GHW v Department of Education

NCAT Administrative and Equal Opportunity|2024-06-17

l and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public.

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 Applicant, his children, the children's mother and the children's places of education to the public is prohibited.

Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication of court orders made by the Federal Circuit and Family Court of Australia tendered in these proceedings or information contained in those court orders to the public is prohibited.

Pursuant to ss 64(1)(a), (c) and (d) of the Civil and Administrative Tribunal Act 2013, the publication of any part of the bundles of documents tendered by the Respondent and not provided to the Applicant is prohibited.

Pursuant to ss 64(1)(a), (c) and (d) of the Civil and Administrative Tribunal Act 2013, the publication to the Applicant or the public of the internal review application dated 23 February 2024 tendered by the Respondent, is prohibited.

REASONS FOR DECISION

The Applicant seeks certain information from the Respondent concerning his children. He applied for that information under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The Respondent refused his application. The Applicant seeks review of the decision refusing his application.

Background

The Applicant made his access application on 3 November 2023. The information sought was in the following terms: "All information in the custody, care or control of only … [a named school] … for .. [named children] .. and myself, including, emails, correspondence, minutes, notes and attendance records. Date range: 29/09/2- to 9 to 5/11/2023."
There were delays in the determination of the application due to delays in receiving records. A notice of deemed refusal to deal with the access application was issued on 11 December 2023. The scope of the access application was then reduced to exclude correspondence between the Applicant and the school in question. On 31 January 2024, the Respondent issued a late notice of decision in which it was determined to provide access to part of the information requested and refuse access to other parts. This decision to provide access was made over the objection of a third party who had been consulted pursuant to s 54 of the GIPA Act.
The Applicant, by application made on 2 February 2024, seeks administrative review of the Respondent's decision. The decision for which review was sought was the Respondent's deemed refusal to deal with the access application, as notified on 11 December 2023.
On 23 February 2024, the third party objector applied for internal review of the Respondent's decision of 31 January 2024.
On 22 March 2024, the Respondent issued a notice of decision on internal review. This internal review decision determined to provide access to school reports and otherwise to refuse access to the information requested by the Applicant. This is the decision that is before the Civil and Administrative Tribunal ("Tribunal") for review.

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 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 Education is listed in that schedule. The Respondent, as a result, is an "agency".
An agency has, therefore, made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a 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 the 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 Applicant's initial challenge to the decision of the Respondent is based on three grounds. They are; 1. the Respondent has not provided any affidavit evidence and accordingly does not have an appropriate evidentiary basis to support its position 2. the Respondent should not be able to rely on alleged court orders or in the alternative that the court orders in question should be given little or no weight by the Tribunal 3. the Respondent should not be able to rely on documentary evidence that has not been annexed to a witness affidavit and accordingly that the bundles of documents tendered by the Respondent should be given little or no weight by the Tribunal.
The matters for determination in the present proceedings, first of all, include these questions raised by the Applicant as to the evidence placed before the Tribunal.

Affidavit evidence

An initial question for determination by the Tribunal is what effect the absence of evidence given by affidavit on behalf of the Respondent has on the evidence of the Respondent in support of its submissions. The Applicant's contention was that the Respondent, in not giving evidence by affidavit, "did not have an appropriate evidentiary basis to support its position". The Applicant also relied on what is known as the rule in Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298. This is a rule of evidence that an unexplained refusal by a party to give evidence, to call witnesses or to lead other evidence, in appropriate circumstances, allows an inference that the uncalled evidence would not have assisted that party's case.
The Respondent submits that the absence of evidence by way of affidavit did not mean that the Respondent could not rely on the documentary evidence that has been put before the Tribunal. That evidence was provided by the tender of copies of the following documents; 1. orders of the Federal Circuit and Family Court of Australia made in 2023 2. a confidential bundle of the documents to which access was refused, provided to the Tribunal on 22 March 2024 3. a third party objector's application for internal review, which set out the third party's views regarding the disclosure of information to the Applicant, tendered on a confidential basis.
The Respondent's submission was that it was not a precondition to the tender of documentary evidence that it be presented as an annexure to an affidavit. The Respondent also submitted that the Tribunal is not, in any event, bound by the rules of evidence. It is authorised to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38 of Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act")).
The Respondent submitted that the factual matters arising for determination are primarily the characterisation of information, so that an affidavit would have little, if any, bearing on the probative value of documentary evidence before the Tribunal. An officer of the Respondent, for example, could not speak further to a claim that information is "personal information".
I do not think that documents put before the Tribunal are, in every case, required to be brought into evidence by means of an affidavit. Where the contents of documents before the Tribunal, are sufficient to enable it to review a decision to refuse access to information contained in the documents, the parties do not need to go to the cost and expense of providing evidence by affidavit and cross-examining witnesses. There may be circumstances where the provision of evidence by affidavit and the cross-examination of witnesses may be necessary, for example, where there are real questions as to the authenticity of documents. I do not find that any such circumstances arise in the present case nor that application of the rule in Jones v Dunkel can assist the Tribunal. I find that the absence of an affidavit, does not, in the circumstances of the matter before the Tribunal, prevent the receipt and consideration by the Tribunal of the documents the Respondent has tendered.

Court orders

The Respondent tendered in evidence a copy of court orders of 2023 made by the Federal Circuit and Family Court of Australia. The Applicant claimed that their authenticity and veracity could not be accepted. He did not, however, provide any relevant particulars or reasons for this claim. In these circumstances, I see no reason to refuse the tender of a copy of the relevant court orders on the alleged basis that the copy tendered lacks authenticity or veracity.
The Applicant also challenged the admissibility of the court orders on the basis that providing them to the Respondent potentially breached the former s 121 of the Family Law Act 1975 (Cth) ("FLA"). Section 121(1) of the FLA was repealed with effect from 6 May 2024. The former s 121 prohibited publication of such court orders "to the public or to a section of the public". A new Part XIVB of that Act has come into effect including similar subject matters to the former s 121.
The Respondent, for its part, submitted that neither the provision of a copy of the court orders to the Respondent nor the Respondent's tender of those court orders to the Tribunal would constitute unlawful publication of the orders, in that there was no dissemination to the public or a section of the public.
It is beyond the scope of the Tribunal's jurisdiction under the Administration Act or the NCAT Act to determine the lawfulness or otherwise of conduct under the FLA. The question for the Tribunal is whether it may accept in evidence a copy of the court orders in question for the purposes of these proceedings. In the absence of any evidence of the lack of authenticity of the copy of the court orders placed before the Tribunal, I do not see any reason why a copy of the court orders cannot be taken into evidence by the Tribunal. However, orders under s 63 of the NCAT Act prohibiting publication of these court orders are, in the circumstances, appropriate and necessary. Where such an order is made and complied with, tender of a copy of the court orders to the Tribunal does not result in dissemination of those orders to the public or a section of the public.

Tender bundles

The Respondent submitted that the bundles of documents provided to the Tribunal could properly be submitted in evidence. There were two such bundles. The first was the "Open Tender Bundle" consisting of the Respondent's information reviewed in its internal review decision. It also included information released to the Applicant.
The second bundle was the "Closed Tender Bundle". This bundle included the information in issue in the proceedings. The Respondent submitted that the "Closed Tender Bundle" had been provided so that the Tribunal may review the information to which access had been refused. The Tribunal had ordered that the Respondent file these documents to facilitate the Tribunal's administrative review. The Respondent also relied on s 107 of the GIPA Act to preserve the confidentiality of that material.
The Applicant's argument is that neither bundle had been properly submitted and accordingly should be given little or no weight by the Tribunal.
I do not see any reason why both tender bundles cannot be accepted into evidence. Indeed, the very question before the Tribunal is determination of whether access should be allowed to information contained in the Closed Tender Bundle. The Open Tender Bundle, in showing what was disclosed to the Applicant, is also relevant to determination of that question. Without the information included in both bundles before the Tribunal, it is unclear how the Tribunal can do what is asked of it, namely review of the decision of the Respondent the subject of these proceedings.

Third party application for internal review

The Respondent tendered on a confidential basis a third party's application for internal review of the Respondent's decision of 31 January 2024. The Respondent did so on the basis that the internal review application is relevant to the issue of the weight to be attributed to public interest considerations against disclosure arising out of a third party's objections.
I accept the relevance of the third party application for internal review. The Tribunal needs to have before it all relevant information to enable it to determine the matter. The fact of the objection having been made and consideration of the reasons given by a third party objector remain relevant to determination of the matters at hand, whether or not the Tribunal gives weight to those reasons.
The Respondent applied pursuant to s 107 of the GIPA Act for the Tribunal to receive the third party internal review application in the absence of the Applicant. I accept the third party application under s 107. Provision of the third party internal review application to the Applicant may have the effect of revealing information which is claimed to be the subject of an overriding public interest against disclosure in the proceedings. The protections in s 107 apply to such information (Black v Hunter New England Local Health District [2011] NSWADT 195). The Respondent also sought an order under s 64 of the NCAT Act prohibiting disclosure of the internal review application. Such an order is appropriate and necessary.
There could be a degree of unfairness to the Applicant arising out of the application for internal review being received in evidence on a confidential basis. However, the Respondent relies on that application for a limited purpose, namely as evidence of the existence and nature of objections of a third party. That the third party objects is known to the Applicant. I can therefore accept in evidence the internal review application only as evidence that there is a third party objection and also as to the nature of the objection.

Substantive matters

The substantive matters for determination in these proceedings are the following. 1. Whether there was a conclusive presumption of an overriding public interest against disclosure of information concerning children. 2. If not, whether public interest considerations in favour of providing access to the relevant information outweigh public interest considerations against providing such access.

Conclusive presumption

Under s 14 of the GIPA Act, 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 of the GIPA Act. Clause 10 of Schedule 1 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) ("CYPCP 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 CYPCP Act applies. If the information the Applicant seeks is to be found in such a report or reports, there will be a conclusive presumption against disclosure of that information.
What is a "report" is defined in s 29(6) to include certain specific kinds of reports. As the definition is inclusive, it will also capture what is a "report" generally. Section 29 does not set out any formal requirements a document needs to satisfy to be accepted as a "report".
The kinds of reports falling within s 29 must be reports that are 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 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 documents in dispute include correspondence or other documents in relation to the children in question, they answer the first part of the description within s 29. That is, they are in relation to a child or young person or a class of children or young persons.
The recipient must be a person who has the power or responsibility to protect the child or young person or the class of children or young persons. To the extent that the documents in question are received by teachers teaching the children, or otherwise have responsibility for them at their school, they fall within s 29. Where other material forms annexures to correspondence or other documents containing relevant reports, they will, in my view, form part of the "report".
I have reviewed the pages forming both the "Open Tender Bundle" and the "Closed Tender Bundle". Each is comprised of several hundred pages. I find that the material in the tender bundles not provided to the Applicant falls within s 29, subject to the comments at [49] below. I have also reviewed certain documents filed by the Respondent on 2 July 2024 and marked "out of scope".
[NOT FOR PUBLICATION]
There is no evidence to indicate that any of the information in the reports in question was not provided in good faith.
The material in the tender bundles includes school reports. On the evidence, the Applicant has access to the school reports. These school reports are not in issue.
I am therefore of the opinion that the information produced by the Respondent to the Tribunal which has not been provided to the Applicant falls within clause 10 of Schedule 1, as reports to which s 29 of CYPCP Act applies or is otherwise, out of scope. There is, as a consequence, a conclusive presumption that there is an overriding public interest against disclosure of reports to which s 29 of CYPCP Act applies. The conclusive presumption against disclosure allows for no exceptions, including disclosure to a parent, whether or not the parent has parental responsibility at law. That no such exception is allowed under the GIPA Act evinces an intention that clause 10 was intended to have far reaching application. Where a parent seeks information concerning their children but that information is in a report falling under s 29, the means of accessing that information is not to be found under the GIPA Act where clause 10 applies.

Balance

Having found that there is a conclusive presumption that there is an overriding public interest against disclosure, the question of whether disclosure is also prevented by s 12 and 13 is not strictly necessary for me to consider. However, I set out below my findings, consequent upon carrying out the balancing exercise that is required of the Tribunal, to determine where the public interest considerations in favour of disclosure outweigh those against.
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…".
The Table in s 14 of the GIPA Act, includes the following public interest considerations against disclosure: "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."

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).
The Respondent relied on the decision of the Tribunal in Davis v Secretary, Department of Education [2022] NSWCATAD 55 which addresses situations where the Applicant already knows the identity of persons whose personal information is sought. Montgomery SM said: "….. disclosure under the GIPA Act is effectively disclosure to the world as no restrictions can be placed on its use. The Applicant has indicated that he is already aware of the identity of most of the individuals who provided information as part of the investigation process and, in a general sense, the information that was provided. In these circumstances, it is my view that there is a real public interest in not revealing the personal information of those people who provided information as part of the investigation process to the world at large".
To the extent that the information sought was about the Applicant's children or was also about their mother, the evidence is that their identity is already known to the Applicant. This will not, of itself, allow for disclosure of the information in question to the Applicant for the reasons set out in Davis.
While a requirement that must be satisfied for information to fall within the definition of "personal information" is that identity of the relevant person can be ascertained or made known from the information, it is not the identity of the relevant persons itself that is protected. It is information or opinions about that individual. Even if the Applicant knows the identity of the relevant persons, what is protected is information or opinions about them.
The Respondent's submission was that the disputed material in this matter was predominantly in the nature of "personal information". I accept this submission, in that the documents in question comprised personal information about the children and to some degree, their mother. That information was information about the children held by the school they attended. It was information of the kind a school may be expected to keep about students. Where the information was not about the children, it was about their mother. This is, with little doubt, "personal information".
The Respondent submitted that considerations concerning personal information were a weighty consideration, particularly in circumstances where the information in issue was primarily that of children. I accept the Respondent's submission that these are weighty considerations.
The Applicant's relationship to the children concerned is also a relevant matter, the Applicant being their father. The Respondent, however, submitted that the Applicant did not have parental responsibility for his children. Their mother had sole parental responsibility. She had not consented to release of the information sought.
The evidence establishes that the mother had sole parental responsibility. The Applicant's relationship to the individuals concerned, namely they being his children, is also a consideration that has relevance. However, taking into account the matters at [60] above, the character of the information in question as personal information allows me to place significant weight on this consideration as a public interest consideration against disclosure.

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 Respondent submitted that no exceptions applied. Disclosure would reveal information for a purpose other than that for which the information was collected. There was also no reason for believing that the individuals concerned would not object to disclosure. Therefore, the exception in s 18(1)(a) did not apply. In fact, one such individual had expressly objected to disclosure. There was no basis for a belief that the individuals concerned would be aware that information of this kind would usually be disclosed to the Applicant. Therefore, the exception in s 18(1)(b) also did not apply. There was also no basis for a reasonable belief that disclosure was necessary to prevent or lessen a serious or imminent threat to the life or health of the individuals concerned, so that the exception in s 18(c) did not apply.
The evidence at hand is sufficient for me to conclude that the information in question falls outside the exception in s 18(1)(a) of the PPPA Act. The information was collected by the school for the purpose of the children's education and welfare and communication about these matters between the school and their mother. Disclosure outside the parameters of the arrangements in place between the school, the children and their mother who has sole parental responsibility, in my opinion, would result in disclosure that is not for a purpose for which the information was collected.
There is also no relevant evidence placed before the Tribunal that circumstances that may permit disclosure by reason of s 18(1)(b) or (c) exist.
In addition, the Respondent submitted that some of the information in question may be characterised as health information for the purposes of the Health Records and Information Privacy Act 2002 (NSW) ("HRIP Act"). Disclosure of this health information would be contrary to that Act as set out in clause 11 of Schedule 1. Clause 11 provides that an organisation that holds health information must not disclose that information for a purpose other than for a purpose for which it was collected, unless certain relevant exemptions apply. In the Respondent's submission, no exemptions would apply.
To the extent that the information in question is health information, I accept the Respondent's submissions. However, only some of the information is health information. I do not need to rely on grounds related to health information as consideration of the matters arising under the PPIPA Act are sufficient for me to give weight to the considerations applying under clause 3(b).
It follows that public interest considerations against disclosure arising under clause 3(b) are established. I attach some weight to these considerations, especially given that children are involved.

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 Applicant sought access.
Whether disclosure to a parent who did not have parental responsibility was in the best interests of a child fell for consideration in EHW v Secretary, Department of Education [2022] NSWCATAD 140. The Tribunal said: "In Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 at [47], the Tribunal gave significant weight to the fact that while the parent in that matter did not have custody of his children because they lived with his former partner, he retained parental responsibility over them. The respondent submitted that there is no evidence in these proceedings that the applicant has parental responsibility over his children or for any such inference to be made that he has such control. The respondent's Further Reply Submissions, which I accept, stated at [5] to [7]: 5. It is significant whether or not the applicant has parental responsibility over his children, because it is the existence of that responsibility which is the basis upon which the common law assumes a parent will act in the best interests of the child (citing The Secretary, Department of Health and Community Services (NT) v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218 at 239-240). 6. The Commonwealth Freedom of Information Guidelines, which the applicant seeks to rely on, merely acknowledge that a parent seeking access to their child's information where the disclosure is in the child's best interests is a factor in favour of disclosure for the purposes of the Freedom of Information Act 1982 (Cth). It does not advance the applicants submission that the Tribunal should accord the public interest consideration great weight in the context of the GIPA Act. If anything, the guidelines work against the applicant's submission because they only recognise there to be a public interest consideration in favour of disclosure when the disclosure is in the best interest of the child for their information to be disclosed to their parent. 7. In circumstances where the Tribunal ought to conclude that the applicant does not have parental responsibility over his children, the Tribunal could not be satisfied that the disclosure of their personal information to the applicant would be in their best interests. Accordingly, insofar as the Tribunal accepts that the public interest consideration in favour of disclosure applies in the manner formulated by the applicant, the respondent submits that the Tribunal would be satisfied that it should be given little weight. I therefore find that other than the rebuttable statutory presumptions in favour of disclosure, the applicant's "personal" factors in favour of disclosure should only be afforded moderate weight.
The Applicant remains the father of the children. This is a relevant consideration. The absence of parental responsibility on the part of the Applicant, in my opinion, however, is relevant to the balancing exercise in this matter. Accordingly, I place significant weight on the considerations under cl 3(g) as public interest considerations against disclosure.
The Respondent identified certain public interest considerations in favour of disclosure. They were; 1. the general public interest in favour of disclosure 2. some of the information requested by the Applicant was the Applicant's children's personal information 3. disclosure of the information would help understand the procedures and processes of the Respondent 4. disclosure of the information could provide information about a person's concerns.
The Applicant submitted that disclosure could reasonably be expected to promote open discussion of public affairs and contribute to positive and informed debate on issues of public importance and ensure effective oversight of expenditure of public funds.
The balancing exercise that the Tribunal must carry out in weighing the public interest considerations for disclosure against those going in the opposite direction, allows the Tribunal to have regard to certain factors personal to the Applicant. Section 55 provides as follows: "55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person".
The Respondent's submission was that the material withheld was predominantly the personal information of people other than the Applicant. It was submitted that these factors give greater weight to the public interest considerations against disclosure.
The Applicant for his part submitted that the Respondent had not appropriately considered, nor accounted for the personal matters of the Applicant.
I place moderate weight on the public interest considerations for disclosure, especially the personal matters appertaining to the Applicant, as the father of the children.
I find that, having considered the public interest considerations for and against disclosure, the public interest considerations against disclosure outweigh those for disclosure. I place significant weight on the character of the information sought as personal information concerning the children and also their mother. I place significant weight on public interest considerations as to the best interests of the children. I also place some weight on the applicable information protection principles. I place moderate weight in favour of disclosure on the personal factors in relation to the Applicant and some weight on the public interest considerations for disclosure set out at [72]-[73] above. However, these considerations do not outweigh the public interest considerations going against disclosure.

Orders 1. The decision under review is affirmed. 2. Pursuant to ss 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the contents of all paragraphs in these reasons marked NOT FOR PUBLICATION are not to be published or disclosed to the Applicant or the public. 3. 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 Applicant, his children, the children's mother and the children's places of education to the public is prohibited. 4. Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication of court orders made by the Federal Circuit and Family Court of Australia tendered in these proceedings or information contained in those court orders to the public is prohibited. 5. Pursuant to ss 64(1)(a), (c) and (d) of the Civil and Administrative Tribunal Act 2013, the publication of any part of the bundles of documents tendered by the Respondent and not provided to the Applicant is prohibited. 6. Pursuant to ss 64(1)(a), (c) and (d) of the Civil and Administrative Tribunal Act 2013, the publication to the Applicant or the public of the internal review application dated 23 February 2024 tendered by the Respondent, 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: 09 August 2024

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

At a glance

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Decision date

Source

Judgment (20 paragraphs)

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Legislation Cited (9)

Cases Cited (7)