Achieve Australia Ltd v Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2014-10-14

BACKGROUND 1In 2011 Elizabeth Seach complained ('the Complaint') to the NSW Ombudsman about activities of Achieve Australia Ltd ('Achieve'). The Ombudsman formed a steering committee which included representatives of Achieve and the Department of Family and Community Services ('the Department'). Nucleus Consulting ('Nucleus') was engaged to conduct an independent review of Achieve ('the Review'). The Review was funded by the Department and was monitored by the Ombudsman. Nucleus made a report dated October 2012 ('the Report'). Ms Seach was informed that the Ombudsman would not be able to make a copy of the Report available to her because of its need to abide by strict confidentiality provisions. 2Either the Ombudsman or Nucleus provided the Department with a copy of the draft and final Report. 3By application dated 28 June 2013 Ms Seach requested the Department, through its agency, Ageing, Disability and Home Care, to provide access to the Report as well as any drafts it held, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'). 4Pursuant to s.54(6) and (7) of the GIPA Act, by letter dated 22 July 2013, the Department notified Achieve that it had received an application to access the Report and that it was required to consult with Achieve as to whether there were objections that would comprise an overriding public interest against disclosure of the information. In a letter to the Department dated 16 August 2013 Achieve objected to the release of the Report to Ms Seach. 5After considering Achieve's objections, the Department informed Achieve of its decision to release the Report to Ms Seach. Achieve applied for an internal review of that decision and the internal review determined that the decision to release the Report should not be overturned. 6Achieve seeks review of that decision under s.80(d) and s.100 of the GIPA Act. It submitted that the Report is properly characterised as excluded information as had arisen through the exercise by the Ombudsman of its complaint handling and investigative functions, and consequently there was a conclusive presumption of an overriding public interest against disclosure of information: Schedule 2.2 and Clause 6 of Schedule 1 of the GIPA Act.

Relevant legislation 7Section 43(1) of the GIPA Act provides: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 8Schedule 2 of the GIPA Act relevantly provides: Schedule 2 Excluded information of particular agencies Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. ... Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 Complaints handling and investigative information ... The office of Ombudsman-complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). 9Clause 6 of Schedule 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information which that the agency has consented to the disclosure. Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

Issue 10Is the Report properly characterised as 'excluded information' under s.43(1) of the GIPA Act ?

Evidence 11Achieve relied on an affidavit by Anne Bryce, its CEO. Ms Seach also filed an affidavit. Each affidavit had a number of annexures. No other evidence was provided and some reliance had to be placed on information in the internal review because, notably, the Report was not provided to the Tribunal. Therefore, to the extent references are made to the content of the Report, this information is sourced from the internal review.

Consideration 12Achieve contended that the Report was information that relates to the Ombudsman's complaints handling and investigative function and is therefore 'excluded information' in accordance with Schedule 2.2 of the GIPA Act. The Department submitted that the Report does not fall within the scope of the Ombudsman's complaint handling or investigative functions. Consistent with that view, it did not consult the Office of the Ombudsman whether it consented to the disclosure of the information in accordance with cl.6(2) of Schedule 1 of the GIPA Act because it did not consider the information to be excluded information of the Office of the Ombudsman. 13Achieve referred to Cianfrano v NSW Ombudsman [2007] NSW ADT 273, where the Tribunal considered the predecessor of s.43 and Schedule 2 in relation to excluded information in the Freedom of Information Act 1989. There the Tribunal referred (at [15]) to Raethel v Director-General, Department of Education & Training [1999] NSWADT 108 where the President said (at [33]): 33 The expression 'functions relating to' these matters is a broad one. 14As I discussed in Miller v Director of Public Prosecutions [2012] NSWADT 38, the above decisions support the view that the expression "functions" referred to should be given a wide meaning. 15In 2011 Ms Seach complained to the Ombudsman about activities of Achieve. 16Ms Bryce referred in her affidavit to being informed by the Ombudsman of 'a complaint', presumably the Complaint, and being called to a meeting at the Ombudsman's office with representatives of the Ombudsman and the Department, which led to the creation of the steering committee. 17While the Ombudsman has wide powers of investigation, it need not rely upon a complaint being made in order to conduct an investigation: 13(1) Ombudsman Act 1974. On 20 March 2012 the Ombudsman wrote to Achieve, describing the matter as an 'own motion' complaint. 18On 19 June 2012 the Ombudsman informed Ms Seach to the effect that, following her complaint and discussions with the Department and Achieve, it had been agreed that there would be an 'external investigation and review' which it would monitor. 19The Terms of Reference ('TOR') for the Review were said to have been produced by the Ombudsman: see letter Bryce/Ombudsman dated 5 March 2012; although in June 2012, the methodology for the Review was being discussed by the Department, Achieve and the Ombudsman: see Ms Bryce's email to an officer of the Department dated 13 June 2012, which attaches a copy of an email from an officer of the Department to Ms Bryce dated 13 June 2012. 20The Report records that [The Department] in conjunction with the NSW Ombudsman, commissioned an independent review into Achieve Australia. The internal review however recorded that the Report states that it was prepared solely for the use of the Department. 21The Department noted that it, and not the Ombudsman, had paid for Nucleus to undertake the Review which led to the Report. Achieve submitted that the fact the Department paid for the Review and Report is a minor ancillary matter and part of an agreement reached in a spirit of co-operation with the Ombudsman exercising its complaints handling and investigative powers and was not determinative of whether the Report falls within 'excluded information' under s.43(1) of the GIPA Act. I agree with Achieve's submission that the fact that the Department paid for the Report is not determinative of whether the Report is excluded information. 22The Department also submitted that the Review and the consequent Report were not part of the Ombudsman's complaint handling and investigative functions because the Department took responsibility for reviewing and agreeing to the resulting action plan: letter Department to Ms Bryce dated 23 January 2013. These are functions of the Department when funding service providers such as Achieve, as set out at page 3 of the internal review decision under the heading "Responsible and effective Government". There it recorded: Under section 6 of the Disability Services Act 1993, the Minister is responsible for ensuring that designated services are provided and funded in conformity with the objects of the Act and the principles and applications in Schedule 1 of the Act. ADHC is responsible for ensuring this responsibility is met. ADHC discharges its responsibilities in relation to funded service providers by: a) requiring service providers as a term of their funding to comply with specified ADHC policies; b) requiring them to acquit the expenditure of funding; c) adopting disability standards in action designed to promote and protect the rights of service users of funded providers. 23Achieve contended that it would be surprising if, having adopted the cooperative approach to the handling and investigation of the Complaint by the Ombudsman, the Ombudsman then did not then rely on the Department, as the regulator, to participate in the Review and agree to the action plan arising from the Report. 24As discussed above, there was no evidence from the Ombudsman. The available evidence suggests to me that that once the investigation of the Complaint had been finalized, any ongoing implementation and liaison would be more likely to occur between the Department and Achieve, rather than between the Ombudsman and Achieve. Indeed, the letter of 23 January 2013, especially the unredacted concluding paragraphs are couched in terms which suggest closure from the Ombudsman's point of view. I agree with Achieve's submission that the Ombudsman's powers do not extend to implementation of recommendations and it must rely on agencies, or parliament, to action the outcome of its investigations. 25Both the Department and Achieve referred to the letter from the Office of the Ombudsman to Ms Bryce the Ombudsman dated 8 April 2013 which confirmed that the Review was independent and distinct from other reviews being conducted by the Ombudsman. I do not think that observation takes the matter any further, especially in view of the Ombudsman's power to undertake an investigation in the absence of a complaint. 26Achieve submitted that the letter plainly suggests a link between the Complaint about which there were meetings in 2012. Achieve referred Ms Bryce's Affidavit, where she wrote that she had been informed that the Ombudsman had received a complaint about Achieve; and she had been called to a meeting at the Ombudsman's office in early February 2012 when a schedule of concerns about Achieve was provided to her. Subsequently a steering committee, consisting of representatives from the Department and the Ombudsman's office and Achieve (including herself), was formed to work through the concerns. As a result, the Review, funded by the Department, was set up. Ms Bryce communicated with both the Ombudsman's office and the Department. 27Achieve also referred to a letter from the Ombudsman to Ms Seach dated 19 June 2012 which states, at [4]: Following receipt of your information, our office met with [the Department] and [Achieve] to discuss the information you provided. The outcome of these meetings resulted in an agreement that [Achieve] would be the subject of an external investigation and Review. Our office will monitor this Review which will broadly cover service practices, systems and governance at Achieve. 28In my view, the evidence supports a finding that it was no co-incidence that the Ombudsman invited Achieve to participate in a Review in the months following Ms Seach's complaint, notwithstanding that it chose to characterise the matter as an 'own motion' complaint in early correspondence with Achieve. It is likely that without Ms Seach's complaint the Ombudsman would not have undertaken the Review and therefore there would have been no Report. Further, in my view, the Ombudsman's decision to describe the matter as a 'own motion complaint' and to effectively outsource the investigation does not detract from the fact that the Ombudsman was 'handling' the Complaint. I accept that the Review was undertaken and the Report created in relation to the Ombudsman's handling and investigation of the Complaint. 29Even if the Complaint did not give rise to the Review (and Report) the Ombudsman exercised its powers of investigation which ultimately resulted in the Review and Report.

Was the Report also the Department's information? 30I accept that the Department paid for the Review and Report and that it had a significant role in determining the methodology for the Review. There is some inconsistency in the Report recording that it was commissioned by both the Department and the Ombudsman, and the reference in the internal review that the Report was prepared solely for the use of the Department. Having regard to the available evidence, it was clearly not a matter of the Ombudsman referring the Complaint onto the Department and then taking no further part in the Review process. I accept too that the Department had responsibility for reviewing and agreeing to the action plan submitted by Achieve following the Report. 31Recently, in Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, the Tribunal considered the Schedule 2 exclusion in relation to the complaint handling and investigative function of the Health Care Complaints Commission. SM Montgomery found that the relevant information had not been prepared for the sole purpose of the HCCC's complaint handling and investigative function, but nonetheless had been obtained in the exercise of the HCCC's investigative function and therefore amounted to 'excluded information'. 32Even if it could be said that the Report were prepared for the Department's purpose, as well as being prepared in connection with the Ombudsman's complaint handling and/or investigative functions, the information remains 'excluded': per Pertsinidis. 33As in the case of the applicant in Pertsinidis, I do not think Ms Seach's interest is merely one of curiosity. It is open to the Ombudsman to consent to the release of the Report to her, but the Respondent did not seek the Ombudsman's view. In any event, the Ombudsman appears to have already informed Ms Seach that it will not release the Report to her. There is no utility now in requiring the Respondent to seek the views of the Ombudsman. 34Having come to the view that the Report is excluded information under s.43(1) of the GIPA Act Ms Seach's GIPA application is not a valid access application pursuant to s.43(2) of the GIPA Act.

DECISION 35The decision under review is set aside and the Tribunal decides in substitution that Ms Seach's access application is not a valid access application pursuant to s.43(2) of the GIPA Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2014

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