantly outside the original recipient group."
The investigator urged the council to "reinforce" to staff "responsibilities under the GIPA Act and the obligations of all to maintain confidentiality".
"I am satisfied that there is no other evidence that may be available or accessible to me, to assist with the resolution of this matter," Mr Waters wrote.
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