FDC v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2020-09-14

Principal judgment Parties: FDC (Applicant) Department of Education (Respondent) Representation: Applicant (self-represented) Respondent (self-represented) File Number(s): 2019/00390023 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

(1) The applicant is to be identified by the pseudonym FDC;

(2) The identity of the applicant is not to be disclosed by the respondent or any other person and she is to be referred to as FDC;

(3) Publication or disclosure of information identifying the applicant or her child the subject of the Reasons published on 13 September 2021 is prohibited.

Introduction

The applicant sought access pursuant to the Government Information (Public Access) Act 2009 ("GIPA Act") to particular counselling and school records relating to her child. The respondent identified 852 pages containing information responsive to the applicant's access application and provided access to most, but not all, of that information.
Following case management by the Tribunal, including the remission of the decision to the respondent for further consideration, the area of dispute between the parties has been narrowed to whether the applicant should have access to the information redacted by the respondent from nine of the 852 pages.

Jurisdiction and the Tribunal's task

The respondent's decision to refuse to provide access to some of the information sought by the applicant in her access application (as amended) is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") and s 9 of the Administrative Decisions Review Act 1997 ("ADR Act").
The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether access to the withheld information should be provided, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

Material before the Tribunal

The material before the Tribunal includes: 1. the access application, as amended; 2. the decisions made by the respondent on the access application; 3. a Schedule of Documents reflecting the respondent's position after the last of the respondent's decisions on the access application; 4. a statement of the applicant dated 29 July 2020; 5. a bundle of documents compiled by the applicant; 6. the nine pages containing the disputed information in a redacted form and in an unredacted form (the latter having been received by the Tribunal on a confidential basis); and 7. written and oral submissions on behalf of the applicant and the respondent.

The applicable law

The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
The respondent bears the onus of establishing that its decision is justified: s 105 GIPA Act. That means the respondent must, first, identify the information which it contends should be withheld from the applicant because the public interest considerations against disclosure of that information outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane in this proceeding: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in the Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 … 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
As the above provisions demonstrate, the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 of the GIPA Act), and the applicant has a legally enforceable right to the government information she seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 of the GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 of the GIPA Act).
In the present case, the respondent does not rely s 14(1), but does rely upon s 14(2) of the GIPA Act. As such, the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) of the GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act, where applicable; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this balancing task the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the withheld information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: see Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

Considerations in favour of disclosure

The Tribunal has identified the following public interest considerations in favour of the disclosure of the withheld information: 1. the general public interest consideration in favour of the disclosure of government information: 12(1) of the GIPA Act; 2. the interest of the public in being informed about the respondent's management of investigation of incidents at schools including the interest of current and future parents of children (and in particular children with a disability) at the school in question and more generally; and 3. to the extent that the information is personal information of the applicant or the applicant's son, that fact.
As noted above, it is also appropriate to take into account the "personal factors of the application" as matters in favour of disclosure. Those matters are described in s 55 of the GIPA Act as: the applicant's identity and relationship with any other person; the applicant's motives for making the access application; and any other factors particular to the applicant. The applicant has submitted that the following personal factors of the application are relevant: 1. her child has a disability, including an inability to fully convey to her what happens at school; and 2. as the mother of the child, she has a particular interest in having access to the information sought so as to assist her in raising her child.
The Tribunal takes these matters into account as personal factors of the application in favour of disclosure.

Generally

As noted above, the public interest considerations against disclosure which arise for consideration in this proceeding are limited to those in the table in s 14 of the GIPA Act. The clauses in the table upon which the respondent relies are cll 1 (d) and (f) and 3 (a) and (b).
Each of these clauses includes in its chapeau the phrase "… could reasonably be expected to have one or more of the following effects …". The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised in Transport for NSW v Searle [at [68] as follows: "68. There was no dispute between the parties that: … (2) The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26]."
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."

Clause 1(d) of the Table

Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
As to whether disclosure could "prejudice" the supply of confidential information: 1. "prejudice" bears its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]; 2. the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future, rather it is whether the respondent will be able to obtain such information in the future from those sources that are available or likely to be available to the agency: McMahon v Director General, Department of Fair Training [2003] NSWADT 164 at [25]; Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 at [45]; 3. in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information."
The respondent submitted that: 1. disclosure of the information redacted on the basis of cl 1(d) would prejudice the future supply of information by employees in the respondent's incident reporting and investigative processes, thus undermining the respondent's ability to undertake of these processes; 2. the Tribunal has recognised the application of cl 1(d) to information gathered by the respondent in a number of cases, including Troskie v NSW Department of Education and Communities [2014] NSWCATAD 155 at [54]; Luxford v NSW Department of Education and Communities [2016] NSWCATAD 118; and Jones v NSW Department of Education [2017] NSWCATAD 51 at [61]; 3. maintaining the confidentiality of information supplied in the course of an investigation into a complaint serves to encourage participation and cooperation in the process, even where such participation could theoretically be compelled: Independent and Regulatory Tribunal v Services Sydney Pty Ltd [2008] NSWADTAP 79; Alexander v University of Sydney [2008] NSWADT 214; McInnes v NSW Department of Education and Communities [2013] NSWADT 219; AMH v Western New South Wales Local Health District [2013] NSWADT 282; and Jenkinson v Department of Education and Communities [2013] NSW ADT 280; and 4. the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the respondent will be able to obtain such information in the future: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [55]; and Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [38].

Clause 1(f) of the Table

Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions.
The expressions "reasonably be expected to have the effect" and "prejudicing" have been discussed above.
The respondent submitted that: 1. its executive officers need to be able to freely discuss discreetly and honestly how to best manage and resolve various sensitive affecting the operation of schools and that if records of discussions concerning students or parents are released in full, the respondent's ability to perform its complaint handling functions would be prejudiced. In this regard, the respondent relied upon Robinson v Department of Health [2002] NSWADT 222 at [71], where Hennessy DP (as her Honour then was) held that the effective performance of an agency's functions depended to a large extent on the cooperation of those who had relevant information, and that if information received confidentially were to be disclosed such disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions; and 2. in addition to the prejudicial impact on the respondent's management of complaints, disclosure of the disputed materials in the present case could reasonably be expected to inhibit frank and honest communication between staff when dealing with complaints.
The respondent also referred to Luxford v NSW Department of Education and Communities [2016] NSWCATAD 118 and the result in that case that the Tribunal considered that officers should be able freely to do in written form of they could otherwise do orally, in circumstances where any oral communication would remain confidential; such written communications ensure that a proper record is maintained of the considerations taken into account; and if such records were to be released for public scrutiny, officers may feel in the future reluctant to make a written record, to the detriment of these processes and the public record.

Clauses 3 (a) and (b) of the Table

Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing an individual's personal information.
"Personal information" is defined in cl 4 of Sch 4 to GIPA Act in the following way: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 ("PPIP Act"). One of those information protection principles is s 18 of the PPIP Act, which provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
The expression "personal information" is defined in s 4 of the PPIP Act in a manner similar but not identical to the manner in which it is defined in the GIPA Act.
The respondent submitted that: 1. the information redacted on the basis of cll 3(a) and (b) is predominantly in the nature of personal information being the personal information of: 1. third parties, provided in the course of managing the applicant's child's behaviour. Such information may be considered to be personal information of the applicant's child but it is also the personal information of the third parties as it is an expression of their opinions and views: see Singh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5 at [49], citing McKinnon v Blacktown City Council [2012] NSWADT 44 at [73]; and 2. other students who are named. Disclosure of this information would not be in the best interests of those children because it may have a negative impact on their learning; and 1. disclosure of the personal information could reasonably be expected to contravene the information protection principle in s 18 of the PPIP Act because none of the exceptions set out in that section are applicable.

Personal factors of the application against disclosure

Section 55(3) of the GIPA Act allows for consideration of the personal factors of the application as factors against providing access to information in certain circumstances, including whether cll 3(a) or (b) is satisfied. However, the respondent has not suggested that it relies on any such factors.

The withheld information

Against the above background, the Tribunal turns to consider the information in respect of which the respondent refused to provide access.

Pages 342 and 345

These pages have each been described in the Schedule of Documents as a "teacher statement" and each has been redacted entirely in reliance upon cll 3(a) and (b).

Submissions

The respondent relied upon its general submissions at [35] above with respect to cll 3(a) and (b) submitted further that: 1. the information in the "teacher statements": 1. is the personal information of the authors those statements; 2. relates to those authors specifically as opposed to being information about the applicant's child; and 1. whilst other "teacher statements" have been released, the information on these pages is personal information of the authors of the pages.
The applicant submitted that: 1. other "teacher statements" have been produced by the respondent without redaction; 2. to the extent that the purpose of the "teacher statements" related to the management of her child's behaviour, the release of that information to her as a person playing a vital and integral role in the management of her child's behaviour would amount to disclosure directly related to the purpose for which the information was collected (s 18(1)(a) of the PPIP Act); and 3. disclosure of information may be necessary to prevent or lessen a serious and imminent threat to the life or health of her child and the respondent has previously asserted that the information gathered was so needed. In this regard, the applicant submitted that her child's disability is a health-related factor and this is a matter which the respondent had previously acknowledged in circumstances where it has applied for funding on the basis of that disability.

Consideration

The Tribunal has considered the "teacher statements" in pages 342 and 345. The Tribunal is satisfied that the redacted information is personal information of the authors of the statements and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied that cl 3(b) is met in circumstances where the evidence before the Tribunal does not allow the exclusion of the operation of the exceptions in that clause.
Against this, the Tribunal takes into account the public interest considerations and the personal factors of the application in favour of disclosure described at [16]-[17] above. Having done so, the Tribunal is of the view that the considerations in favour of disclosure of the information outweigh those against disclosure. Pages 342 and 345 should be released in full to the applicant.

Page 352

This page has been described in the Schedule of Documents as an "Incident Report". It has been partially redacted in reliance upon cll 3(a) and (b).

Submissions

The respondent relied upon its general submissions at [35] above with respect to cll 3(a) and (b) submitted further that: 1. the information on this page is personal information collected from a staff member of the respondent for the purpose of complying with obligations under the Workplace Health and Safety Act 2011 to enable the respondent to assist the injured staff member and for management of the respondent to identify and minimise risks in the workplace; and 2. disclosure to the applicant would not be disclosure related to the purpose which the information was collected: s 18(1) of the PPIP Act.
The applicant's submissions concerning this page were to the same effect as her submissions with respect to pages 342 and 345.

Consideration

The Tribunal has considered page 352 and having done so is satisfied that the redacted information is personal information of a staff member of the respondent and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied on the evidence before it that the information was collected for the purpose suggested by the respondent, or that the exceptions in cl 3(b) are excluded.
The Tribunal takes into account the public interest considerations and the personal factors of the application in favour of disclosure described at [16]-[17] above. Having done so, the Tribunal is of the view that the considerations in favour of disclosure of the information are outweighed by those against disclosure only with respect to the name of the staff member. Page 352 should be released in to the applicant, with only the name of the staff member redacted.

Pages 353 and 665

These pages are part of email chains. Each has been redacted in one place in reliance upon s 74 of the GIPA.

Submissions

The respondent submitted that the redacted information is information about other students such as their names and other personal information concerning schooling, and is not within the scope of the access application made by the applicant as it does not relate to the applicant's child.
The applicant submitted that: 1. the respondent has provided no evidence that the redacted information is out of scope or about other students; and 2. the non-redacted parts of page 353 and 665 and other emails in the chains in which they appear suggest that those pages were concerned entirely with her child.

Consideration

The Tribunal has considered pages 353 and 665.
The redactions to these pages have been made in reliance upon s 74 of the GIPA Act, which enables the respondent to delete information from a copy of a record to which access is to be provided in response to an access application, on the basis that the deleted information is not relevant to the information to which access is sought. It was held in Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 at [102] - [106] that the Tribunal does not have jurisdiction to review a decision that information is out of the scope of the access application because such a decision is not one of the decisions listed in s 80 of the GIPA Act. A contrary view is available, namely that a decision to not provide information because it is out of scope is a decision to refuse to provide access to information in response to an access application, under s 80(d). However, it is not necessary to resolve that issue as the Tribunal is satisfied that the information deleted from these pages is outside the scope of the access application and should not be released to the applicant.

Page 354

This page has been described in the Schedule of Documents as "Email - Management of incident". It has been redacted in three places.
The first and third redactions have been made in reliance upon cll 3(a) and (b). The second redaction has been made in reliance upon cll 1(d), 1(f), 3(a) and (b).

Submissions

The respondent: 1. relied upon its general submissions concerning cll 1(d) and (f) and 3(a) and (b) set out at [26], [29] and [35] above; and 2. submitted that the release of the information on page 354 would likely negatively affect and prejudice the effectiveness of the functions of the school, particularly surrounding work health and safety obligations and reporting.
The applicant submitted that the email appears to be referring to her child.

Consideration

The Tribunal has considered page 354.
As to the first and third redactions, the Tribunal is satisfied that the redacted information is personal information of a staff member of the respondent and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied that cl 3(b) is met. After taking into account the public interest considerations and the personal factors of the application in favour of disclosure described at [16]-[17] above, the Tribunal is of the view that the considerations in favour of disclosure of the information are outweighed by those against disclosure. The information the subject of the first and third redactions should not be released to the applicant.
As to the second redaction, the Tribunal is satisfied that the redacted information is personal information of a staff member of the respondent and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied that cl 3(b) is met.
The Tribunal is also not satisfied that either cll 1 (d) or (f) applies. As noted above, any finding that disclosure could reasonably be expected to have a particular effect is one which must be made upon logically probative material, and a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient: see Transport for NSW v Searle; Newcastle City Council v Newcastle East Residents Action Group, Flack v Commissioner of Police, NSW Police Force and Meacham v Commissioner of Police, discussed above.
The respondent submitted that disclosure of the redacted information could reasonably be expected to have the effects described in cll 1 (d) and (f) and in particular to negatively affect and prejudice the effectiveness of the functions of the school, particularly surrounding work health and safety obligations and reporting. However, the respondent has not adduced any affidavit evidence in support of its submissions. Nor has it drawn the Tribunal's attention to any documentary evidence in support thereof.
As to cl 1(d), the respondent relies upon the cases described in [26(2) and (3)] above. However, each case turns on its own facts and cl 1(d) does not apply universally to information of the respondent. It is necessary in each case to prove the factual basis for the operation of the clause. It may also be noted that the respondent has not identified the nature of the information which is suggested to be confidential and the provision of which might be stymied in the future.
As to cl 1(f), the respondent relies upon the decision in Robinson. However that is of no assistance in circumstances where it related to another agency almost 20 years ago. Further, the finding at [71] of Robinson upon which the respondent relies was a finding based upon evidence adduced before the Administrative Decisions Tribunal in that case: see Robinson at [8] - [10], [41] and [50]. Similarly, the result in Luxford, on which the respondent also relied, was reached on the basis of the evidence adduced in that case.
Thus, the only applicable public interest consideration is cl 3(a) and it is to be weighed against the public interest considerations and the personal factors of the application in favour of disclosure described at [16]-[17] above. The Tribunal is of the view that the considerations in favour of disclosure of the information are outweighed by those against disclosure, and the information the subject of the second redaction should not be released to the applicant.
It follows that page 354 should not be released to the applicant.

Page 435

This page has been described in the Schedule of Documents as "Contact log". It has been redacted in four places. The applicant indicated that only the first two of these redactions are in dispute. Those redactions have been made in reliance upon cll 3(a) and (b).

Submissions

The respondent relied upon its general submissions concerning cll 3(a) and (b) at [35] above and submitted that the information redacted from this page is personal information of third parties.
The applicant submitted that: 1. page 435 is part of a much larger document and the larger document includes the respondent's concerns relation to the imminent threat to the life or health of her child; 2. the remainder of the broader document (save for the names of children) has been released and it is unclear why the information on page 435 has been redacted; and 3. the redactions appear to contain more than just the names of children/students.

Consideration

The Tribunal has considered page 435. Having done so, the Tribunal is satisfied that the information the subject of the first and second reductions is personal information of staff members of the respondent and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied that cl 3(b) is met.
The Tribunal has also considered the factors in favour of disclosure described at [16] - [17] above. The Tribunal is of the view that the considerations in favour of disclosure of the information are outweighed by those against disclosure, and the information the subject of the first and second redactions should not be released to the applicant.

Pages 673 and 674

These pages are described together in the Schedule of Documents as "Email correspondence". They have been redacted in three places.
The first and second redactions have been made in reliance upon cll 1 (d) and (f). The third redaction has been made in reliance upon cll 3(a) and (b).

Submissions

The respondent relied upon its general submissions concerning cll 1(d) and (f) and 3(a) and (b) set out at [26], [29] and [35] above and submitted further that: 1. the redacted information is relevant to the management and function of processes undertaken by the school and the respondent; 2. the release of the redacted information on pages 673 and 674 would: 1. likely negatively affect and prejudice the effectiveness of the school's functions in relation to suspension and behavioural management; and 2. contravene the information protection principle in s 18 of the PPIP Act as it would be disclosure for a purpose other than that for which the information was collected; and 1. the information redacted on page 674 in reliance upon cll 3(a) and (b) is personal information of a third party.
The applicant submitted that these pages are part of a larger email chain which relates to her child.

Consideration

The Tribunal has considered pages 673 and 674.
As to the first and second redactions, the Tribunal is not satisfied that either cll 1(d) or (f) applies. This is again because the respondent has not proven on the evidence before the Tribunal that disclosure of the information could reasonably be expected to have any of the effects suggested. As no public interest consideration against disclosure has been established, the information the subject of the first and second redactions should be released to the applicant.
As to the third redaction, the Tribunal is satisfied that the redacted information is personal information of staff members of the respondent and that the public interest consideration in cl 3(a) is to be taken into account. The Tribunal is not satisfied that cl 3(b) is met. The Tribunal has also considered the factors in favour of disclosure described at [16] - [17] above. The Tribunal is of the view that the considerations in favour of disclosure of the information outweigh those against disclosure, and the information the subject of the third redaction should be released to the applicant.
It follows that pages 673 and 674 should be released in full to the applicant.

Costs

The applicant also seeks an order for costs, on various grounds such as: 1. the manner in which the respondent has dealt with her application, including the time taken; the release of further documents which should have been released initially; the method of delivery of documents (including the use of a CD- ROM and USB and the inclusion of multiple drafts of documents); documents not bearing dates; a change in the reasons given for refusing access; the failure of the respondent to appear at a directions hearing and to follow certain directions; and the failure of the respondent to provide evidence which would have allowed a robust discussion at case conferences; 2. the conduct of the school; and 3. the effect of these matters upon her.
The Tribunal has power to award costs. Section 60 of the NCAT Act provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - "costs" includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The Tribunal has is not prepared to make a costs order in favour of the applicant. The usual costs position is that each party is to bear its own costs and the present circumstances are not sufficiently special to displace that usual position, particularly when account is taken of the following: the volume of material responsive to the application; that some of the respondent's conduct upon which the applicant relies occurred during the current pandemic; that the respondent is not bound by its initial grounds of refusal; and that the release of documents previously withheld is to be encouraged.

Orders

The order of the Tribunal is: 1. The decision of the respondent under s 58(1)(d) of the Government Information (Public Access) Act 2009 to refuse access to information because of an overriding public interest consideration against disclosure of the information is: 1. varied, by granting the applicant access to the following information within 28 days of the date of these Orders: 1. pages 342, 345, 673 and 674 without redaction; 2. page 352, with the name of the staff member redacted; 1. affirmed with respect to pages 353, 354, 435 and 665.

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

Amendments 24 September 2021 - Applicant's name anonymised pursuant to s 64 Civil and Administrative Tribunal Act 2013 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: 24 September 2021

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Parties

Cases Cited (19)