FZC & FYX v Secretary, Department of Communities and Justice

NCAT Administrative and Equal Opportunity|2024-10-29

/00294775 Publication restriction: Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the applicants and any children in contained in the evidence is prohibited.

REASONS FOR DECISION

The issue for determination in this matter is whether there is an overriding public interest against disclosure of certain information the applicants seek to obtain under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act").

Background

In 2022, a child aged 10 years was in the care of FYX, the second of the two applicants in this matter ("Second Applicant"). There were allegations of physical and psychological abuse of that child during a visit to the property of the first applicant, FZC ("First Applicant"). Both applicants deny the allegations. The allegations were that the child in question had been confined within an enclosed space as a "form of discipline" by the Second Applicant. The allegation against the First Applicant was one of inaction.

Applicant's right to information

The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). It is, however, to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). Whether or not there is a conclusive presumption against disclosure is in issue in the present matter. Where there is no such presumption, the considerations listed in the Table under s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).
The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act).
What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to refuse to provide access to information in response to an access application (including such a decision that is deemed to have been made) (s 80(d) of the GIPA Act).
An "agency" is defined in s 4(1) of the GIPA Act to include a "Public Service agency". A "Public Service agency" in turn is defined in the Government Sector Employment Act 2013 (NSW) to include a "Department". A "Department" means a Department of the Public Service listed in Part 1 of Schedule 1. The Department of Communities and Justice is listed in that schedule. The Respondent, as a result, is an "agency".
An agency has, therefore, made "reviewable decisions" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decisions" being the decision to refuse to provide access to information.
The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
The provisions of the GIPA Act referred to above apply where the applicant has made a valid "access application" seeking "government information". It is not in dispute that each applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act).
The Respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act).

Consideration

The Respondent submits, first of all, that some of the information withheld is information which is conclusively presumed to be subject to an overriding public interest against disclosure. The balance of the information withheld is, in the Respondent's submission, subject to an overriding public interest against disclosure by application of s 13. This is because the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The applicants however submitted that there is neither any applicable conclusive presumption of an overriding public interest against disclosure nor that the applicable public interest considerations in favour of disclosure outweighed those against disclosure.

Conclusive presumption

Section 14(1) of the GIPA Act provides as follows: "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".
Clause 10 of Schedule 1 of the GIPA Act provides as follows: "10 Care and protection of children It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies."
Section 29 of the Children and Young Persons Care and Protection Act 1998 (NSW) ("Care Act") provides as follows: "29 PROTECTION OF PERSONS WHO MAKE REPORTS OR PROVIDE CERTAIN INFORMATION (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons-- (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil or criminal liability against the person making the report, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings)-- (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013 , (v) proceedings under the Coroners Act 2009 , and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with-- (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person".
The provisions set out in clause 10 of Schedule 1 of the GIPA protect the disclosure of information contained in a report to which s 29 of the Care Act applies. If the information the applicants seek is to be found in such a report, there will be a conclusive presumption against disclosure of that information.
The kinds of reports falling within s 29 must be made "in relation to a child or young person or a class of children or young persons". Secondly, the report must relevantly be made to the Secretary or a person "who has the power or responsibility to protect the child or young person or the class of children or young persons". Thirdly, the report must be made in "good faith".
To the extent that the document in dispute is in relation to the child in question, it answers the first part of the description within s 29. That is, it is in relation to a child or young person or a class of children or young persons.
The recipient must be the Secretary or a person who has the power or responsibility to protect the child or young person or the relevant class of children or young persons. There was no dispute that the Respondent is such a person. To the extent that the report in question was made to the Respondent, it is therefore made to a person of a kind described in s 29.
The third requirement is that the report in question must have been made in "good faith". Relevantly, in Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13, the Tribunal said, at [41], "…. the Tribunal's task in determining whether the disclosure of the information, sought to be protected under the clause 10 conclusive presumption against disclosure, is to decide whether the 'characteristics' of the information in issue is of a kind described in that clause. That is, the question is whether the information in issue can be characterised as a report which section 29 of the Care Act applies - namely, a report made under section 24, 5, 27, 120, 121 and 122 of the Care Act. In my view, the Tribunal is not also tasked with conducting an inquiry as to the motivations of the reporter(s) at the time he/she made his/her report. If it was accepted by the respondent as having been made in good faith this should be accepted by the Tribunal, unless there is evidence of a contrary finding by a court or another relevant body".
Accordingly, in the Respondent's submission, if it is accepted by the Respondent that the relevant report was made in good faith, then subject to any contrary finding of a court or other relevant body, the Tribunal must accept this characterisation of the report. The Respondent's evidence is that it accepted the report in question in good faith.
In Dewhirst, the Tribunal said, at [42]: "The agency must nevertheless place sufficient material before the Tribunal to justifies its decision that the 'characteristics' of the information in issue is of a kind described in section 29 of the Care Act. This can be done in a number of ways. For example, by placing evidence before the Tribunal of the systems it has in place for collecting and retaining information of the kind in issue and evidence that the information in issue was collected and continues to be retained by the agency as being a report to which section 29 of the Care Act applies. Whether such evidence is sufficient to discharge the respondent's onus will depend on the circumstances of each case".
The Respondent describes the process by which the report was made. Mr Sebastian James, on behalf of the Respondent, sets out in an affidavit of 19 January 2023 evidence of the process surrounding an investigation of a claim of child abuse. He says that the Respondent's case workers are specifically trained to conduct investigations under the Care Act. The investigation in question was made by the Respondent's personnel in the course of a specific investigation into allegations of child abuse. The report resulting from the process, in my opinion, is a report within the scope of the Care Act and that it was made in good faith.
I acknowledge that the applicants record their dissatisfaction with various matters surrounding the investigation in this matter and the making of the report. While that dissatisfaction may be genuine, I do not find that there are sufficient grounds to overturn the evidence of the report having been made in good faith.
The determination of whether the report in question was made in good faith or not, does not require that the conclusions in the relevant report later be substantiated. Nor does it require that the factual material set out in the report be proved under the applicable standard of proof, following any subsequent investigation or proceedings. All that is required is that the report must have been made in good faith. I have found no reason to indicate that the report was not made in good faith, notwithstanding the applicants' dissatisfaction with the report and the processes surrounding the making of the report.
The report in question must fall within the definition of what is a "report". Section 29(6) sets out the relevant definition to include certain specific kinds of reports. It specifically includes a report under s 24 of the Care Act. That provision provides as follows: "Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary".
The applicants submit that in the circumstances of the matter, s 24 could not apply. This is because s 24 refers to circumstances where there are "reasonable grounds" to suspect that there is a risk of "significant harm". The applicants' submission was that there were no such grounds. The applicants relied on what they consider to be the unreliability of the testimony of the informants in this matter that, in their submission, impaired the reliability of the relevant report. The applicants also submitted that the relevant test would not have been satisfied if the Respondent had been provided with the additional evidence contained in their applications and annexures placed before the Tribunal. The applicants further indicated that they had not been given the opportunity to make such a submission during the investigation.
Section 24 applies where there is "suspicion" of a risk of significant harm. Suspicion, in its ordinary meaning, captures "the act of suspecting; imagination of the existence of guilt, fault, falsity, defect, or the like, on slight evidence or without evidence" (The Macquarie Dictionary (online)). What follows is that little is required for a suspicion to arise. Suspicion may arise even where there is a lack of evidence.
The risk that is suspected must be one of significant harm. "Harm" in its ordinary meaning is "injury; damage; hurt" (The Macquarie Dictionary (online)). "Significant" means "important; of consequence" (The Macquarie Dictionary (online)). What follows is that the harm in question cannot be trivial. It must be consequential.
The Respondent could, in opinion, find that there were reasonable grounds for a suspicion within the meaning of s 24. There is no requirement that the circumstances giving rise to what was thought to be a risk of serious harm be provable as a matter of evidence for the purposes of s 24. All that is required is reasonable grounds for suspicion. The risk of harm that was the subject of suspicion was, in the present circumstances, not trivial but significant, including as it did, reports of harm of a physical nature and the restraint of a child within a confined space.
That information giving rise to the relevant suspicion includes the testimony provided to the Respondent by three children. Despite the matters raised by the applicants as to the credibility of that testimony, the information placed before the Respondent, in my opinion, is sufficient to allow the Respondent to accept that there were reasonable grounds for the relevant suspicion. What is required is a suspicion of the risk of significant harm and not proof on the balance of probabilities of that risk.
The applicants refer to the absence of medical reports on the physical and psychological state of the complainant. They submit that these are matters that may impugn his testimony and the reliability of the report made. I do not accept that such expert reports are necessary in order to reach a conclusion that there are reasonable grounds for a suspicion of the kind to which s 24 applies. While such reports about a witness may have value in proving the credibility of the testimony of a witness, reasonable grounds for a suspicion can arise with something less than proof at the required standard.
The operation of s 24 should not be limited by placing unduly onerous obligations of proof of the matters of fact that make up the grounds for the relevant suspicion. Doing so would defeat the purpose of the provision, namely to allow a means for reporting based only on reasonable grounds for a suspicion, without putting the reporter or the recipient of the report to proof of the grounds for that suspicion under the applicable standard of proof, as a condition for making or receiving the report. The existence of reasonable grounds to suspect significant harm could occur, in my opinion, even in circumstances where following investigation and determination of the matter, it is found that no provable evidence of such grounds are in the end found to exist. What is required is simply reasonable grounds for the relevant suspicion.
Section 29(1A) of the Care Act includes the following provision for certification. "A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report".
The Respondent relies on a certificate applicable to the report in question. The certificate is issued by Mr Sebastian James, on behalf of the Respondent. Mr James is Director, Community Services for the Illawarra and Shoalhaven District of the Respondent. He has held management and executive roles in the public service since 2003. His certificate states that the document identified in the Schedule to the certificate is the same document which the Respondent submits is subject to clause 10 of Schedule 1.
The Tribunal may review material that was subject to a s 29 certificate in order to ascertain whether the material was in fact properly the subject of a conclusive presumption of an overriding public interest against disclosure (Adams v Department of Family and Community Services [2016] NSWCATAD 46, at [22]). A non-redacted version of the document needs to be reviewed (FLF v Children's Guardian [2022] NSWCATAD 380, at [59]).
The applicants submitted that the Respondent had not provided Mr James with an opportunity to make a thorough and independent decision as to the appropriateness of signing his certification. Having reviewed the evidence, including the report in its unredacted form, I am satisfied with Mr James' certificate. It does not alter the conclusions that I have reached as to the application of clause 10 of Schedule 1. I find nothing in the further materials produced by the applicants after 10 September 2023 or prior to that date, to impugn Mr James' certificate.
It follows that the report in question falls within clause 10 of Schedule 1 and as a consequence, there is a conclusive public interest consideration against disclosure of the report.

Considerations for and against disclosure

The remaining information withheld is, in the Respondent's submission, subject to an overriding public interest against disclosure by application of s 13, because the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The well-established approach to making the required determination is the two-step process outlined in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] - [25], relevantly that: "Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. … The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…".
Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure: "(a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information".

Considerations in favour of disclosure

The Respondent identified a number of considerations in favour of disclosure. They included the following: 1. the statutory presumption in favour of the disclosure of government information 2. the general right of the public to have access to government information held by agencies 3. the information is personal of the person to whom it is disclosed 4. disclosure could reasonably be expected to promote open discussion of public affairs, enhanced government accountability or contribute to the positive and informed debate on issues of public importance 5. disclosure of the information could reasonably be expected to inform the public about the operation of agencies, and in particular, their policies and practices for dealing with members of the public 6. disclosure of the information could reasonably be expected to reveal or substantiate that an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct 7. disclosure could reasonably be expected to advance the fair treatment of individuals in accordance with the law in their dealings with agencies 8. disclosure could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision.
The applicants for their part raised a number of matters in favour of disclosure. They included the specific grounds that disclosure of the information could reasonably be expected to reveal or substantiate that an agency or a member of an agency has engaged in misconduct or negligent, improper or unlawful conduct. In addition, in the applicants' submission, there were public interest considerations in favour of disclosure because of the benefits of ensuring that the applicants and future carers who had been wrongly determined to have carried out child abuse are provided with full disclosure, in order to allow for exercise of rights of appeal, based on a thorough knowledge of the material that was before the Respondent's investigatory committee. They also raised questions as to the proprietary of government committees operating in secret.
The Respondent submits in reply that the applicants have not provided any evidence that the Respondent has engaged in misconduct or negligence, improper or unlawful conduct. While accepting that the applicants were aggrieved and disagreed with the findings of the Respondent's child protection investigation, the Respondent submitted that their submissions and evidence did not demonstrate the requisite evidentiary basis for the "very strong finding" that the Respondent has engaged in misconduct or negligent or improper or unlawful conduct. The Respondent further submitted that the current proceedings are not the appropriate forum to ventilate these issues.
The Respondent further submitted that this consideration ought to be given little weight as the applicants do not have any rights of internal or external review under the Care Act in relation to the Respondent's investigation. The Applicants on the other hand set out various rights of review that they submit they have.
The applicants also referred to certain provisions of the International Covenant on Civil and Political Rights. They included provisions dealing with equality before the courts and tribunals (Article 14) and arbitrary or unlawful interference with a person's privacy, family, home or correspondence and unlawful attacks on honour and reputation (Article 17).

Considerations against disclosure

Clause 1 of the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides: "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, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".

Clause 1(d) prejudice the supply to an agency of confidential information

The requirement that disclosure could reasonably be expected to have one or more of the relevant effects was considered in Forbidden Foods Pty Ltd v Rice Marketing Board of NSW [2020] NSWCATAD 18. The Tribunal said at [67]: "In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table to s 14, referring to Searle and the authorities discussed in that decision, and held: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Clause1(d), firstly requires that the information in question be "confidential". Secondly, it must be information that facilitates the effective exercise of the agency's functions. Thirdly, there must be a reasonable expectation that disclosure could have the effect of prejudicing the supply of that information.
The Respondent submits that the information withheld was provided confidentially by informants in the context of a child protection investigation conducted under the Care Act. In these circumstances, the Respondent submits that the conditions under which it received information from reporters and informants in the context of a child protection investigation are confidential. Therefore, in the Respondent's submission, the relevant information was provided under the strong expectation of confidence. The Respondent relied in particular on evidence given by Mr. James that there was a strong expectation from reporters that any information provided to the Respondent in the course of a child protection investigation under the Care Act will be kept confidential and used only and disclosed only by the Respondent for investigative purposes unless required by law. Mr. James also gave evidence that information reporters and informants are generally reminded that the information provided will be treated confidentially. His evidence is set out in his affidavit dated 19 January 2023.
The applicants on the other hand submitted that while some reporters were aware that their information will be kept confidential, particularly the Respondent's investigators and managers, this was not always the case with members of the wider community. The applicants submitted that there was no standardised operating procedure, guidelines or information sheets shared with informants and reporters or departmental policy to support the proposition of confidentiality of disclosure.
Whether information is "confidential information" must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts its services (Camilleri, at [33]). The information in question was received in the course of an investigation of a significant harm report in March 2022 regarding the alleged child abuse. I accept the evidence of Mr James that providers of information concerning children who are not personnel of the Respondent provide information on a confidential basis. The context of the statutory scheme under the Care Act governing reporting supports the proposition that a general expectation or requirement of confidentiality attaches to reporting (Care Act, ss 26, 29(1)(e) and (f) and 254).
There can be little doubt that information of the relevant kind, namely information concerning allegations of child abuse, is information that facilitates the effective exercise of the functions of the Respondent.
As regards the effect of disclosure, the Respondent submitted that disclosing information received in confidence from reporters and informants during a child protection investigation would prejudice the supply of confidential information both generally under the Care Act and otherwise, in future investigations.
The Tribunal in Collins v Department Finance, Services & Innovation [2018] NSWCATAD 60, said (at [63]-[64]): "… the Tribunal is to engage in a relatively abstract analysis. The Tribunal is to ask whether, as a matter of reasonable expectation, if material of the kind sought to be protected were released, could it prejudice the supply of similar material to government in the future. In this context the word 'prejudice' is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage'. It is not necessary that the decision-maker be satisfied that the release of the information will in fact prejudice the future supply of information. The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. The experience of the witnesses who expressed the relevant opinions is a significance factor".
Clause 1(d) is concerned with the future supply of confidential information In Jones v NSW Department of Education [2017] NSWCATAD 51, the Tribunal said, at [60]: "In determining whether disclosure would prejudice the supply of information, the test is not whether this complainant would in future refuse to supply that information but whether information of the kind in question facilitates the exercise of the Department's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [52]".
That the meaning of the word prejudice is to "cause detriment or disadvantage" or to "impede or derogate from" was accepted in Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [60]. What this means specifically in the context of reports of alleged abuse of children has been considered in a number of cases. In Saleam v Director General, Department of Community Services [2002] NSWADT 41, the Administrative Decisions Tribunal, at [61] made the following observations concerning child abuse notifications: "… in principle it is clear that child abuse notifications and the like if disclosed might prejudice the future supply of such information, by inhibiting people from coming forward for fear of being identified and then harassed or sued by the carer adversely affected by the notification. Ordinarily disclosure of such material would be contrary to the public interest".
Similar statements were made in Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43, at [66] and Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22, at [123].
Where there is no power to compel witnesses, the need to ensure that there are no inhibitions to providing the information that the Respondent needs to function, assumes greater importance. In McInnes v NSW Department of Education and Communities [2013] NSWADT 219, at [37], the Tribunal said: "Unlike some agencies, the Respondent has no power to compel non-staff - including former employees - to participate in investigations. It therefore must rely upon their goodwill. I accept that to encourage people to participate, it is important that the Respondent can offer people no longer connected to it an undertaking of confidentiality to the maximum extent allowable by law".
The applicants submit that it is highly unlikely that employees of the Respondent would be deterred in providing information as they have a duty to provide relevant information if they genuinely believe they are reporting risk of significant harm to children based on reasonable grounds. The applicants submitted that the test was whether the agency will be able to obtain such confidential information from relevant persons in the future, if the information in question is disclosed and is to be determined at a broad operational level (Camilleri, at [26]). The applicants submitted there was no concrete and substantial evidence that disclosure of information a year after the events the subject of the report in question, would prejudice the supply of further information to the Respondent. In particular, the applicants submitted that there was no evidence that the three children whose interview transcripts with the Respondent had been withheld would have refused to answer questions unless they knew their answers would be confidential, or if they did know and would not do so in the future or suggest to other children not to provide information.
It is well accepted that whether prejudice to the future supply of information would result from disclosure is to be determined on the basis of the circumstances at hand taken as a whole and not specifically on the basis of whether a particular person would be inhibited from the future supply of information (Selby v Commissioner of Police NSW Police Force [2013] NSWADT 61, at [52]). Whether the three children in question or any other person would be inhibited from providing information in the future does not determine the matter. Equally, even if there is no specific evidence that any particular threats of risk of harm, harassment or denigration of an informant arise, the question needs to be determined not on the basis of any particular threats that may or may not exist at a particular time from particular persons but having regard to the circumstances as a whole.
Having regard to all of the evidence at hand, I do not find evidence of any specific threats to informants. However, the matter needs to be determined at an abstract level. I accept the evidence of Mr. James, including his evidence of the general fears of informants and reporters of retaliatory actions that disclosure could place reporters or informants at risk of. What is required is not the existence of such prejudice but a reasonable expectation of such prejudice. I am accordingly persuaded that disclosure of reports of allegations of child abuse could prejudice the future supply of such information within the meaning of clause 1(d).

Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions

The operation of clause 1(f) requires, first of all, identification with some clarity of the function that will be prejudiced and how prejudice could arise (Murphy v Broken Hill City Council [2015] NSWCATAD 135, at [17]).
The Respondent submits, having regard to the evidence of Mr James, that disclosure of the withheld information would seriously prejudice the conduct of child protection investigations under the Care Act. The Respondent contends that the ongoing voluntary supply of information is vital for the effective conduct of investigations under the Care Act and that any prejudice to the supply of information seriously hinders its ability to investigate allegations of harm against children and young people. The Respondent submits that the evidence provided by Mr. James in this regard should be given significant weight because of his capacity and experience.
The applicants submitted that the Respondent had not provided any concrete or substantial evidence or any evidence that the disclosure of information a year later would prejudice the effective exercise by the agency of the agency's functions. The applicants submitted that Mr James' evidence was simply assumptions. The applicants further submitted that there was no evidence at any time over the last year that either applicant had harassed or threatened the complainant or the other two children (whose names and personal details they were fully aware of) or any relevant officer of the Respondent.
The Respondent in reply submits that the evidence of Mr. James regarding fears of informants and reporters of retaliatory actions or that disclosure could place reporters or informants at risk of harm, harassment or denigration, is not necessarily directed specifically at the applicants but rather reflects his general experience and expertise on the potential effects of disclosure of informant or reporter information. The Respondent, in particular, relies on the statements made in Camilleri that the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply the information in future, but whether the agency will be able to obtain such information in the future.
I accept that clause 1(g) requires consideration not merely of the specific circumstances and a particular time involving particular persons but consideration having regard to all of the circumstances, where relevant prejudice to an agency's operation can reasonably be expected. I accept the evidence of Mr. James of such prejudice. The test does not require that there be an actual finding of prejudice but a reasonable expectation of prejudice.

Clause 1(g) - action against agency

The Respondent submits that in addition to applying to disclosures that could reasonably be expected to found an action against an agency for breach of confidence, cause 1(g) also applies to disclosures which could otherwise result in the disclosure of information provided to an agency in confidence. I have found that the information sought by the applicants was provided to the Respondent in confidence (see [80] above). I do not therefore need to consider whether disclosure could found an action against the Respondent for breach of confidence but note in passing that it was unclear whether such action could, on the facts at hand, be founded. I therefore find that the considerations set out him clause 1(g) are applicable in the present circumstances, namely that disclosure could result in the disclosure of information provided to an agency in confidence.

Clause 3(a) - personal information

There is a public interest consideration against the disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing "personal information". In the GIPA Act, personal information is defined to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion" (Clause 4 of Schedule 4).
Section 15(b) of the GIPA Act provides that agencies must have regard to any relevant guidelines issued by the Information Commissioner when determining whether there is an overriding public interest against disclosure. The Information Commissioner's guidelines for personal information note that a person's name and information about a person's family life is personal information (Information Access Guideline 4: Personal Information as a public interest consideration under the GIPA Act, p 4). "Personal information" is also defined to include relevant opinions about people.
In the Respondent's submission, the information sought by the applicants includes identifying information about third parties, including the names, contact details, dates of birth and other information particular to their personal circumstances. It also includes opinions expressed about these persons in the course of the investigation. This information concerns persons other than the applicants and the First Applicant's partner.
The personal information in question, was in the submission of the Respondent, not known to the applicants and has not been publicly disclosed, with the result that disclosure will reveal the information.
The Respondent acknowledges that much of the withheld information is the applicants' personal information as subjects of the child protection investigation. However, in balancing the relevant considerations, the Respondent's submission is that they have attempted to provide the applicants with their personal information in a way which does not reveal or disclose the sensitive personal information of others or other information which is subject to an overriding public interest against disclosure.
The Respondent submits that the withheld information is also the personal information of other third parties involved with the child protection investigation, including reporters, informants and children. The Respondents submit that there is a much greater public interest in protecting the personal information of these third parties.
Even if the applicants already possessed considerable personal information as to the relevant children, the Respondent submits that the applicants do not possess the unique personal information that has been withheld by reason of clause 3(a). They further submit that the relevant question is not whether the applicants possess some general personal information about certain persons, but whether the specific information having regard to its unique context, would be revealed within the meaning of the legislation.
I accept the Respondent's submission that the relevant information in question is personal information within the meaning of clause 3(a). Even if that information includes personal information concerning the applicants themselves, that does not prevent the characterisation of the information concerning other persons as personal information appertaining to those other persons. Even if the applicants already have significant amounts of information concerning some of those persons, this does not provide a basis for disclosure of personal information that they do not have.

Clause 3(b) - information protection principles

The Respondent submitted that disclosure would contravene an information protection principle in s18 of the Privacy and Personal Information Protection Act 1998 (NSW) ("PPIPA Act"). Section 18 relevantly provides as follows: "18 LIMITS ON DISCLOSURE OF PERSONAL INFORMATION (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless-- (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it".
Section 18 prohibits the disclosure of relevant personal information unless an exception set out in that provision applies. The applicants submit that the prohibition against disclosure does not apply to withheld personal information of third parties because it is also the applicants' own personal information.
In reply, the Respondent submits that s 18 applies to the withheld personal information of third parties even to the extent it is also personal information of the applicants.
The Respondent further submits that disclosure would be clearly unrelated to the purpose for which the information was collected, being the purposes of child protection under the Care Act. The Respondent submits that it is entirely reasonable to conclude that the persons concerned would object to the disclosure of their information under the Care Act and that the Respondent had no reason to believe that the persons would not object to the disclosure. The Respondent further submits that the ability to disclose where the agency believes on reasonable grounds that disclosure is necessary to prevent or lessen a serious or imminent threat to the life or health of the individual concerned or another person is not relevant.
The applicants question the Respondent's submission that the persons concerned would object to disclosure in the absence of any evidence of such objection.
I accept the Respondent's submission as to the applicability of clause 3(a). I do not think that the presence within the information sought of the applicants' own personal information prevents the characterisation of that information as personal information of other persons. I accept the evidence of the Respondent that it has no reason to believe that the persons concerned would not object to disclosure. That belief appears reasonable where an expectation of confidentiality attaches to the information provided.

Clause 3(g) - best interests of child

The Respondent relied on the public interest considerations against disclosure of information relating to a child, where disclosure would not be in the best interests of the child. The Respondent submitted that this consideration applied to some of the information to which the applicants sought access. The information was described by the Respondent as personal information about children and young people involved in a child protection investigation. It was information about and opinions expressed about those children. In the Respondent's submission this was clearly personal information. It was not in the best interest of these children to disclose their personal information.
In EHW v Secretary, Department of Education [2022] NSWCATAD 140, at [169], the Tribunal noted that the relevant provision was concerned with the interest or more broadly, the rights of the child in a generic sense and not in the context of a particular child to which the information relates.
In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48, at [127], the Tribunal said it is difficult to see any circumstances in which the best interest of a child could be served by disclosure of the personal information in response to a GIPA Act application. The risk of harm to the interests of a child was obvious in such a situation. The Tribunal gave very strong weight to cl 3(g).
The Tribunal has found that the disclosure of personal and sensitive information given to the police in confidence by a child aged 10 years relating to an alleged physical assault is information that would not be in the best interest of the child to disclose (Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138, at [104]).
The Respondent submits that what the applicants may or may not do with the information is an irrelevant consideration because release is considered to be to the world at large (Danis, [104]).
I accept that disclosure of the relevant information sought by the applicants would not be in the best interests of the child concerned. I accept the reasoning of the Tribunal in the cases set out above. Exceptional circumstances would need to exist to conclude that disclosure would be in the best interests of the child. I see no such circumstances in the evidence before me.

Cl 6(1) - Contravention of secrecy provision

The Respondent submits that the disclosure of the withheld information would contravene the secrecy provisions contained in s 254 of the Care Act but for the operation of the GIPA Act.
The Respondent submits that the information withheld was obtained by the Respondent in the exercise of its child protection functions and therefore subject to s 254 of the Care Act. Mr. James formed this view based on his experience in child protection investigations as a director overseeing child protection investigations and his personal review of the matter at hand.
The applicants, however, question the Respondent's submission on the basis that certain information has already been released, notwithstanding the application of s 254. The Respondent replies that s 254 is not an overriding secrecy provision and is therefore subject to the public interest test in s 13 of the GIPA Act. In conducting the balancing exercise between considerations for and against disclosure, the Respondent determined that some of the information subject to s 254 was in the public interest to release. The remaining information withheld was withheld because, on balance, the highly sensitive nature of the particular information was reflective of a policy underlying s 254 that intends to be very strict in protecting the information the Respondent obtained under the Care Act. This meant that there was an overriding public interest against disclosure of that information. The Respondent also argued that the exceptions to s 254 were irrelevant considerations.
I accept that s 254 of the Care Act gives rise to a public interest consideration against disclosure for the reasons submitted by the Respondent. Despite release of some information notwithstanding s 254, that release does not prevent that the Respondent from relying on s 254 to protect other information that has not been released.

Personal factors

Section 55 of the GIPA Act allows the Tribunal to have regard to certain factors personal to the applicants when weighing the public interest for and against disclosure. I accept that the information that the applicants seek relates to their roles as carers and their interaction with a child under care, and as such, there is a personal factor that weighs in favour of disclosure.

Collateral purpose

The Respondent submits that the applicants were seeking to use the proceedings before the Tribunal, among other things, to conduct a de facto review of the Respondent's child protection investigation. The Respondent further submits that the Tribunal does not have jurisdiction to determine the merits or validity of the Respondent's child protection investigation. The Respondent refers to the decision of the Tribunal in Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, at [62] and Smith v Pittwater Council [2016] NSWCATAD 67, at [10]-[11].
The applicants on the other hand deny that they are seeking to use the proceedings to conduct a de facto review of the Respondent's child protection investigation.
The evidence is insufficient to allow me to conclude that the applicants have a collateral purpose. I do not therefore need to consider the matter further in determining this matter.

Consultation

The applicants made the submission that the Respondent ought to have consulted with certain persons pursuant to s 54 of the GIPA Act before providing access to information relating to these persons. The Respondent, on the other hand, submits that it is only required to consult with a person under s 54 before providing access to information relating to that person. Conversely, the Respondent is not required to and did not consult with persons when it refused to provide access to information relating to those persons.
I accept the Respondent's submissions as regards s 54. I do not see that whether consultation occurred or not affects the determination of this matter in these circumstances where no access was given to the information in question.
To the extent that the personal information in question is information released to them, the applicants submit that release of that information to them required consultation. If this was so, it is not clear how these circumstances are relevant to the question at hand, namely whether the applicants should obtain the information they did not get and now seek.

Balancing public interest considerations and against disclosure

The benefits of providing information to carers concerning their role as carers and in particular reports about them provided to the Respondent is an important public interest consideration in favour of disclosure. The role of carers of providing care to children is of considerable value and benefit to children in care and the community generally. The hard work of carers fulfills an important social need. The provision of information to carers serves the purpose of maintaining their confidence in the system under which children are placed with them. I place considerable weight on this consideration.
Some weight should also be accorded to the other factors in favour of disclosure set out at [70] above. I also attach some weight to the personal factors set out in section 55.
I do not place significant weight on the matters concerning the International Covenant on Political and Civil Rights in the absence of submissions as to how the articles in question are specifically relevant. The applicants were unclear as to how these matters were relevant to the circumstances of the case. They are aggrieved that they were not given an opportunity to present to the Respondent information they had during their investigation. However, it is not within the jurisdiction of the Tribunal to review the conduct of the investigation when hearing a matter under the GIPA Act.
There are weighty considerations going against disclosure of the information sought by the applicants.
I attach considerable weight to the grounds set out in clause 1(d), namely that the provision of the information sought could reasonably be expected to prejudice the supply to the Respondent of confidential information in the circumstances set out in that clause. I also place considerable weight on the grounds set out in clause 1(f), namely that that the supply of information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
In addition, I place very considerable weight on the consideration that disclosure would not be in the best interest of the child within the meaning of clause 3(g). I do not find the kind of exceptional circumstances may allow for less weight to be placed on this consideration.
I attach some weight to the consideration set out in clause 3(b), namely that provision of the information could reasonably be expected to contravene an applicable information protection principle. I also attach some weight to the considerations set out in clause 3(a), namely that disclosure could reasonably be expected to reveal personal information. I also place some weight on the considerations that disclosure would result in the provision of confidential information for purposes of clause 1(g) and also come within clause 6(1).
Balancing the factors going towards and against disclosure of the information sought by the applicants, the factors going against disclosure carry greater weight. Considerable weight attaches to the consideration in favour of disclosure set out at [128] above and some weight should be given to the other considerations referred to at [129] above. However, in my opinion, those considerations are outweighed by the multiple countervailing considerations that carry significant weight. They include the very considerable weight attaching to considerations going to the best interest of the child under clause 3(g) and the considerable weight attaching to matters concerning the effective operation of the agency under clause 1(f) and the supply of confidential information to the agency under clause 1(d).
The Respondent has compiled in numbered bundles of documents those documents that have been withheld and also parts of documents withheld by redaction. The particular provisions of the GIPA Act under which the document or redacted information was withheld are also noted on each document. I have reviewed each document in the bundle and the notations. Each document withheld and redaction involved more than one subject matter carrying considerable weight against disclosure. That weight, for each document and redaction, outweighed considerations in favour of disclosure.
The conclusions I have reached in considering the applicants' applications for government information depend on the outcome of the balancing exercise carried out above. While the evidence before me is sufficient to allow me to carry out the balancing exercise required under the GIPA Act, that exercise does not require me to make any findings of fact concerning the applicants' discharge of their responsibilities as carers and the allegations made. The outcome of the balancing exercise, therefore, does not give rise to the conclusion that there is proof of the matters alleged on the balance of probabilities. I do not, and cannot, on the evidence before me, make any adverse findings against either applicant or any other party.
As regards the various matters set out by the applicants recording their dissatisfaction with the conduct of the Respondent, I equally do not and cannot make any findings adverse to any party. Absent consideration of all relevant evidence, I am unable to do so. Review of the Respondent's conduct applying the requisite standard of proof is not required for carrying out the balancing task under the GIPA Act. Nor are proceedings under the GIPA Act the appropriate forum for ventilation of such matters.

Orders for disclosure

The applicants requested that the Tribunal disclose the identity of the maker of the reports in question pursuant to s 29(1)(f)(ii) of the Care Act on the basis that the Tribunal was satisfied that the evidence was of critical importance in the proceedings and that failure to admit it impinges upon the proper administration of justice.
The matter in issue under the GIPA Act is whether or not the information sought by the applicants in relation to the reports in question should be disclosed or not. This is a matter that falls to be determined under the provisions of the GIPA Act. The applicants have made no submission as to why the Tribunal should or could by reason of s 29(1)(f)(ii), depart from what it is required to do under the GIPA Act in these proceedings. I find no basis for the making of an order under s 29 overturning orders otherwise applicable in relation to the GIPA Act in accordance with the findings I have made, even if I had jurisdiction to do so.

Adequacy of searches

During the course of the proceedings, questions arose as to the adequacy of the searches carried out by the Respondent. Relevantly, the Tribunal may review a decision that an agency does not hold information under section 80(e) of the GIPA Act. The obligation of the Respondent is to carry out reasonable searches. The Respondent submits that the searches it carried out were comprehensive and has discharged their obligations. There was no further information held other than what has been considered for release. Specific questions arose whether handwritten notes of personnel of the Respondent were found. The evidence was that no such notes could be located.
The evidence included an affidavit of Juliet Butterworth of 31 May 2023. She was employed as an "Open Government, Information and Privacy Advisor" within the Respondent's legal division. That division among its other functions processes access applications made under the GIPA Act. The evidence sets out the processes for searches in this matter. I am satisfied that adequate searches have been made.

Conclusion

Accordingly, the remitted decisions of the Respondent under review are varied in accordance with their submission of 6 May 2024 and otherwise affirmed.

Orders 1. The decisions under review are varied in accordance with paragraph 143 of these reasons. 2. The decisions under review are otherwise affirmed. 3. Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the applicants and any children contained in evidence is prohibited.

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: 29 October 2024

Privacy Act 1998(Cth)

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

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (7)

Cases Cited (15)