FRK v Secretary, Department of Education

Application for Administrative Review

1. On 1 December 2022, the Tribunal received the current application for administrative review which set out the following grounds: See attached document "Second Application to NCAT by (FRK)".
2. I refer to that document and note that the applicant complained that the respondent had failed to address breach of its policy "in the GIPA refusal". He also stated, relevantly: 13. We contend that the reasoning provided in the DET GIPA Act refusal indicates serious misconstruction and misuse of the provisions of the GIPA Act and the Privacy and Personal Information Protection Act 1990 (P and PIP Act), which were relied upon (emphasis in original) … 17. The DET Access Officer has speciously argued as though our application was to seek information about other persons and that it therefore falls under the ambit of s 18 of the P and PIP Act (emphasis in original). a. Our application did not seek to access any information about the students who provided witness evidence (emphasis in original). b. We seek only the information provided about (his child) (emphasis in original). 18. I note here another specious argument in the DET GIPA refusal letter that the students who may have provide (sic) evidence would become identifiable by their handwriting a. In our several appeals and applications to access the evidence, we have constantly stated our willingness to receive the evidence in the most general, anonymous terms, protecting the identity of witnesses as provided in DET Policy as follows: … 19. As this is our seventh application to access the information I will this time actually include a minimalist-content template for providing the requested information which I would consider acceptable, to wit "one student stated that they say XYZ, one student stated that they saw ABC, one student stated that they saw PQR". (emphasis in original) A. such information is not about the witnesses and is not restricted under the P and PIP Act. (emphasis in original)
3. The applicant stated that he sought the following orders: (1) An order that all papers provided in the first NCAT hearing become part of this second NCAT Application; (2) In the interests of (his child's) mental health, an order of privacy such that the record of this case is not publicly displayed. It is common ground between family and school that (his child) suffers significant anxiety and that this has been on school records for 2 years; and (3) We seek an order to NSW DET to follow their own Policy and the law, and provide us with the evidence on which the Principal relied in her decision to suspend (his child).

Procedural matters

1. On 23 December 2022, the Information and Privacy Commissioner notified the Tribunal that he did not intend to appear in the matter.
2. On 16 January 2023, Senior Member Higgins conducted a case conference, at which the applicant appeared in person and Ms J Pendergast appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, which prohibited the publication or broadcast of the name of the applicant and his child. The Senior Member also made the following notations: The respondent has agreed to provide the applicant with a redacted copy of the withheld information in the five student notes by 6 February 2023. A copy of these redacted notes should also be provided to the Tribunal before the next case conference. Ms Pendergast, on behalf of the respondent, has also agreed to make enquiries if a more lengthy video recording of the incident is held by the Department. She will inform the applicant the result of her enquiries and if access can be granted in another form. At the next case conference, the applicant will inform the Tribunal if he presses his application for access or whether he wishes to discontinue his application.

Further decision of the respondent

1. On 6 February 2023, the respondent issued a Notice of Further Decision under the GIPA Act and decided to provide access in part to the information sought in the GIPA request.
2. The respondent referred to the disputed video and noted that during the case conference on 16 January 2023, it agreed to make further enquiries about whether it held a lengthier video recording of the incident and whether access could be granted in another form. Further enquiries were made on 17 January 2023 and a response was received on 31 January 2023. The respondent stated, relevantly: I confirm the video recording of the incident which was confidentially provided to NCAT is the only recording held by the department. I further confirm that to the department's knowledge there does not exist a lengthier version of the video. However, the department notes that the applicant may be under this impression due to the fact that it was shown several times to (his child's) grandfather when he attended the school for a viewing of the video recording.
3. The respondent also stated that a further one page of information has been identified by the school as being relevant to the GIPA request. After identifying the personal factors of the application, the respondent stated: Further, the department is on notice that there are third parties who have raised concerns over the disclosure of their statements and opinions. These personal factors are relevant to determining whether there is an overriding public interest against disclosing the information to you.
4. The respondent decided that this further document contained information that was confidential and could reasonably be expected to prejudice its functions. It therefore decided not to provide the applicant with access to that document. In making that decision, it identified the following public interest considerations:

Considerations in favour of disclosure: 1. There is a general public interest in favour of disclosure (s 12(1)); and 2. Disclosure of the information could help you to understand the procedures and processes of the investigation of your complaint.

Considerations against disclosure:

1. Disclosing the information could reasonably be expected to have one or more of the following effects: (1) Prejudice the future supply of confidential information that facilitates the effective exercise of the department's functions (item 1(d) of the table to s 14(2)); and (2) Prejudice the effective exercise of the department's functions (item 1(f) of the table to s 14(2)).
2. The respondent stated that the disputed documents were handwritten statements, outlining young persons' accounts of an incident and that the information was gathered for the purpose of the management of school issues and complaints. The respondent's primary function is to provide educational services to students in government schools and this includes managing school issues that arise from the day to day operations of the school, which can include management of student behaviour and investigating allegations that concern the wellbeing of students.
3. The respondent also stated that its executive officers need to be able to freely discuss, discretely and honestly, how to best manage and resolve various sensitive issues affecting the wellbeing of students and operations of the school. Similarly, students need to be able to freely and openly discuss with its staff any issues that they consider sensitive, in confidence. If the records of discussions concerning students are released in full, the respondent's ability to perform its day to day functions may be seriously impaired. Staff and students may become reluctant to seek assistance when managing or reporting sensitive issues. This may inadvertently create more work for school staff, taking them away from their core duties, and ultimately affecting the quality of education for other students as well. It benefits from individuals supplying information to management, particularly in relation to student wellbeing. If it infringes upon this confidential process by releasing the information in full, it is reasonably likely to prejudice the supply of confidential information from those individuals and other people in the future and prejudice the integrity of investigations and supply of information regarding student wellbeing. This would have a serious adverse effect on its functions at several levels.
4. The respondent stated that in applying the public interest test, it decided that maintaining confidentiality of the complaints process is necessary to enable it to manage student wellbeing effectively. The capacity to receive and secure confidential information is essential in managing risks and student wellbeing in schools. If the protection of confidentiality expressed in its guidelines is set aside in response to a request under the GIPA Act, it would be perceived as being incapable of properly handling sensitive information. The respondent also stated, relevantly: I recognise that the information is related to you and your child and that the information may be relevant to your concerns. The GIPA Act is generally in favour of disclosing government information. as such, the weight of the public interest considerations in favour of disclosure in this matter is not trivial. I have released some information which does not harm the department's functions and breach the confidentiality of other people involved. In balancing the relevant public interest considerations, I have considered the factors in favour of release, in particular that most of the information is about your child and the information may assist you in some way. These are strong factors in favour of release, and under this decision, the majority of the information is disclosed to you. However, in considering the factors against release, and after considering the gravity of releasing such information and the negative impact of release upon the department's functions, and balancing it with the public interest in favour of release, I find that the public interest against disclosure considerably outweighs the public interest in favour of disclosure. As such, I conclude that there is a strong overriding public interest against disclosure, and I have decided not to provide you with access to those parts of the records being confidential information, which could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the department's functions and provide you with access to the remainder of the information.
5. The respondent decided that the disputed documents and the video of the incident contain personal information of third parties and it decided to maintain its refusal to grant access to the video under s 58(1)(d) of the GIPA Act, as it contains the personal information of third parties whose faces cannot be de-identified because it does not have the resources to do this.
6. The respondent also stated: I have viewed the video recording of the incident and confirm that it does contain footage of what appears to be one student bringing scissors to another student's hair and proceeding to make a cutting motion. The video recording does have sound but only background noise can be heard. The video recording is not date stamped. The incident appears to take place in a classroom, students appear to be sitting at their desks, some with their laptops on their desk. It appears that your child is child 2. Child 1 is recording the video. Child 2's arm is already in frame and holding a pair of scissors. Child 3 is sitting a table in front of children 1 and 2. Child 2 brings the scissors to child 3's hair and proceeds to move the scissors in a cutting motion towards the hair ends of child 3 and quickly removes their hand out of video frame. Child 1 moves the recording device away from child 3 and onto their lap. Child 1 moves the recording device back to child 3's hair and child 2's hand appears back into frame still holding the scissors. The video recording of the incident stops. The video recording of the incident, which the department holds, is not the original video taken by one of the students. Throughout the video recording held by the department, child 4's hand can be seen holding their phone while playing the original video. Whild 5's face is being reflected upon child 4's phone throughout the duration of the video which is exactly 3 seconds long. If the video recording of the incident is released to you, the identities of the other involved students could reasonably be ascertained. Taking into account the right to privacy of the other students, I have decided to refuse access to the video recording of the incident.
7. The respondent otherwise relied on the public interest considerations against disclosure that were identified in its decision at first instance.

Further procedural matters

1. On 13 February 2023, Senior Member Montgomery conduced a further case conference, at which the applicant appeared in person and Ms J Guignourd appeared for the respondent. The Senior Member noted that the respondent was to consult with relevant students and parents in regard to the request for release of the video and that if the matter is resolved before the next case conference, the application would be withdrawn. He listed the matter for a further case conference on 13 March 2023.
2. Senior Member Montgomery conducted a further case conference on 13 March 2023, at which the applicant appeared in person and Ms Guignourd appeared for the respondent. He made the following orders: (1) the respondent was to file and serve evidence, including statements, documents and submissions, by 3 April 2023; (2) the applicant was to file and serve evidence, including statements, documents and submissions, by 14 April 2023; (3) the respondent was to file and serve all evidence in reply, submissions and a summary of legal arguments by 28 April 2023; and (4) the matter was listed for hearing on 2 May 2023. He noted that if the parties agreed that the matter was suitable for determination on the basis of written material, the issue of whether the hearing should be vacated and the matter determined on the basis of the written material could be revisited.

The hearing

1. The matter came before me for an in-person hearing on 2 May 2023. The applicant appeared in person and his child's grandfather (whose name was recorded) also sought to appear "in order to support" the applicant. Ms Pendergast appeared for the respondent.

The reviewable decision

1. I am satisfied that the reviewable decision is that dated 6 February 2023.

Respondent's Opening Argument

1. Ms Pendergast stated that the disputed information is personal information of third parties and that after consultation, they have raised objections to its release. For this reason, redacted statements have been released to the applicant. However, it is not possible to release the video of the incident because it is not possible to anonymise the face of a child which almost fills the screen for its entire duration.

Applicant's Opening Argument

1. The applicant stated that the essence of this matter is that the respondent has resisted the release of the requested information for more than one year. He stated that he does not seek personal information relating to the other children, but he considers that some of the matters raised in relation to cll 1(d) and 1(f) of the table to s 14(2) of the GIPA Act are lacking in merit.
2. In relation to the video, the applicant complained that his child has never seen it, but that another child recorded the video on their phone and then posted it on a "private site". The original video was then deleted on the day that a copy was given to the school. However, other students have a copy of the video and it is therefore already in the public domain.
3. The applicant complained that the respondent gave inadequate weight to the health and welfare of his child. The incident was initially reported to the Schools Response Unit as an assault. His child subsequently left the school, but the information was not protected and the suspension was disclosed to the new school even though it had been overturned. He intends to apply to the respondent to have his child's record "expunged" and he considers that he cannot do this unless the respondent provides him with the video.

The evidence before the Tribunal

1. The respondent relied upon an Affidavit of Jessica Guignouard dated 3 April 2023. As the applicant did not object to its tender did not require the deponent for cross-examination, it was admitted into evidence and marked as exhibit "A".
2. I note that Ms Guignouard deposed that she is the R/Principal Right to Access Officer for the respondent and is responsible for processing internal and external review applications.
3. Ms Guignouard stated that after the case conference on 16 January 2023, she sent an enquiry to the Principal of the school about whether a lengthier version of the video recording was held. On 31 January 2023, the Principal replied that no other recording was held.
4. Ms Guignouard also stated that after the case conference on 13 February 2023, she asked the Principal to provide contact details for relevant third parties so that consultations could be conducted with them about possible release of the disputed information. She also sought assistance from the Director, Educational Leadership in facilitating the consultation process given the age and geographical location of the third parties. On 7 February 2023, the consultation process concluded and an objection to release of the personal information of one of the children was received.

Respondent's confidential evidence

1. The respondent also filed unredacted copies of the disputed documents and a USB drive containing the copy of the video that it holds. These were filed on a confidential basis and I reviewed them in Chambers after the matter had been reserved.

Legal principles and relevant legislation

1. The legal principles under consideration are not in dispute.
2. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
3. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

1. Section 9(1) of the GIPA Act relevantly provides: 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.
2. I am satisfied that the Decision dated 6 February 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
3. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
4. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
5. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
6. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
7. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
8. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
9. Section 14 relevantly provides: 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 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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
10. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
11. Section 14(2) of the GIPA Act provides: 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.
12. In this matter, the respondent relies upon cll 1(d), 1(f), 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act as public interest considerations against disclosure.
13. Clause 1 provides, relevantly: 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, …
14. Clause 3 provides, relevantly: 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
15. The respondent has relied upon these considerations as a basis for redacting information from the disputed documents and for refusing to release the video of the relevant incident to the applicant.
16. Section 53 of the GIPA Act provides: Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
17. Section 61 of the GIPA Act provides: Notice of decision to refuse to provide access Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following - (a) the agency's reasons for its decision, (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, (c) the general nature and the format of the records held by the agency that contain the information concerned.
18. Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
19. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

The scope of the GIPA Request

1. There is no dispute regarding the scope of the GIPA request.

Did the Respondent conduct reasonable searches?

1. The documentation before me does not disclose any dispute that the respondent conducted reasonable searches for information within the scope of the GIPA request.

Discussion

1. I have applied these principles to the current matter as follows.

Public interest considerations in favour of disclosure

1. In the reviewable decision, the respondent identified the following public interest factors in favour of disclosure: (1) There is a general public interest in favour of disclosure (s 12(1)); (2) The requested information is the applicant's child's personal information; (3) Disclosure of the information could help the applicant to understand the procedures and processes of the department; and (4) Disclosure of the information could inform the applicant about his concerns and its decision.

Respondent's submissions

1. The respondent argued that there is a degree of congruence between these considerations and they can be considered together in the "balancing" process. However, the public interest has already been largely met by the release of the majority of the requested information to the applicant. In those circumstances, these factors should be given limited weight in the balancing process for the purposes of s 13 of the GIPA Act.

Applicant's submissions

1. The applicant argued asserted that there is an additional public interest consideration in favour of disclosure, namely that the release of the disputed information is required to afford him procedural fairness and natural justice. He asserted that he would not be able to apply to the respondent to "expunge" his child's records unless he is either provided with the video or is given an opportunity to view it.

Respondent's submissions

1. In relation to "procedural fairness" and "natural justice", the respondent argued that the review of the Principal's decision to suspend the applicant's child is outside the scope of the current administrative review.
2. Further, on balance, a decision not to release the video to the applicant does not affect procedural fairness and natural justice with respect to the applicant's rights to appeal in relation to the "Student Behaviour Policy" (previously known as the "Suspension and Expulsion of School Students"). The applicant appealed against the suspension decision and the appeal was upheld and as a result, an annotation regarding the outcome of the appeal was included in his child's records.
3. The respondent concluded that the Tribunal should find that there is an overriding public interest against disclosure of the disputed information and that the Tribunal should affirm its decision dated 6 February 2023.

Consideration

1. I am satisfied that the public interest considerations in favour of disclosure that have been identified by the parties should be given substantial weight.

Respondent's submissions

1. With respect to the schedule of document to the reviewable decision, the respondent argued that redactions made to pages 1 and 5 were made under items 1(d) and (f) of the table to s 14(2) of the GIPA Act, but that cll 3(a), 3(b) and 3(g) of that table also apply to the redactions made in pages 1 to 5 (inclusive) of the disputed documents.
2. The respondent argued that the redactions in the disputed documents were made in accordance with cll 3(a) and (b) of the table to s 14(2) because the information comprises the personal information of the third party students who provided statements to the respondent.
3. The respondent referred to the Tribunal's decision in FNJ v Commissioner of Police (NSW) [2022] NSWCATAD 130 (FNJ), at [109.5], which found that granting access to personal information, including that of children, would contravene s 18(1)(a) of the PPIP ACT on the basis that the disclosure would not be in alignment with the purpose for which the information was collected.
4. In any event, the respondent stated that it had consulted with the parents of the third party children regarding the potential release of the disputed information and that it had been notified of an objection. On that basis, the public interest against disclosure of the disputed information "is compelling".
5. In relation to item 3(g), the respondent argued that the redacted information is information about a child that was provided in confidence by a child and that its disclosure would not be in the best interests of the child: see FNJ at [109]. The respondent submitted, relevantly: 39. Item 3(g) is concerned with the interests of the child, in a broad sense, and is not to be construed in the contest of the specific child to which the information relates (Medlyn v Commissioner of Police [2020] NSWCATAD 125 (at [115]-[116]); Commissioner of Police v DYD [2020] NSWCATAP 224 (at [61]); and EHW v Secretary, Department of Education [2022] NSWCATAD 140 (EHW) (at [169]). 40. The respondent submits that the release of the information to the applicant is not in the best interest of the third party child as the likelihood of them being identified as the person who informed the Principal, is likely to have a negative impact on the student's learning and their relationships at school. 41. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 (Miskelly), the Tribunal accepted that the disclosure of information relating to serious incidents occurring in schools, whether the information related to children either as a victim, or a person of interest in relation to the incident, would not be in the best interests of the child. The likelihood of the child being identified as being involved in the incident was likely to have a negative impact on the student's learning and their relationships at school (at [106]).
6. With respect to the video, the respondent noted that the image of the face of a third party child is embedded in it. While this may be characterised as "personal information of the applicant's child, insofar as it is "information or an opinion" about her, it is also personal information of the third party child whose face is so embedded.
7. The respondent noted that the applicant stated that he is not seeking the names of the third party children, the image of the third party child seen in the video is included in their "personal information'.
8. The respondent argued that in Ansoul v City of Sydney [2017] NSWCATAD 65 (Ansoul), the Tribunal found that redaction of names would not address concerns about the release of personal information, as the report contained other information that would lead to the identity of the individual being relatively easily ascertainable, particularly if the reader was a person familiar with the personnel involved (at [50]).42.
9. On that basis, the respondent argued that significant weight should be given to the privacy and protection of the personal information of the children involved in the incident and its reporting, including "aspects of their conduct at school…": Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 (at [67]); EHW … (at [170]). It is also "difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA Act application": Miskelly at ([127]); EHW (at [170]).
10. The respondent argued that if the disputed information is released to the applicant unconditionally, it may then be viewed by any person who could easily identify the third party child who is seen in the video and this would not be in the best interest of that child.
11. The respondent relied upon the Tribunal's decision in Danis v Commissioner of Police (NSW) [2020] NSWCATAD 138, in which the Tribunal considered cl 3(g) of the table to s 14(2) of the GIPA Act in the context of information that was provided to police in confidence by a child. The Tribunal clarified that the concern was not so much with release of information to the applicant in particular, but having regard to the unconditional nature of release.

Applicant's submissions

1. The applicant argued that the respondent's arguments in support of the public interest considerations against disclosure were "specious" and "paltry". He specifically disputed that the respondent lacks the resources to de-identify the third party face shown in the video "since almost every high school in the state has such resources". He stated that this is "common knowledge".
2. The applicant also argued that the respondent has "at every opportunity applied a wide interpretation and use of the Privacy and Personal Information Act… so as to support its resistance to disclosure". He referred to the "victim" involved in the incident by first name and argued that as she reported the video to the school, her motive for doing so "can only have been to seek some follow up action by senior staff, it is obvious she had not expectation of confidentiality."
3. The applicant also argued that it is not the practice of schools to imply or provide confidentiality to students being questioned about everyday disciplinary matters and that no such expectation is expressed in the Teachers Code of Conduct, the Student Welfare Policy or in teacher training. Therefore, the exception of s 18(1)(b) of the PPIP Act applies, as "students are well aware" that information of this kind "is usually disclosed".
4. The applicant also argued that the facts in this matter closely resemble those in Davis v Secretary, Department of Education [2022] NSWCATAD 55. In that matter, the applicant was a teacher who sought information about colleague teachers who had complained about him. Senior Member Montgomery stated that the fact that the applicant had left the school was a matter for consideration in disclosure decisions. On that basis, the applicant argued that the fact that his child no longer attends the school is a relevant factor for the Tribunal to consider.
5. The applicant also argued that the respondent had given "inadequate weighting" to his personal circumstances of the application, including that his child suffers from chronic anxiety and that he is unsure of the effects of the quashed suspension on her future wellbeing. He also asserted that access to the unredacted information was required in the event that access to it might be required in future, as "it is likely to be declared 'unfindable' by an often restructured DET". In any event, he concluded that "full disclosure "was a matter for the public good".
6. In relation to the video, the applicant argued that his child was the victim of an "unwarranted, quashed suspension" and had suffered "reputational and health" damage and the drawn-out nature of the GIPA process continued to impact negatively his child. He asserted that the video "still exists within the school community" and numerous other students have seen it, but his child has not seen it, and this "continues the victimisation in her mind" and "amounts to systems abuse".
7. The applicant also sought to dispute the description of the video provided in Exhibit A on the basis that this was "at odds" with the child's grandfather's view (he had seen it in the Principal's office on the day after the incident occurred"). He concluded that the child who made the complaint to the school was not in danger and this weighed heavily in favour of a decision to disclose the video.

Respondent's submissions in reply

1. The respondent argued that the Tribunal should give the applicant's assertion that release of the disputed information would not have a negative impact on the students' learning and their relationships at school because his child is no longer at the school, should be given little weight. It argued that the prospect of a detrimental impact of release on the third party children's relationships remains a real possibility because they live and interact in the same community.
2. In response to the applicant's assertion that the video is still being viewed within the community, the respondent stated that it has no knowledge of this and if a version of the video is in circulation, it is not the copy/ version that it holds.
3. In reply to the applicant's arguments regarding procedural fairness and natural justice in relation to the suspension process, the respondent stated that a review of the suspension decision is outside the scope of the current administrative review.
4. While the applicant argues that he needs to be provided with a copy of the video, or be given an opportunity to view it with respect to future proposed actions regarding the suspension decision, granting him access would reveal the identity and personal information of a third party child.
5. The respondent stated that on balance, the applicant's rights to procedural fairness and natural justice rights regarding any potential action in relation to the implementation of the Student Behaviour Policy (then known as Suspension and Expulsion of School Students) are not adversely impacted if the video is not disclosed under the GIPA Act. The fact is that the applicant had a right to appeal against the suspension decision, which he exercised, and the appeal was upheld. As a result, an annotation of the outcome was placed in his child's school records.
6. For these reasons, the respondent concluded that the Tribunal should conclude that there is an overriding public interest against disclosure of the disputed information and affirm its decision dated 6 February 2023.

Consideration

1. In relation to the disputed documents and the, I have perused the unredacted documents and the video that the respondent filed with the Tribunal on a confidential basis.
2. In relation to the disputed documents, I am satisfied that each of the students who were involved in the relevant incident and/or its reporting, provided the respondent with handwritten statements, each of which clearly names the author and sets out their views and opinions regarding the incident.
3. In my view, the respondent has properly relied upon cll 1(d) and 1(f) of the table to s 14(2) of the GIPA Act and I reject the applicant's submission that reliance on those provisions is "specious", and that because the incident was reported to the school by "the victim", she had no expectation that her complaint would be subject to confidentiality.
4. In my view the applicant's arguments and assertions regarding cll 1(d) and 1(f) are misconceived and it appears that he has confused the release of the disputed information within the respondent, for the purposes of effectively managing its disciplinary processes, with disclosure of the information externally under the GIPA Act.
5. I am also satisfied that the respondent properly relied upon cll 3(a), 3(b) and 3(g) of the GIPA Act with respect to the disputed documents.
6. I note that the applicant states that he is not seeking the "personal information" of other students, but that he argues that the respondent adopted "an excessively wide if not incorrect interpretation" of s 18 of the PPIP ACT. In particular, he asserts that "personal information" is defined in sch 4 cl 4 of the GIPA Act and that while this refers to information "about a person whose identity is known or easily findable", it does not include information about the "the identity of a person".
7. In my view, this argument is misconceived and I am satisfied that "personal information about a person" includes information about their identity.
8. I also reject the applicant's argument that s 18(1)(b) of the PPIP ACT enlivens an exception to cll 1(d) and 1(f), because "the victim" "is likely to have been aware that the information that has been redacted is of a kind that is "usually disclosed."
9. There is no evidence before me that supports a finding that any of the third party students were aware that "it is not the practice of schools to imply or provide confidentiality to students being questioned about everyday disciplinary matters" and/or that they were "well aware" of this.
10. By operation of s 73 of the GIPA Act, access to information is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. There is no evidence before me that supports a finding that any of the third party students, who are children, would have expected that the disputed information would be released to the world at large.
11. In relation to the decision in Davis, I note that Senior Member Montgomery considered the application of cl 3(f) of the table to s 14(2) of the GIPA Act in circumstances in which the applicant (an adult teacher) sought information regarding fellow teachers who had made complaints about him. At para 166, the Senior Member found that as the applicant had left the school, the risk of harm or of serious harassment or serious intimidation to any of the individuals who provided information to the investigation was minimal. On that basis, he held that the respondent had not established that cl 3(f) applied.
12. In this matter, the respondent did not rely upon cl 3(f) and while the applicant argued to the effect that Davis is authority for the proposition that the fact that his child has left the school is a relevant consideration in the disclosure decision.
13. In my view, the decision in Davis does not assist the applicant as Mr Davis an adult school teacher, and not a child, and the Tribunal did not consider the operation of cl 3(g), which is specifically relied upon in this matter.
14. The applicant did not make any specific submissions regarding the operation of cl 3(g) and/or how the disclosure of the disputed information would be in the best interests of the third party children.
15. It follows that the public interest considerations relied upon by the respondent, namely cll 1(d), 1(f), 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act are established, and in my view they should be given substantial weight. Clauses 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act
16. In relation to the video, having viewed the footage I am satisfied that the description that the respondent set out on pages 5 and 6 of the decision dated 6 February 2023 is accurate.
17. There is no evidence before me that supports a finding that it is possible to edit the video so as to de-identify the face of the third party student.
18. For the reasons provided in relation to the disputed documents, I am satisfied that the public interest considerations arising under cll 1(d), 1(f), 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act apply to the video and that these factors should be given substantial weight.
19. In any event, I note the applicant's submission that the video is already in the public domain as other persons hold a copy of it. If that submission is accurate, it should be possible for the applicant to obtain a copy of it outside the operation of the GIPA Act.

Where does the balance lie?

1. Section 13 of the GIPA Act requires the Tribunal to consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under s 55 of the GIPA Act.
2. I agree that there is a general public interest in favour of disclosure and that other additional considerations in favour of disclosure also apply. As I have indicated, I am satisfied that the public interest considerations against disclosure that the Respondent identified are applicable to the disputed information. In each case I have indicated that the consideration against disclosure should be given significant weight.
3. I have agreed with the Respondent that: 1. the personal information in issue is of a sensitive nature and that the information was supplied under conditions of confidentiality; 2. the likely prejudice that would flow should information of this nature be disclosed; 3. the effects this would have on the ability of the Respondent to protect the welfare and wellbeing of students and staff; and 4. Disclosure of the disputed information would not be in the best interest of the third party children.
4. I note that the respondent has already disclosed a significant amount of the requested information to the applicant. In my view, the release of the disputed information would do little to further promote the public interest.
5. When a balancing exercise is undertaken between the factors in favour of disclosure and the factor against disclosure of the information, it is my view that greater weight should be given to the public interest consideration against disclosure.
6. In relation to the video, I am not satisfied that it could be redacted so as to remove the face of the third party child, which features throughout its duration, so as to reduce the weight to be given to the public interest considerations against disclosure and thus allow it to be released to the world at large.
7. It is also necessary to consider whether the applicant should be permitted view-only access to the video.
8. I note that s 72(2)(d) of the GIPA Act provides that an agency must provide access in the way requested by the applicant unless "there is an overriding public interest against disclosure of the information in the way requested by the applicant."
9. I note that the respondent refused to allow the applicant to view the video on the ground that as a parent of a child who was involved in the involved in the recorded incident, he could identify the third party child whose face is seen in the video. In my view, this is a valid public interest consideration against disclosure that should be afforded significant weight and there is an overriding public interest against allowing the applicant view-only access to the video.

Conclusion

1. Section For these reasons, I am satisfied that the correct and preferable decision is to refuse to grant the applicant access to the disputed information.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2023