FGK v Legal Aid NSW

FGK v Legal Aid NSW - [2021] NSWCATAD 308 - NSWCATAD 2020 case summary — Zoe

[5]

The Respondent's arguments

It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)). Relatedly, it is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)).
The relevant elements of clause 1(d) are that: 1. the information was obtained in confidence; 2. the information facilitates the effective exercise of the agency's functions; and 3. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.
The Respondent submits that the withheld information was supplied as part of its process for receiving and managing complaints about practitioners appointed to its panels. It relies on the evidence of Ms Burgess that high standards of confidentiality are observed throughout this process. In particular, Ms Mattes referred to Ms Burgess' evidence that: 1. it is her experience that all stakeholders in the complaints management process (including complainants, the practitioners about whom the complaint has been made and Legal Aid staff) have an expectation that the information they have supplied will be managed confidentially; and 2. it is her experience that confidentiality is maintained as a matter of practice and that information is not disclosed outside the complaint management process, and not outside of the Respondent except to the extent the law requires.
The Respondent submits that the emphasis it places on confidentiality is apparent from certain aspects of the complaints management process and it is also apparent from the face of the documents in issue. In particular, when a person makes a complaint through the Respondent's website, they are asked whether or not they consent to their complaint being provided to the practitioner. Where a complaint has been made by some other channel, the Respondent will follow up with the complainant to ascertain whether they consent to their complaint being provided. Where consent is not given, the complainant's identity will not be disclosed.
Any response received from a practitioner in relation to a complaint is also treated confidentially and, as a matter of practice, it is not provided to a complainant. This would only be provided with the practitioner's consent.
Where complaints are made by clients of the Respondent, the complaint is made in the context of a solicitor-client relationship. The Respondent submits that in that situation sections 25 and 26 of the LAC Act apply to the information.
The Respondent submits that, in effect, panel lawyers act as agents of the Respondent in their provision of legal services to the Respondent's clients. It contends that, to the extent that the PPB monitors the conduct and compliance of panel lawyers, and responds to complaints about them, this process is analogous to investigations of internal complaints and allegations of employee misconduct. Ms Mattes referred to the decision in EIF v Legal Aid NSW [2020] NSWCATAD 113 at [83] where Senior Member Mulvey stated: "It is accepted that panel lawyers are not employees of the respondent. However, in considering the functions of the respondent as set out in Division 2 of Part 3 of the LAC Act, the same considerations apply in my view. The respondent can assign work to panel solicitors and in doing so place conditions on members of panels, investigate breaches of service provision agreements and undertake audits with respect to the work carried out by those panel lawyers. Those functions are analogous in my view to the way in which information is provided relevant to investigations with respect to what could be expected of an employee/employer relationship".
Ms Mattes referred to the Appeal Panel decision in Commissioner of Police & New South Wales Police Force v Camilleri [2012] NSWADTAP 19 at [28] - [29] as support for the submission that the second limb of clause 1(d) is not concerned with whether a particular complainant whose complaint is disclosed would in future refuse to supply relevant information. Rather, the question as to prejudice is to be determined at a broader operational level. Clause 1(d) is concerned with the question of whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future. Ms Mattes noted Ms Burgess' evidence that: 1. she is concerned that people would consider disclosure of their information to be a breach of trust, and would cause people to be reluctant to raise issues and make complaints in the future if their confidentiality could not be adequately assured; 2. legal practitioners and judicial officers can be particularly reluctant to make complaints about other practitioners if their confidentiality cannot be assured; and 3. she is concerned that the disclosure of practitioners' responses to complaints would lead to practitioners being less forthcoming in their responses to complaints, and unwillingness to participate in the complaints management process.
Ms Mattes submits that the Tribunal should accept that the disclosure of the complaints is likely to adversely affect the future flow of information. The disclosure of complaints and information generated in the investigation of complaints could reasonably be expected to prejudice the future supply of that information.
Ms Mattes referred to the decision in EIF v Legal Aid NSW at [86] where Senior Member Mulvey stated: "I accept Ms Dimos' [the Manager, Professional Practices Branch (PPB), in the respondent's grants division] evidence in terms of her experience in processing complaints within the respondent's PPB Division. She is aware of concerns of the complainants and the requests for confidentiality. She states that disclosure of complaints could indeed have a detrimental effect on the ability of the PPB to obtain similar information in the future. Ms Dimos states that disclosures by staff and non-staff are very important contributions to the PPB's role of monitoring and managing serious complaints about panel lawyers. The inability of the PPB to ensure confidentiality in this regard, in my view, is vitally important to it facilitating the exercise of its function. Disclosure of such information, in my view, could reasonably be expected to prejudice the supply of that information in the future. The absence of the various sources of confidential information obtained by the respondent to investigate complaints would, in my view, compromise its ability to continue to conduct investigations in a fair and effective manner in the future".
Ms Mattes referred to the decision in Robinson v Department of Health [2002] NSWADT 222 at [71] as support for her submission that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who hold relevant information. She submitted that if information obtained confidentially was to be provided to an applicant, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by the Respondent of its functions. Similarly, she referred to the decision in Alexander v University of Sydney [2008] NSWADT 214 at [33] - [35] where the Tribunal considered that the absence of confidential channels of communication would seriously inhibit the University's capacity to identify possible employee misconduct and it would compromise the ability of the University to continue to conduct investigations in a fair and effective manner.
Ms Mattes noted that the third limb of clause 1(d) involves consideration of the effect of disclosure on the effective exercise of the agency's functions. She submitted that disclosure of complaints information would prejudice the monitoring and compliance functions of the PPB. This, in turn, would prejudice the effective exercise of the Respondent's core functions of providing legal services to disadvantaged and vulnerable persons. She noted Ms Burgess' evidence that: 1. the Respondent relies on persons raising concerns about practitioners in order to carry out its functions of monitoring the compliance and conduct of panel lawyers; 2. complaints trigger investigations by the PPB and, where appropriate, referrals to Deputy CEO to consider whether further action be should be taken against the practitioner; 3. without these complaints, potential breaches of service provision agreements would not be brought to the PPB's attention.
Ms Mattes submits that any reluctance on the part of individuals to make complaints or raise concerns about panel lawyers would have a negative impact on these functions. Additionally, any reticence on the part of practitioners to respond and participate in the complaints management process would reduce the effectiveness of that process.
In order to ensure that appropriate persons are assigned to perform panel work, it is critical that the PPB is able to receive complaints and investigate compliance by those lawyers with quality standards and the requirements of their service provision agreements.
It is submitted that in the circumstances of this matter the disclosure of confidential information, relating to the management of complaints about a panel lawyer, could reasonably be expected to prejudice the future supply of such information to the Respondent. The supply of such information is necessary for the effective exercise of the PPB's monitoring and compliance functions and, more broadly, Legal Aid's functions of providing legal services to its clients. For these reasons, the considerations against disclosure in clauses 1(d) and (f) of the Table to section 14 apply, and should be given considerable weight when balancing the public interest.

[6]

The Applicant's arguments

The Applicant does not accept that the Respondent's argument in relation to clauses 1(d) and 1(f) are applicable in circumstances where the agency has failed to manage the ICL scheme appropriately. He submitted that providing complete transparency will ensure public confidence in the Respondent's processes related to ICL complaints and oversight. He submitted that individuals will complain if they have confidence in the processes and see clearly that their complaints are taken seriously and acted upon promptly. He argues that it is in the public interest that individuals know the processes are impartial and transparent. He contends that accountability and transparency would only encourage complainants to both come forward and make the relevant complaints. Through openness and public scrutiny the public can be satisfied that true accountability is in place where the Respondent's actions may have led directly to the abuse and harm of children.
The Applicant observed that there is a failing in the Respondent's complaints process as it does not give a complainant an opportunity to respond to any submission put forward by a practitioner.
In relation to clause 1(f), he submitted that the primary duty of the Respondent is to act swiftly to remove any ICL who is acting inappropriately and putting children at risk of abuse and/or harm. He does not accept that complete transparency would prejudice the effective exercise of the agency's functions in this regard.
The Applicant disagrees with the position put forward by Ms Burgess and suggested that the Respondent should contact those families who were aggrieved by conduct of the ICL and ask that they give their consent for the release of their complaints. He submitted that consent would be given if it means that the ICL and the Respondent are held accountable.
With respect to the Respondent's contention regarding the context of a solicitor-client relationship, the Applicant argues that children are not an ICL's 'clients'. The ICL is there to represent their best interests, which does not form part of a standard "solicitor-client relationship".
The Applicant argues that there are multiple exceptions to the secrecy provision of section 26 of the LAC Act, including sub-section 25(4)(c) which concerns disciplinary proceedings under the Legal Profession Uniform Law (NSW). He submitted that disciplinary proceedings are underway as part of the OLSC complaint and investigation process.
In relation to evidence given by Ms Burgess the Applicant submitted: Ms Burgess has been extensively quoted in the respondent's submissions, however, Ms Burgess is the individual who has overseen the complaints management process at the Respondent when the potential failures in the process associated with the ICL have taken place and as such it is submitted her reliability as a witness and expert has to be called into questioned.
In regard to the Respondent's suggestion that its relationship with panel lawyers is analogous to that of an employee/employer relationship, the Applicant submits that the ICL has been removed from the panel and confidentiality is no longer relevant as she has acted outside of the Respondent's Practice Standards. He also submitted that the health issues of a practitioner can have no relevance to a complaint about their performance as an ICL if their conduct results in the abuse and harm of children. He further submitted that there could be no personal information in a response provided by the ICL that should prevent her being held accountable for her actions and the abuse and harm of children.
The Applicant disputes the contention that the disclosure of practitioners' responses to complaints could lead to practitioners being less forthcoming in their responses, and unwillingness to participate in the complaints management process. He submits that this is pure conjecture and must fail as potentially irrational, absurd or ridiculous. He argues that if an ICL has done nothing wrong there would be no possible reason for them not to respond to a complaint or participate in the complaints management process. He submits that any practitioner who refuses to participate in a complaint process should be immediately removed from the ICL panel.
Similarly, the Applicant disputes the claim that the disclosure of the complaints is likely to adversely affect the future flow of information. He submitted that the opposite is true and that accountability and transparency will result in an increase in complaints against ICLs.
He also disputes the contention that releasing the withheld information would prejudice the effective exercise of the Respondent's core functions of providing legal services to disadvantaged and vulnerable persons. He submits that this contention is irrational, absurd or ridiculous as the only disadvantaged and vulnerable persons involved are the children who have been abused and harmed by an ICL.
Having regard to these matters, it is submitted that the considerations against disclosure should be given minimal weight when balancing the public interest.

[7]

Discussion

The Tribunal has recognised in a number of cases that the effective performance of an agency's functions depends to a significant extent on the performance and management of its staff. Agencies rely on the cooperation of staff to obtain access to the best information on which to make findings and take action in cases of misconduct. The effective performance of an agency's employer functions requires that complaints relating to employee misconduct are handled confidentially.
In the circumstances of this matter I am satisfied that the relationship between the Respondent and panel lawyers is analogous to that of an employee/employer relationship.
The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second is that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, thirdly, the information facilitates the effective exercise of the agency's function.
Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency's functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d), this provision has often been considered in relation to an agency's assertion as to the importance of obtaining confidential information in order to exercise its functions effectively. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions.
The evidence in this matter establishes that the withheld information was obtained in confidence. The evidence of Ms Burgess establishes that the information facilitates the effective exercise of the agency's function and it is her view that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future.
I do not agree with the Applicant's submission regarding Ms Burgess' reliability as a witness. I accept her evidence in regard to the consequences that could reasonably be expected from the disclosure of withheld information. The Applicant's focus is on the specific complaints against the ICL However, the Tribunal has recognised in a number of cases that the question as to prejudice is to be determined at a broader operational level rather than with respect to a specific complaint.
I do not accept that the views that Ms Burgess has expressed are irrational, absurd or ridiculous. While I agree with the Applicant that accountability and transparency might result in increased participation by some individuals, it is my view that the more likely outcome from disclosure of the withheld information is reticence on the part of practitioners to respond and participate in the complaints management process. This is consistent with the view expressed by the ICL that the release of the information sought by the Applicant would have the potential to cause her irreparable professional harm. If other practitioners adopted a similar view it is likely that they would significantly limit the information that they would be prepared to provide to the Respondent if they became aware that their responses would be released in response to a GIPA access application.
Further, in a number of cases the Tribunal has accepted that revealing how an internal disciplinary matter is investigated is undesirable and may prejudice the effectiveness of future investigations.
In my view, this could indeed have a detrimental effect on the ability of the Respondent to obtain similar information in the future.
I agree with the Applicant that if it was possible to remove the name and identifying details of the individuals concerned, the overriding public interest against the release of the remainder of the document may not arise. However, for the reasons argued by the Respondent, those redactions are not practicable in the circumstances of this matter.
I agree with the Applicant that it is likely that individuals will engage with the Respondent if they have confidence in the complaint management processes and can see clearly that their complaints are taken seriously and acted upon promptly. However, in my view the maintenance of confidentiality of the information that is provided is an essential element if confidence in the processes is to be reached.
The arguments put forward by the Applicant regarding accountability and transparency are considerations in favour of the release of the withheld information and should be given reasonable weight. However, they are not conclusive. It is necessary to undertake a balancing process between the considerations in favour of release and those against release of the withheld information.
In my view, the Respondent's ability to carry out its functions effectively would be limited significantly if the withheld information did not remain confidential. In these circumstances, disclosure of this information would reasonably be expected to prejudice the effective exercise of the Respondent's functions Clauses 1(d) and (f) apply to each of the documents and should be given significant weight.
In my view, the considerations against release of the withheld information far outweigh those in favour of release when the competing considerations are balanced. Clauses 1(d) and (f) apply to each of the withheld documents and in my view are determinative of this matter. In the circumstances, the withheld information should not be released.
Having formed this view it is not necessary that I consider the other public interest considerations. Nevertheless, for completeness, I will deal with them briefly.

[9]

The Respondent's arguments

Ms Mattes submitted that it is apparent from the face of the withheld documents that they each reveal information that is in the nature of "deliberations" or "consultation conducted" with respect to the complaints, and "opinions, advice and recommendation[s]" given. This is particularly the case with: 1. correspondence with the ICL seeking her response to issues raised and her response; and 2. internal correspondence within the Respondent regarding complaints management.
Thus, she submitted, the first element of clause 1(e) is satisfied.
For clause 1(e) to apply, it must also be established that disclosure of this information would reasonably be expected to prejudice the deliberative process of government or an agency. Ms Mattes referred to the decision in Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 as support for her submission that the government or agency's deliberative processes may be described as the "internal thinking" on an issue. Principal Member Higgins stated at [58]: 58. The meaning of the term 'deliberative process' was considered by the AAT, in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in s 36 of the Commonwealth Freedom of Information Act 1982 (FOI Act (Cth)), as it applied at that time. Although cl 1(e) of the GIPA Act and s 36 of the FOI Act (Cth) (as it applied in 1984) are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive: 58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. ... 59 It by no means follows, therefore, that every document on a departmental file will fall into this category. ... Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies. 60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". ... 61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. ...
I agree with that view.
Ms Mattes referred to the decision in Van der Wall v University of Sydney [2008] NSWADT 213 at [36] as support for her submission that a relevant connection must be established between the deliberation as contained in the information that is in dispute and the deliberative processes that would be prejudiced.
She submitted that disclosure of information would prejudice future consultation and the deliberative process more generally, with respect to complaints about panel lawyers. She noted Ms Burgess' evidence that internal consultations and deliberations are undertaken with the expectation that they are confidential. She also submitted that it is apparent from the documents that these internal deliberations often require engagement with the underlying facts and circumstances of the complaint and that this may be highly sensitive and reveal the personal information of persons who are involved. Staff may be reluctant to engage in frank and open discussion or, at least, to commit these deliberations to paper if these consultations were open to public scrutiny.
She also noted Ms Burgess' view that any reluctance on the part of practitioners to participate in the complaints management process and to provide a fulsome response to issues raised would have a detrimental impact on the Respondent's complaints management process.
For these reasons the Respondent contends that disclosure of information revealing deliberations and consultation in regard to complaints about panel lawyers would prejudice future deliberative processes as part of the complaints management process. Clause 1(e) applies as a consideration against disclosure of information revealing these deliberations and consultation.
Ms Mattes submitted that this likely prejudice also provides a further basis for the application of clause 1(f) as a consideration against disclosure.

[10]

The Applicant's arguments

The Applicant submits that the Respondent's arguments do not take into account the potential failure of the complaints management process within the agency and the urgent requirement to bring transparency to the inner workings of the ICL scheme. He submits that it is in the public interest that there is complete and utter transparency throughout complaints management processes to ensure that the Respondent acts first and foremost in the best interests of any children at risk of harm.
The Applicant submits that the first element of clause 1(e) is not satisfied. It is submitted that this conclusion is flawed. He says that the complaints management process failed and should be opened to public scrutiny. It is in the public interest to understand why the ICL was removed from the ICL panel and why she was not disciplined or removed earlier. He submits that it is in the public interest to determine if the Respondent realised it had made a grave error in not removing the ICL earlier.
It is submitted that it is the Respondent's "thinking processes" and "wisdom" that need to be exposed to public scrutiny to determine if there was a systemic failure in the agency's internal oversight processes.
The Applicant disputes Ms Burgess' belief that disclosure of the withheld information would prejudice future consultation and the deliberative process generally and with respect to complaints about panel lawyers. He submits that there is a fundamental flaw in Ms Burgess' assertions that internal consultations and deliberations are undertaken with the expectation that they are confidential and that if these consultations were open to public scrutiny, staff may be reluctant to engage in frank and open discussion. He submits that the Respondent's staff should be held fully accountable for their actions in processing complaints. There needs to be complete impartiality and transparency, and the "consultations and deliberations" should be totally open to public scrutiny.
He also disputes that there would be any reluctance on the part of practitioners to participate in the complaints management process or that they might be reluctant to provide a fulsome response to whatever issues have been raised. He submits that the Respondent's submissions are flawed in that regard. Rather, he contends that disclosure of information revealing deliberations and consultation in regard to complaints about panel lawyers would provide public confidence in the agency's complaints management process.
He submits that the considerations against disclosure should be given minimal weight when balancing the public interest.

[11]

Discussion

The Respondent contends that this consideration is applicable to two categories of the withheld information: (a) correspondence with the practitioner seeking her response to issues raised and her response (Documents 10, 11, 23, 24, 25, 29, 30, 31, 36, 37, 38, 42 and 43) and (b) internal correspondence within Legal Aid regarding complaints management (Documents 7, 8, 9, 10, 11, 23, 24, 25, 29, 30, 31, 36, 37, 38, 39, 41, 42, 43, and 45-67).
"Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. There can be no doubt that the release of the documents under consideration would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given.
The expression "deliberative processes" appears to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency: see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at [58] - [61].
The Tribunal has recognised in a number of cases that the release of records revealing sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues. Staff may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the deliberative process altogether. Staff may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.
In circumstances where any oral communication would remain confidential, officers should be able to do freely, in written form, what they could otherwise do orally. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may feel reluctant to make a written record in the future, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45.
I accept the evidence given by Ms Burgess and I find that in the circumstances her concerns regarding the potential prejudice to the Respondent's deliberative process that might follow as a consequence of releasing these documents are reasonable.
In my view, disclosure of this information could reasonably be expected to prejudice the Respondent's deliberative process. Clause 1(e) applies to the identified documents and should be given significant weight.

[17]

The Respondent's arguments

The Respondent submits that a significant proportion of the withheld information contains the personal information of a number of individuals and that it would not be possible to redact or otherwise de-identify this information in such a way as to overcome these considerations against disclosure.
The Respondent relies on Ms Burgess' evidence that the withheld information includes: 1. complaints made by individuals; 2. information provided in connection with those complaints (including court documents from family law proceedings); 3. and correspondence with the individuals who have made the complaints.
The Respondent submits that the identities of those who have made the complaints is apparent, as is the identity of a number of other individuals associated with the complainants who are named in the documents, in particular, other family members, including minors. Further, information relating to the ICL's conduct may be characterised as her personal information.
The complaints have been made in connection with the conduct of an ICL in family law proceedings. Much of the information relates to the conduct of those proceedings and can be characterised as highly sensitive in nature.
It is submitted that that there is considerable public interest against disclosure of information that has been supplied incidentally and is not directly related to the complaint regarding the ICL.
The Respondent further submits that the disclosure of this personal information would contravene section 18(1) of the PPIP Act. That section provides that a public sector agency must not disclose personal information to a person unless the disclosure is directly related to the purpose for which the information was collected and the agency has no reason to believe that the individual concerned would object to the disclosure, or the individual concerned is reasonably likely to have been made aware that information of that kind is usually disclosed to that other person.
It is submitted that the complaints were made in confidence and were treated confidentially by the Respondent. Personal information was collected by the Respondent for the purpose of receiving complaints and monitoring the performance and conduct of a panel lawyer. In those circumstances, disclosure of the information in response to an access application would not fall within any of the permitted forms of disclosure for which subsections 18(1) (a) - (c) of the PPIP Act provide. Therefore, disclosure of the information would contravene the section 18.
The Respondent further submits that these considerations are compelling and should be given significant weight when balancing the public interest.

[19]

Discussion

The expression "personal information" refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information.
The disclosure of the complaints would, reveal the identity of the complainants and other individuals who were party to family law proceedings. It would also reveal the facts and circumstances that are the subject of the complaints as well as the opinions expressed by the complainants with respect to the ICL's conduct. It would also reveal the ICL's opinions and other personal information.
In McKinnon v Blacktown City Council [2012] NSWADT 44 the Tribunal held that information and opinions about the conduct of employees or contractors of the agency in the course of undertaking their duties was 'personal information' within the meaning of the GIPA Act.
The ICL's opinions and other personal information is clearly captured by the GIPA Act definition of 'personal information'. The information about other individuals is also their personal information. That information has not been publicly disclosed and disclosure to the Applicant would 'reveal' personal information.
In my view the release of the personal information contained within the withheld documents would contravene section 18(1) of the PIPA Act. None of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies.
I do not agree with the Applicant's suggestion that the withheld information can be redacted in a way that would de-identify this information to overcome these considerations against disclosure. I agree with the Respondent that because of the context in which the complaints have been made it is highly likely that even with the use of pseudonyms individuals would be identifiable. The release of information under GIPA is unconditional and effectively it is release to the whole world. In my view it is likely that anyone who knows the context of the particular family law proceedings that are the subject of the withheld information would be able to identify some of the individuals concerned.
In my view, there is public interest against disclosure of the information contained in those documents on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. This consideration should be given reasonable weight.

[21]

The Respondent's arguments

The Respondent submits that the public interest consideration in clause 3(e) involves a two limb test: firstly, the allegations must be false or unsubstantiated; and secondly, the allegation must be defamatory.
The Respondent relies on views expressed in Hurst v Wagga Wagga City Council where Judicial Member Molony stated at [83] - [84]: 83. ... In helpful submissions on the issue the Information Commissioner said- "49 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA). 50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory. 51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ... 52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed): A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by: (1) disparaging him or her; (2) causing others to shun or avoid him or her; or (3) subjecting him or her to hatred, ridicule or contempt. The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff. 53. The respondent has not considered whether the allegations are defamatory. 84. The construction pressed by the Information Commissioner is broadly consistent with that suggested by the editors of Robinson, NSW Administrative Law (Thompson Reuters) at 50.7270. I accept it.
The Respondent submits that some of the requested information contains allegations about the ICL that have not been substantiated, and which are defamatory in the sense that their disclosure would tend to be injurious to her professional reputation.
In addition, the Respondent submits that a number of documents include highly inflammatory allegations and assertions about individuals, made in the context of family law proceedings. That information is entirely unrelated to the ICL or any complaint made about her. The Respondent says that those allegations are undoubtedly defamatory in nature and that it is not in a position to assess the truth or otherwise of the allegations.
It is submitted that where the information reveals allegations of this nature, clause 3(e) applies as a consideration against disclosure, and should be given significant weight.

[23]

Discussion

The critical questions are whether the disclosure of the withheld information could reasonably be expected to reveal allegations that were defamatory and whether those allegations are false or unsubstantiated.
Pursuant to section 73(1) of the GIPA Act disclosure of the information cannot be made subject to conditions and therefore the disclosure would potentially reveal the allegations more widely than to the Applicant alone.
The ICL disputes the allegations and contends that the release of the information has the potential to cause her irreparable professional harm. She further submitted that the Applicant is prepared to engage in defamatory actions and that he would likely misuse any other information provided to him. She has indicated that she has already suffered significant damage to her professional reputation.
In my view, some of the allegations about the ICL that were made by the Applicant have not been substantiated and they are defamatory in the sense that their disclosure would tend to be injurious to her professional reputation.
I note the Applicant's assertion that the allegations are true. However, I have no basis on which to assess the truth or otherwise of those allegations. The mere fact that the Respondent may have taken some action against the ICL does not mean that all or even some of the allegations have been substantiated.
In regard to allegations and assertions about individuals, I accept that those allegations are also defamatory in nature and I have no basis on which to assess the truth or otherwise of the allegations. In my view there can be no doubt that those allegations are unsubstantiated.
I do not agree that it would be practicable to redact the withheld information to extract any parts of the material which is defamatory.
In my view, the disclosure of the withheld information could reasonably be expected to reveal unsubstantiated allegations that are defamatory. I consider that this is less significant in the consideration of the balance of public interest than other factors upon which the Respondent relies.

[27]

Discussion

This public interest consideration against disclosure requires consideration of the effect that disclosure of the particular information would have on the best interest of a child.
The withheld documents contain information about named children in relation to family law matters which did not concern the Applicant. There is no evidence before the Tribunal that the guardian of those children has given consent for the information to be disclosed.
In Medlyn v Commissioner of Police [2020] NSWCATAD 125 Senior Member Higgins stated at [114] - [117]: 114. In my opinion, the cl 3(g) public interest consideration against disclosure should be construed in the same manner the other public interest considerations against disclosure in the Table to s 14(2) have been construed; namely where: 1. the disclosure is the disclosure of personal information about a child; and 2. the disclosure of information of this kind could reasonably be expected to have the effect that it would not to be 'in the best interests of the child' to have it disclosed. ... 117. As noted in [Mansfield v Department of Family and Community Services [2014] NSWCATAD 43] children are particularly vulnerable and in need of protection against any risk of significant harm. Such protections are provided for in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (The Care and Protection Act) and other legislative instruments. The Care and Protection Act contains mandatory reporting requirements of incidents of significant harm to the respondent and other authorised officers. Such reports contain personal information about the child to whom it relates and this information is confidential and not publicly disclosed: see Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29. Disclosure of such information is limited in the interest of the child.
I agree with that view.
I agree with the Respondent that disclosure of personal information of children would be contrary to community expectations about protecting the privacy of children, particular where information arises in the context of family law proceedings.
I accept the Respondent's submission that it would not be in the best interests of those children for the information about them to be disclosed.
Accordingly, I am satisfied that the Respondent has established that this public interest consideration against disclosure applies and it should be given significant weight.

[32]

Where does the balance lie?

I find that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
The starting point in the balancing process is the general presumption in favour of government information. I have given reasonable weight to the public interest in transparency of the Respondent's processes. I accept that transparency will promote public confidence in the manner in which the Respondent handles ICL complaints and its oversight of ICLs.
I also accept that the Applicant's personal factors are relevant in that he has a genuine interest in the manner in which the Respondent handles ICL complaints and a particular interest in the way it has handled his own complaint against the ICL. In my view these factors are to be given significant weight in regard to information directly related to his complaint.
However, I have agreed with the Respondent in regard to the applicable public interest considerations against disclosure. I do not agree with the majority of the Applicant's arguments in relation to the weight to be given to those considerations.
I have given considerable weight to the public interest considerations against disclosure in clauses 1(d) and 1(f) as I consider that confidentiality of the processes is a significant factor in obtaining information that will allow the Respondent to carry out its oversight functions in relation to ICLs.
I have also given considerable weight to the public interest considerations against disclosure in clauses 3(a), 3(b) and 3(g) and in clause 6. While I accept that some of the information indirectly concerns the Applicant, I am not satisfied that the personal information of other individuals can be redacted in a way that will prevent the identification of the individuals concerned. I am satisfied that much of the information is very sensitive. That is particularly the case where it includes personal information about a child. I am satisfied that a disclosure of the information would be a breach of the information protection principle in section 18 of the PPIP Act. The disclosure of the withheld information would also contravene section 26 of the LAC Act.

Parties

Applicant/Plaintiff:

FGK

Respondent/Defendant:

Legal Aid NSW

Legislation Cited (7)

Privacy and Personal Information Protection Act 1988(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Government Information (Public Access) Act 2009(NSW)

Legal Aid Commission Act 1979(NSW)

Family Law Act 1975(Cth)

Privacy and Personal Information Protection Act 1998(NSW)

Children and Young Persons (Care and Protection) Act 1998(NSW)

Cases Cited (12)

Applicable legislation

The object of the GIPA Act as stated under section 3(1) is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.
Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information.
Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Individual interests in seeking information may coincide with the public interest.
The term 'public interest' is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".
Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms: 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.
The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].

Cited By (3)

Hau v South Eastern Sydney Local Health District

Howlett v Moree Plains Shire Council

Newton v Newcastle City Council

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (12)

Cited By (3)