GPP v Secretary, Department of Education

Legal Professional Privilege (LPP)

1. The respondent stated, relevantly: These documents contain confidential information that was prepared by its officers with the dominant purpose being for seeking and/or giving of legal advice. Therefore, they are subject to LPP. "Client legal privilege" is defined in ss 117 and 118 of the Evidence Act 1995 (NSW) (the Evidence Act). The essential elements of establishing this are: (1) The existence of a client and lawyer relationship; (2) There was an express or implied obligation that the communication was confidential; (3) The communication or document was prepared for the dominant purpose of the lawyers providing the client with legal advice. The confidential communications in the schedule of documents that were not released to the applicant are legal advice from/given to the respondent's staff (the client) by one of its legal officers. The respondent has previously confirmed that its legal officers are considered independent of the respondent in relation to the provision of legal advice. The dominant purpose of these communications was for the respondent' legal officers to provide advice for the respondent's staff (clients). Both the respondent's staff (clients) and the respondent's legal officers remain under an obligation not to disclose the contents of the documents provided by the client, satisfying s 117 of the Evidence Act. There has been no waiver of privilege, As such, I am satisfied that legal professional privilege applies to pages that are identified in the schedule. Therefore, there exists a conclusive presumption of overriding public interest of the information under clause 5(1) of Schedule 1 of the GIPA Act. In accordance with clause 5(2) of Schedule 1 of the GIPA Act, I have also considered whether it would be appropriate to now waive the legal privilege. I have decided that it would not be appropriate to waive privilege in this instance. Having regard to the above, the privileged information in the schedule is deleted in accordance with section 74 of the GIPA Act.
2. In relation to the remainder of the disputed documents, the respondent applied the public interest test as follows:

Public interest considerations in favour of disclosure 1. There is a general public interest in favour of disclosure: s 12(1); 2. Disclosure of the information could help the applicant understand the procedures and processes of the respondent; and 3. Disclosure of the information could inform the applicant about her concerns.

Public interest considerations against disclosure

1. The respondent relied upon cl 1(f) of the Table in s 14(2) of the GIPA Act, namely that disclosure of the information could reasonably be expected to prejudice the respondent's functions.
2. The respondent stated, relevantly: The information referred to includes email correspondence between departmental officers and executive concerning the management of staff issues. The primary function of the department is to provide educational services to students in government schools. This includes managing operational issues, such as staff issues that arise from the day to day operations of the department. The department's executive officers need to be able to freely discuss discretely and honestly how to best manage and resolve various sensitive issues affecting the functions of the department, including staffing. If the records of discussions concerning staffing issues are released in full, the department's ability to perform its day to day functions maybe seriously impaired because the time taken away from the core duties of executives and staff members will impact on the department's ability to effectively manage operational issues, and more broadly, impact on the department's ability to support learning of students. I recognise that the information is related to you and that the information may be relevant to your concerns. The GIPA Act is generally in favour of disclosing government information. As such, the weight of the public interest considerations in favour of disclosure in this matter is not trivial. I have released some information which does not harm the department's functions. After considering the gravity of releasing such information and the negative impact of release upon the department's functions, and balancing it with the public interest in favour of release, I conclude that there is a strong overriding public interest against disclosure. As such, I have decided to delete the information affecting functions of the department and provide you with access to the remainder of the pages.
3. The respondent also decided that certain pages that are identified in the Schedule of Documents contain personal information of third parties. Information of that nature had been deleted from the records that were provided to the applicant and in making that decision, the public interest test was applied as follows:

Public interest considerations in favour of disclosure 1. There is a general public interest in favour of disclosure: s 12(1); and 2. The information requested is the applicant's personal information.

Public interest considerations against disclosure

1. The respondent relied upon cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act, which provide: 1. Disclosure of the information could reasonably be expected to reveal the personal information of other individuals: cl 3(a); and 2. Disclosure of the information could reasonably be expected to contravene Information Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA): cl 3(b).
2. The respondent stated that "personal information" is defined in Sch 4 cl 3 of the GIPA Act and that it was satisfied that the records reveal personal information of third parties, as it is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information, and none of the exceptions (in cl 4) apply. The personal information reveals personal details of third parties.
3. Further, the respondent stated that disclosing the information without the consent of the third parties is likely to contravene s 18 of the PPIPA because the information was provided to the respondent for a specific purpose, namely, to coordinate staff availabilities. To provide the applicant with access under the GIPA Act is not in keeping with the purpose for which the information was collected. None of the exceptions under s 18 of the PPIPA apply.
4. In addition, releasing the information to the applicant would also provide her with private details of individuals mentioned in the records and as conditions cannot be imposed on information released under the GIPA Act, there is no way to protect the information. These factors weigh heavily against disclosure.
5. The respondent referred to s 54 of the GIPA Act, which requires an agency to consult with third parties to obtain their views before releasing there information where it is reasonably practicable to do so. This is especially so if it appears that the person may reasonably be expected to have concerns about the disclosure of the information. the respondent took into consideration the Information Commissioner's Guideline 4 on personal information and Guideline 5 on consultation.
6. The respondent decided that it was not reasonably practicable for it to consult all individuals mentioned in the records because the information is minimal and consultation would have extended the processing period and effectively postponed the date that a decision would be able to be provided to the applicant. Based on Guideline 4, the respondent decided not to release the information relating to the third parties as it was reasonably likely that they would have concerns about its disclosure.
7. The respondent concluded that the public interest considerations against disclosure of the disputed information considerably outweighs the public interest considerations in favour of disclosure.
8. The respondent also stated that some of the information has been redacted and marked "Section 74 - not relevant". This is information that is not relevant to the scope of the GIPA request and relates to third parties whose authority is not held, other events or information about things not covered by the GIPA request.
9. The respondent decided to waive any applicable processing charges under s 127 of the GIPA Act, and advised the applicant of her review rights.

Application for administrative review

1. On 16 February 2024, the Tribunal received the current application for administrative review, which raised the following grounds: The respondent's refusal to provide access to information in response to my GIPA application. My application is urgent due to the workplace bullying. I have submitted Public Interest Disclosure and an now suffering the consequences. The staff subject to my GIPA application have decided to medically retire me (contrary to Dept medical retirement guidelines, and industrial law).

Procedural matters

1. On 18 March 2024, Senior Member Ziegler conducted a case conference. The applicant was self-represented and S Napper appeared for the respondent. There was no appearance by or on behalf of the Information Commissioner.
2. 25 The Senior Member made the following orders: 1. The respondent to file and serve evidence, including statements, documents and submissions by 15 April 2024. That material must include: (a) a completed "Agency response" form; (b) all applications and decisions made under the GPA Act with respect to the matter, including those related to any internal review; and (c) a schedule of documents, identifying in tabular form each document in dispute by number and giving details of its date, nature, and author, and of the basis on which access is refused. 2. The respondent is to file the following material with the Tribunal on a confidential basis by 15 April 2024: (a) documents considered to be subject to a conclusive overriding public interest against disclosure in a sealed envelope marked "conclusive presumption documents"; (b) documents considered t be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked "non-disclosure documents". 3. The applicant is to file and serve all evidence, including statements, documents and submissions by 13 May 2024. 4. The respondent is to file and serve all evidence in reply, submissions and a summary of legal arguments by 20 May 2024. 5. The matter was listed for directions on 28 May 2024.
3. The Senior Member also noted that the respondent would email the applicant the information released in response to the GIPA request by 18 March 2024.

Dismissal application

1. On 23 May 2024, the Tribunal received a document titled "Respondent Repley (sic) Submissions of GIPA Act Review…", to which a redacted Deed of Release that the applicant signed on 22 April 2024, in relation to separate proceedings against the respondent, was annexed. The respondent stated, relevantly: 10. The respondent submits that this review application may breach clauses 15.1 and 16.4 of the deed because the following parts of the applicant's submissions dated 8 May 2024 directly or indirectly disparage the respondent's employees. 11. Points 3-8, 10, 12, 15-31, 40, 45, 54-66, 72-74, 76, 81, 84, 86, 87, 89, 92, 101, 112-114, 116, 117, 124-126, 128, 133, 134 143-155, 158-168 and 170-177, directly disparage employees by suggesting that they have failed to follow policies, withheld information, not followed correct processes, made false statements, made unethical decisions, did not conduct adequate searches, system inadequacies. 12. At point 92 of the applicant's submissions dated 8 May 2024 she states that she believes that 1(f) is used to cover up any maladministration, any misconduct or negligent, improper, or unlawful conduct or performance issues. 13. The respondent submits that the review be dismissed under s 55(1)(b) because the applicant is using the GIPA process for a collateral purpose, that is to agitate the fact that she does not agree with her medical retirement and to make unfounded allegations against the staff involved in the process.
2. On 28 May 2024, Senior Member Ransome conducted a directions hearing. The applicant was self-represented and Ms J Pendergast appeared for the respondent. The Senior Member made orders to the following effect: 1. The applicant is to file and serve submissions in relation to the dismissal application set out in the respondent's submissions dated 21 May 2024, by 25 June 2024; 2. The respondent is to file and serve any submissions in reply to the dismissal application by 30 July 2024; and 3. The matter is listed for hearing on 29 August 2024.
3. The Senior Member noted that the dismissal application would be dealt with at the hearing on 29 August 2024.

Open hearing

1. The matter came before me for hearing on 29 August 2024. The applicant was self-represented and Ms J Pendergast appeared for the respondent.

Reviewable decision

1. The parties agreed that the reviewable decision is that dated 12 February 2024.

Application for dismissal

1. When the matter commenced, the applicant stated that she wished to rely upon a bundle of documents that she had filed on 28 August 2024, in relation to the dismissal application. However, she stated that these documents are "confidential".
2. The Tribunal advised the applicant that there is no procedure for receiving confidential evidence from an applicant in relation to an administrative review of a decision made in response to a GIPA request.
3. However, the applicant replied to the effect that these documents relate to a Protected Disclosure that she has lodged in respect of the respondent, which is being managed by the Ombudsman, and that the Ombudsman has advised her that the documents should not be disclosed to the respondent.
4. The Tribunal asked Ms Pendergast whether the respondent pressed the application for dismissal. Ms Pendergast replied that the respondent was not pursuing that application.
5. The applicant then stated that she did not rely upon her "confidential" documents filed on 28 August 2024.

The substantive application

1. The Tribunal stated that it would then proceed with the administrative review. However, the applicant then stated that she was "totally flustered" as she believed that the Tribunal was only hearing the dismissal application.
2. The Tribunal confirmed that the orders made by Senior Member Ransome were clear, namely that the dismissal application would be dealt with at the hearing of the substantive application. The orders did not say that the only matter to be dealt with was the dismissal application.

Respondent's evidence

1. The Respondent relied upon the following documents: 1. Statement of Joanne Frearson dated 9 April 2024. This was admitted into evidence and marked as Exhibit A; and 2. Letter from Murat Dizcar, Secretary of the Respondent, dated 7 June 2024. This was admitted into evidence and marked "B".

Applicant's evidence

1. The Tribunal noted that the applicant had filed submissions on 14 May 2024. However, the applicant stated that her "submissions" also included evidence.

Respondent's submissions

1. Ms Pendergast stated that the respondent relied upon Ex A and the witness was not required to attend for the purposes of cross-examination. The statement attached search officer declarations from Kit Yap, Dianne Van Berlo, Mary Cutugno and Kavita Purohit. On that basis, she formed the view that the searches that were conducted in response to the GIPA request were reasonable.
2. Ms Frearson stated that on 13 February 2024, the applicant sent an email enquiring whether the new software system was used for searches, or the old system that was decommissioned and then reinstated was also used. On 27 February 2024, Ms Frearson responded to the applicant and decided to release her entire personnel file. I note that she subsequently took extensive steps to make the documents in the personnel filed available to the applicant electronically.
3. Ms Pendergast noted that in relation to the respondent's implied not-held decision, it relied upon the decision in Amos v Central Coast Council [2018] NSWCATAD 101 (Amos). Senior Member Lucy stated, relevantly: 36. The Council submits that, if the Tribunal has jurisdiction to review an implicit decision that an agency does not hold information, the approach to reviewing the sufficiency of an agency's search is as follows: 1. The Tribunal must be satisfied that there are reasonable grounds on which to believe that the requested information exists; 2. If so satisfied, the Tribunal must then determine whether the search efforts made by the agency to locate such information were reasonable in the circumstances of the case. 37. This approach has been adopted in a number of cases including Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11]-[12] and Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [21]-[22]. It was employed by the ADT when reviewing sufficiency of search under the Freedom of Information Act, prior to the ADT Appeal Panel case, and based upon a decision of the Queensland Information Commissioner in Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 at [19] (see, for example, Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298 at [6] and the cases there cited). 38. The approach may sometimes provide a useful guide when reviewing a decision as to whether an agency holds information under the GIPA Act. However, it must be remembered first that the Tribunal's task is to determine the correct and preferable decision at the time of the decision and secondly that it does not have jurisdiction to review the reasonableness of an agency's search under s 53 of the GIPA Act. Accordingly, if the Tribunal is persuaded that an agency holds more information than the information it has identified, it may be that the correct and preferable decision will not be to affirm the agency's decision that it does not hold the information, even if its searches appear to have been reasonable at the time they were conducted. 39. The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
4. Ms Pendergast referred to para 4 of the applicant's submissions dated 8 May 2024, in which the applicant stated: 4a. Although the respondent claims that reasonable searches have been undertaken and that no further records are held, the applicant believes that documents continue to be withheld citing evidence in Kavita Purohit's Search Officer Declaration as an example. Kavita Purohit signed to say that she did not have any documents, however Kavita Purohit had direct involvement in recommending the applicant for medical retirement. Kavita Purohit received a copy of the Medical Retirement Submission recommending medical retirement of the applicant. Kavita Purohit was required under the Department of Education's Medical Retirement Guidelines to check that minimum requirements had been met, and that the evidence was attached to the submission matched the signed statements of less senior staff before signing the submission. Kavita Purohit's signature appears on the Medical Retirement Submission, however, she failed to ensure that the evidence and minimum requirements to progress a Medical Retirement Submission had been met. Tab 1… 6. Internal documents between Mary Cutugno, "Jo" (Frearson) and Kavita (Purohit) also appear to have been omitted… 8. Mary Cutugno was one of the GIPA search officers. The search term had been clear ("applicant's name"). 16 October 2023 was within the date range of the GIP-23-2285 application. However, these documents were not provided as part of the search in the Department of Education' (sic) notice of decision GIPA-23-2285. The applicant believes that the above documents, and potentially other responsive documents were filtered out, and withheld instead of full documentation being provided in accordance with GIPA legislation, to the Right to Access Unit. 9. The respondent also made the following admission regarding the systems used and the consequent issues impacting on GIPA searches in the Health, Safety and Wellbeing Directorate: Health, Safety and Staff Wellbeing have advised that access and use of the Department's Legacy System SIMS ceased effective from 1 April 2022. Since then, the Department reverted to the use of the current system SHIELD for storage of workers compensation related data. Since SIMS was decommissioned, work has been underway to develop a software solution to ensure historical data is available to appropriate staff to search on. This software solution is presently in the final stages of pre-production release and as such availability of the data is limited: Tab 4.
5. Ms Pendergast stated that there is no evidence to support the applicant's assertions in paras 4 and 6 of her submissions. In relation to para 8, it is possible that Ms Cutugno did not retain a copy of the email described by the applicant and the fact that a single email was not located despite the searches that were conducted does not evidence that the email was "filtered out".
6. In Klaric v Commissioner of Police [2020] NSWCATAP 153 (Klaric), the Appeal Panel stated: 38. Contrary to Mr Klaric's understanding, the Tribunal did not find that "certain documents don't exist". Rather, the Tribunal accepted that Mr Klaric's assertions establish the possibility that information of the kind sought does exist. But the Tribunal was satisfied, on the basis of all the evidence including that of Mr Smith, that the decision that the respondent does not hold information was justified. In coming to that conclusion, it took into account that the searches undertaken on behalf of the respondent were reasonable. Mr Klaric has not identified any question of law or other error in relation to the Tribunal's finding. This ground of appeal is dismissed.
7. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska), the Appeal Panel discussed the approach to be taken on a review of a decision that information is not held by an agency. The Appeal Panel emphasised in that case, the respondent bears the onus of satisfying the tribunal that the decision that information is not held is the correct and preferable decision; and an important consideration is the adequacy of the searches undertaken.
8. As to whether the respondent's search efforts were reasonable, Ms Pendergast referred to the decision in CLT in which Senior Member French stated: 53. Having regard to the particular terms of each element of the access request it is not apparent to me why the search terms "audit" or "fleet vehicle audit" or "car audit" or "fleet/vehicle audit" would have been appropriate search terms to interrogate the agency's electronic data bases. The access request did not call for any fleet audit or review. I therefore do not consider that there was any inadequacy in the agency's searches because those search terms were not used. Similarly, I cannot see how the fleet service review, which is at Tab 3 of the applicant's submissions of 10 December 2021 can be suggestive of information held by the agency which has not been identified as responsive to the access request. The access request does not refer to a fleet service review or anything reasonably approximating it.
9. Ms Pendergast argued that s 53 of the GIPA Act requires searches to be conducted to a reasonable standard using the resources that were reasonably available to the respondent at the time. The test is objective in nature and the required standard is not that of an obsessive etc. observer.
10. Ms Pendergast stressed that Ms Frearson provided the applicant with a copy of her whole WH&S file on an informal basis.
11. Ms Pendergast also stated that the applicant alleges that there is evidence of corruption, maladministration etc., but she has not provided any evidence to support those allegations. In CLT v Secretary, Department of Education [2022] NSWCATAD 34, Senior Member French considered a matter in which allegations of this nature were made. He held, relevantly: 59. The applicant makes various serious allegations against several agency staff members involved in the processing of her access application which, if proven, may amount to offences under Part 6 Division 2 of the GIPA Act. Such conduct, if established, would also be relevant to the question of whether information is held by the agency. However, on the evidence before me, there is nothing to support the applicant's allegations that staff have acted personally and in collusion with one-another to conceal information, or to filter or screen it. Nor is there any evidence before me that would allow me to conclude that the Statements and Declarations made by Ms Dufty, Ms West, or by Ms Pendergast in her reconsidered decision, are 'dishonest'. The applicant's contentions in these respects are nothing more than wild allegations.
12. Accordingly, the respondent argued that reasonable searches had been conducted.
13. In relation to the public interest considerations against disclosure, the respondent relied upon the following clauses in the Table to s 14(2) of the GIPA Act: 1. Clause 1(f) - that disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 2. Clause 3(a) - that disclosure of the information could reasonably be expected to reveal the personal information of other individuals; and 3. Clause 3(b) - that disclosure of the information could reasonably be expected to contravene Information Protection Principle 18 under the PPIPA and/or Health Privacy Principle 11 under the Health Records and Information Privacy Act 2002 (NSW) (HRIPA).

Clause 1(f)

1. The respondent argued that disclosure of the disputed information could reasonably be expected to prejudice the exercise of its functions as follows: 1. By compromising its capacity to deal with sensitive human resources matters (in this case, medical retirement); and 2. By compromising its capacity to exercise its responsibilities with respect to the health and wellbeing of staff.
2. The respondent stated that its executive officers need to be able to freely discuss, discretely and honestly, how best to resolve various sensitive issues affecting its operations. The release of all correspondence between executive staff may seriously impair its ability to perform its functions relating to human resources issues.
3. The respondent stated that it has a duty to monitor the health and wellbeing of all staff. If communications between the executive and other staff members is released, it could reasonably be expected to prejudice future communications when dealing with sensitive human resources issues. Further, to release the information would restrict frank and honest communication between staff, which would prejudice the daily operations of the human resources directorate. The restrictions on human resources functions, such as staffing, would most likely be seriously impaired and have broader negative impact on operational management in general.
4. The respondent argued that the decision in Jenkinson v Department of Education and Communities [2013] NSWADT 280 (Jenkinson) is also relevant. In that matter, the Administrative Decisions Tribunal accepted that disclosure of information in question could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff.
5. Similarly, in Learmouth v Secretary, Department of Education [2020] NSWCATAD 109 (Learmouth), the tribunal accepted the need of the Department's executive to be able to freely discuss how to best manage and resolve sensitive issues affecting the operation of schools, and that the disclosure of information revealing such discussions could seriously impair the agency's ability to perform its day-to-day functions.
6. The respondent argued that cl 1(f) appears to be designed to protect information in situations where disclosure of information that was not provided in confidence, but which might still prejudice the effective exercise of the agency's functions. This is seen in the decision of Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 (Cousins), although in that matter the Tribunal was not satisfied that recorded communications between the respondent's employees were confidential for the purposes of cl 1(d) of the Table to s 14(2) of the GIPA Act, the tribunal accepted that cl 1(f) applied as disclosure of the communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of its functions. The respondent's communications systems were an essential feature of its ability to fulfil its statutory functions in providing ambulance services, their purpose being to respond to triple zero calls and other requests for ambulance services. In recognition of the important role these systems play, the respondent had detailed policies specifying the limited circumstances in which recordings could be accessed by employees and the applicant's request for a copy of the recording did not fall within one of those defined circumstances.
7. In Cousins, the Tribunal held that for both cll 1(d) and 1(f),"…the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency would be able to obtain such information in future: Selby at [55] and Camilleri at [38].
8. The respondent also stated that the Tribunal's decision in Luxford v NSW Department of Education and Communities [2016] NSWCATAD 118 (Luxford) is analogous, in which the disputed information related to the investigation of a complaint of bullying and harassment. The respondent argued that the health and wellbeing of staff and its capacity to exercise its responsibilities with respect to the day-to-day functioning of the schools were relevant considerations. The Tribunal accepted that the disclosure of the information could reasonably be expected to prejudice the effective exercise of the respondent's functions: at [124]-[125].

Clauses 3(a) and 3(b)

1. While the respondent made submissions to the effect that these clauses apply to the current matter, I note that the applicant's submissions indicate that she did not seek personal information of third parties.
2. On that basis, Ms Pendergast stated that there were only two redactions in the information that was released to the applicant and those redactions were of information that do not relate to the applicant.

Applicant's submissions

1. The applicant stated that she relied upon her written submissions and that she did not have anything further to say.
2. Some of the applicant's submissions dated 8 May 2024 were discussed by the respondent in its submissions. This is particularly the case with respect to documents that the respondent decided were not held.
3. In particular, the applicant stated her belief that the withheld documents were communications about her personal information. She stated, relevantly: 15. The applicant believes that the 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. 16. Medical Retirement Guidelines are specific and outline the process, procedures and evidence required to progress a Medical Retirement Submission. The applicant believes that there has been a departure from compliance with the Medical Retirement Guidelines by senior managers and an executive director. 17. The applicant believes and submits that she has been medically retired against the advice of her treating doctor, through the failure of Executive Directors, Leaders and senior managers in Health, Safety and Wellbeing Directorate to adhere to the Department of Education's Medical Retirement Guidelines…
4. The Tribunal notes that while the applicant made extensive submissions on this subject, that subject is beyond its jurisdiction and for this reason the remainder of her submissions on this subject have not been included in this decision.
5. Similarly, the applicant submitted that she had been denied procedural fairness and natural justice, However, again that submission was made in relation to the subject of her medical retirement and that is beyond this Tribunal's jurisdiction.
6. The applicant then stated, relevantly: 30. The applicant believes that the documents withheld by the respondent would include communications between Joanne Frearson and Kit Yap that would contain evidence of 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, and contain the applicant's personal information… 34. "Legal advice" is the provision of fact-specific legal advice to a service user in response to a request for assistance to resolve specific legal problems. 35. The applicant notes that the respondent has a broad interpretation "not to be confined to telling the client the law" and to include advice as to what should "prudently and sensibly be done in the relevant legal context". 36. NB There is a clear inequity of access to legal consultation and/or advice. Meghanne Wellard, Kit Yap, Dianne Van Berlo and several other Workplace Health Management staff were afforded the opportunity to contact the legal directorate, and clearly there are communications that have been withheld from the applicant. 37. NB The applicant has not been afforded access to, nor advice from, the legal directorate of the Department of Education. In fact when the applicant did contact the legal directorate for advice when a manager had breached departmental policy, the legal officer immediately told the applicant that she would have to seek her own legal advice outside the department or contact the union. 38. The applicant therefore does not accept the respondent's claim of impartial independent advice… 40. It is further noted that the respondent is vigorously insisting that clause 1(f) applies to the documents which are clearly related to the applicant's personal information. However, there would be no reason for the respondent to object to disclosure if the decision to medically retire the applicant WAS compliant with the MR Guidelines was correct, contained the required evidence, met the minimum requirements of evidence, and was based on honesty, and ethical decision making based.
7. Again, I note that this Tribunal has no jurisdiction in relation to the matter of the applicant's medical retirement.
8. The applicant then proceeded, at considerable length, to set out parts of the respondent's Code of Conduct. Again, those matters are not relevant to the administrative review of the reviewable decision under the GIPA Act and I have not extracted these submissions in this decision.
9. In relation to public interest considerations in favour of disclosure, the applicant set out the examples provided in s 12 of the GIPA Act. She also argued that the Tribunal should consider her personal factors of the application, which effectively relate to her medical retirement and her previously expressed views regarding the nature of the withheld document. She expressly disputed that cl 1(f) of the Table to s 14(2) of the GIPA Act applies to her GIPA request and instead asserted that the clause was being used to cover-up maladministration etc by the respondent.
10. In relation to the issue of searches, the applicant also disputed the credibility of the Search Officer Declarations relied upon by the respondent. However, she did not require any of the declarants to attend the hearing for the purposes of cross-examination and their evidence is therefore uncontested.

Anonymisation

1. Ms Pendergast raised an issue of whether the applicant's name should be anonymised for the purpose of reporting the Tribunal's decision in view of the sensitive issues involved in the matter.
2. The applicant then sought an anonymisation order and the Tribunal made an order under s 64(1)(a) of the NCAT Act.
3. The Tribunal excused the applicant from further attendance at the hearing and stated that upon the completion of the confidential hearing, it would reserve its decision.
4. The Tribunal informed the parties that it was necessary to conduct a hearing in the applicant's absence in relation to the respondent's claim for confidentiality over documents that have not been released to the applicant.
5. The applicant then left the hearing and the Tribunal closed the open hearing.

Confidential hearing

1. The Tribunal conducted a confidential hearing under s 105 of the GIPA Act in the absence of the applicant.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION].
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]
18. [NOT FOR PUBLICATION]
19. [NOT FOR PUBLICATION]

Decision reserved

1. At the completion of the confidential hearing, reserved its decision.

Reviewable decision

1. I am satisfied that the reviewable decision is that of the respondent dated 12 February 2024.

Legal principles and relevant legislation

1. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].
4. Section 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
5. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
6. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
7. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
8. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
9. In Flack and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
10. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
11. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
12. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
13. Clause 1(f) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
14. Clause 3(a) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
15. Clause 3(b) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIPA or a Health Privacy Principle under the HRIPA.
16. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104] (Searle). Subsections 15(a) to (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the Act.
17. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech at [25].
18. Section 55 of the GIPA Act provides: 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. Note - An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
19. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
20. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
21. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of- (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
22. The information withheld by the Respondent is claimed to be subject to LPP. Clause 5 of Sch 1 to the GIPA Act states: 5 Legal Professional Privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
23. The term "client legal privilege" is found in the Evidence Act and is used interchangeably with the term "legal professional privilege". The Evidence Act recognises two classes of legal professional privilege - "advice privilege" and "litigation privilege".
24. Section 118 of the Evidence Act provides: 118 Legal Advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
25. Section 119 of the Evidence Act provides: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
26. Section 117 of the Evidence Act contains definitions of 'client' and 'lawyer' and relevantly provides as follows: 117 Definitions (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) … lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …
27. The phrase 'dominant purpose' is not defined in the Evidence Act. However, it has been held to mean the 'ruling, prevailing, or most influential purpose' that predominates over other purposes and not the 'primary purpose' or 'substantial purpose' of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 at [11].
28. The important question to be asked is "what was the intended use (or uses) of the document which accounted for it being brought into existence": Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [366]. This is to be determined as a question of fact: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [14].

Consideration

1. This Tribunal does not have jurisdiction to review the respondent's decision to medically retire the applicant.
2. Therefore, the applicant's lengthy submissions regarding that process and whether the respondent's decision complied with the relevant Policy and Guidelines, can only possibly be relevant to evidence that there are personal factors of her GIPA request that should be considered under s 55 of the GIPA Act. I have treated those submissions accordingly.
3. Similarly, the Tribunal has no jurisdiction to determine whether the respondent denied the applicant procedural fairness and/or natural justice in deciding to medically retire the applicant.
4. Pursuant to s 105 of the GIPA Act, the respondent bears the onus of establishing that the reviewable decision is justified.

Clauses 3(a) and 3(b) of the Table to s 14(2) of the GIPA Ac

1. I note that the applicant's written submissions indicate that she does not seek personal information of other persons, and she did not indicate otherwise at the hearing.
2. Accordingly, I am satisfied that there is no dispute that some of the withheld information is information to which cll 3(a) and 3(b) applies. This applies to the documents numbered 125, 342, 687, 730 and 932 of the documents that the respondent filed with the Tribunal on a confidential basis.

Information not held

1. The respondent bears the onus of establishing that the information that the applicant sought from Kavita Purohit is "not held" and the applicant disputes the respondent's decision that this information is "not held".
2. Notwithstanding respondent's onus under s 105 of the GIPA Act, the Tribunal has held that the applicant bears a practical onus of establishing the existence or possible existence of that information: see Amos.
3. In determining this issue, The Tribunal must be satisfied that there are reasonable grounds on which to believe that the requested documents exist. If so satisfied, the Tribunal must then determine whether the search efforts made by the agency to locate such information were reasonable in the circumstances of the case.
4. I note that the applicant's "submissions" set out at length her suspicions that the "not held" information exists, and she proceeds to speculate that the information is withheld by the respondent because its disclosure "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".
5. However, with respect to the applicant, her submissions do not establish a safe climate for finding that the "not held" information exists. The test to be applied by the Tribunal is an objective one and despite the applicant's beliefs and speculations, she has not filed any evidence that supports them.
6. Accordingly, I am satisfied that the information sought from Kavita Purohit is not held by the respondent.

Claim for Privilege

1. The respondent bears the onus of establishing that there is either a conclusive presumption that the withheld documents are subject to an overriding public interest against disclosure pursuant to cl 5 of Sch 1 of the GIPA Act, or that there is an overriding public interest against their disclosure after applying the public interest test.
2. Pursuant to cl 5(1) of Sch 1 of the GIPA Act, there is a conclusive presumption that there is an overriding public interest against disclosure of information if it would be privileged from production in legal proceedings on the ground of client legal privilege (LPP), unless the person in whose favour the privilege exists has waived the privilege.
3. The respondent made extensive submissions in support of a finding that LPP applies to the information in the information contained in the remaining documents listed in the Schedule of Documents. In the alternative, it argues that c. 1(f) of the Table to s 14(2) of the GIPA Act applies and that there is an overriding public interest against its disclosure after applying the public interest test.
4. The applicant disputes the claim for LPP and argues that the term "legal advice" should be interpreted restrictively.
5. I note that the applicant also takes issue with the respondent's submission that the role of its Legal Services Directorate is to provide independent and impartial advice. She particularly takes issue with the issue of "impartial legal advice" on the basis that she approached the Directorate for legal assistance and her request was refused.
6. However, with respect to the applicant, the evidence from the respondent is to the effect that the role of the Legal Services Directorate is to provide respondent with independent and impartial advice. I am satisfied that the applicant's complaint on this point is misconceived.
7. Having perused the withheld documents in the confidential hearing, I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of information contained in the withheld documents because it is subject to LPP. This information includes communications between staff and Executive Officers of the respondent and the Legal Services Directorate and also with external Solicitors.
8. There is no evidence before me that establishes that the respondent has waived privilege in relation to any of the withheld information that is subject to the claim for LPP.
9. Accordingly, I am satisfied that the following documents that the respondent filed with the Tribunal on a confidential basis are subject to a conclusive presumption that there is an overriding public interest against disclosure: 1. Pages: 90 to 91 (inclusive), 93, 95, 97, 98, 407 (duplicate of page 98), 446 to 678 (inclusive), 701 to 702 (inclusive), 1102 to 1003 (inclusive), 1098 to 1713 (inclusive), 1102 to 1105 (inclusive), 1219 to 1225 (inclusive), 1310 to 13122 (inclusive), 1323 to 1331 (inclusive), 1332 to 1334 (inclusive), 1335 to 1341 (inclusive), 1344, the first half of pages 1350, 1370 and 1437), 1524 to 1524 (inclusive), 1528 to 1532 (inclusive), 1533, 1534 to 1537 (inclusive), 1538 to 1545 (inclusive), 1546 to 1558 (inclusive), 1559 to 1563 (inclusive), 1564 to 1571 (inclusive), 159, the top line of page 1592, 1677 to 1681 (inclusive) and 1682 to 1713 (inclusive).
10. I note that during the confidential hearing, the respondent agreed to release the following information to the applicant on the basis it was information that she provided and it is already in her possession: 1. Pages: 1005 to 1037 (inclusive) , 1101, 1106 to 1190 (inclusive), 1226 to 1310 (inclusive), 1342 to 1343, 1347 to 1349, the second half of page 1369, from the second half of page 1370 to 1523 (inclusive), from the second line of 1592 to 1676 (inclusive)
11. In view of my findings in relation to cl 5 of Sch 1 of the GIPA Act, it is not necessary for the Tribunal to apply the public interest test.

Orders 1. The respondent's decision is amended to indicate that the respondent will release pages 1005 to 1037 (inclusive) , 1101, 1106 to 1190 (inclusive), 1226 to 1310 (inclusive), 1342 to 1343, 1347 to 1349, the second half of page 1369, from the second half of page 1370 to 1523 (inclusive) and from the second line of 1592 to 1676 (inclusive) of the documents that the respondent filed with the Tribunal on a confidential basis to the applicant. 2. The respondent's decision is otherwise affirmed. 3. The application for administrative review is otherwise dismissed. 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: 17 September 2024