Mansfield v Department of Family and Community Services

ISSUE BEFORE THE TRIBUNAL 9Is there an overriding public interest against disclosure of the information sought by the Applicant in terms of s.13 of the GIPA Act?

EVIDENCE 10Terry Meader, the Right-To-lnformation Coordinator by the Community Services Branch, of the Respondent, who had undertaken the internal review, provided an affidavit, which, also contained the Respondent's submissions. Mr Meader's affidavit annexed, on a confidential basis, an unredacted version of the documents containing the information which it had declined to provide to the applicant. 11The annexure also made reference to information the subject of a "s.29(1A) certificate" (discussed below). That information was not made available to me.

CONSIDERATION 12Section 14 of the GIPA Act sets out that there is a conclusive presumption that there is an overriding public interest against disclosure of government information described in Schedule 1 of the Act. Clause 10 of the Schedule 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. 13Section 29 of the Children and Young Persons (Care & Protection) Act 1998 ('Care Act') relates to the protection of persons who make child-at-risk reports to the Respondent. It requires the Respondent to ensure that information that may enable the identity of a source of a child-at-risk report is not disclosed without the consent of the person who made the report or by leave of the court: s.29(1)(f) of the Care Act. 14Moreover, s.29(1)(d) of the Care Act provides that: (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): ... (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal (Tribunal's emphasis) 15As the subject of these proceedings is access to information the proceedings are not "in relation to any child or young person". 16In addition, s.29(1A) provides as follows: (1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. 17The Director-General has provided such a certificate in respect of the following information: Date of Document Description of contents Number of Pages 11 September 2012 Contact record 4 pages (1-4) 11 September 2012 Initial assessment 4 pages (5-9) 11 September 2012 Secondary assessment 4 pages (part of pages 10,11, 13, 14) 4 August 2012 LPR Briefing Meeting Form 4 (19, 20, 22, 23) 19 September 2012 Assessment record 2 lines on pages 50 and 52 19 September 2012 Secondary Assessment Stage 2 Part of pages 55, 56, and 57

18I therefore must accept that that information is such a 'report'. I observe though, that in relation to F50 and F52 there was no indication which were the 2 lines referred to, and, in any event, the document appears to have been released to the applicant in full: Meader Annexure F. 19I turn then to consider the remainder of the information:

• F17 contains the address of the applicant's son and that of his ex-wife.
• F24-28 is the interview with one of the applicant's children. The majority of the document has been supplied to the applicant with redactions. F24 has been released in full, other than with the redaction of 2 lines. These do not identify the informant. F25 has been provided to the applicant in full. F26 has been released in full, other than with the redaction of 2 lines. F27 and F28 have been released in full.
• F29-33 is the interview with one of the applicant's children. The majority of the document has been supplied to the applicant with redactions. F29 has been released in full, other than with the redaction of 2 lines. F30, 31 and 32 have been provided to the applicant in full. F33 has the given name of person present at an interview with one of the children redacted. That person's given name is referred to, without redaction, elsewhere. It is therefore not capable of being 'revealed'. F33 has therefore not been considered further.
• F34 -35 is the formal version of one interview. F34 has been provided to the applicant in full. F35 has been released in full, other than with the redaction of one line.
• F36 - 37 is the formal version of the other interview. F36 has been released in full, other than with the redaction of one line. F37 has been released in full, other than with the redaction of 3 lines.
• F38-39 is a file note of discussions between the caseworker and the applicant's ex-wife.
• F42-43 is a file note in relation to the visit by the caseworker to the applicant's home, which was attended by his mother. The redacted portions relate to discussions with the applicant's mother.
• F44 is a file note of discussions between the caseworker and the applicant's ex-wife.
• F47 - 48 are the notes of a debriefing meeting. F47 includes a précis of discussions with the applicant's wife. F48 has been released in full, other than with the redaction of 4 lines.
• F53 - 58 is the secondary assessment. The only redactions are those in F55, F56 and F57 and are those subject to the s.29(1A) certificate, and in view of my observations above, are not otherwise considered.
• F60 is a letter, the addressee of which has been redacted, from the information previously provided to the applicant. 20Somewhat confusingly the Respondent claimed a public interest against disclosure in relation to some information which, from Mr Meader's evidence, had already been provided to the applicant. I have proceeded on the basis that that information has already provided to the applicant: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40]. As such I have not made a decision in relation to that information. 21In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s.13 of the GIPA Act requires the Tribunal to undertake the following steps:
• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies. 22Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure: s.105(1) GIPA Act. 23Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a)Agencies must exercise their functions so as to promote the object of this Act. (b)Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c)The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d)The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e)In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Public interest considerations in favour of disclosure 24Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. 25Despite my invitation, the applicant made no submissions beyond what he had written in his application for review. However it is clear that the applicant is the parent of children in relation to whom an investigation, was undertaken, and that accusations had been made about him. The Respondent acknowledged in its internal review that the information sought by the applicant is about him and his family, and there is a general public interest in individuals being aware of the nature of records held about them by Government agencies. It also acknowledged that there is general understanding that the public interest is best served by transparency in Government decision-making and that transparency is best achieved when access to Government records is permitted. I accept that these are legitimate and weighty public interests in favour of disclosure of the information.

Public interest considerations against disclosure 26The general public interest considerations against disclosure are limited to those set out in the Table. 27The Respondent submitted that the following public interest considerations against disclosure are relevant:

• disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d) of the Table
• disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: cl 1(g) of the Table
• disclosure of the information could reasonably be expected to reveal an individual's personal information: cl 3(a) of the Table
• in the case of the disclosure of personal information about a child-the disclosure of information could reasonably be expected that it would not be in the best interests of the child to have disclosed: cl.3(g) of the Table 28In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered that s.14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government": at [26]. 29To raise these as relevant considerations in the application of the public interest test the Respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table. 30"Could reasonably be expected to" has been held to mean "something which is more than a mere, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d) of the Table disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: cl 1(g) of the Table 31The Respondent relied on cl.1(d) and cl.1(g) of the Table to refuse access to items 24-26, 28-31, 33-36, 38-39,42-44, 47, 48, or part thereof. 32Both factors have at their core the concept of confidential information. The Respondent submitted the information contained in those records was provided to it on a confidential basis. The Respondent submitted that disclosure of the information is reasonably expected to prejudice the supply of such information the agency. The Respondent relied on Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 in which the Tribunal found that if information is supplied pursuant to a duty of confidentiality, the disclosure of the information is likely to prejudice the operations of the agency from disclosure. In Robinson v Director General, Department of Health (2002) NSWADT 222 DP Hennessy held that the effective performance of a Governmental agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. If information obtained confidentially was provided to an applicant (albeit under the FOI Act), then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions. In Black v Hunter New England Area Health Service [2008] NSWADT 301 DP Handley noted, that the release of the relevant documents by a health service might discourage members of the public and professionals from reporting their concerns, and discourage professionals from making full and frank assessments. This could reasonably be expected to have a substantial adverse effect on the health service's performance of its functions, which include provision of health care and protection of individual patients and the wider community. This principle has been reiterated by the Appeal Panel in Macquarie University v Howell (No 2) [20091 NSWADTAP 19 at [10]: In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information. 33The Respondent also submitted that the information facilitates the effective exercise of its function of investigating and protecting children and young person from risk of harm and generally looking after their safety, welfare and well being. 34In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52]. 35In Camilleri the Appeal Panel considered that the question of whether information supplied was 'confidential information' should be examined "primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33]. The Respondent however provided no evidence in relation to its functions or how those functions might be prejudiced if the information were provided to the applicant. In the internal review Mr Meader referred to the Respondent being heavily reliant upon mandatory reporters and members of the public in general to provide information that enables the Respondent to protect potentially vulnerable children and families from risk of significant harm and that disclosure would potentially jeopardise the receipt of this type of information by the agency, if it were to erode public confidence in the agencies capacity to maintain confidentiality. 36The Respondent submitted that the information contained in the above records was provided to it in confidence and the disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence because the information has not been publicly disclosed. This argument, it seemed to me was somewhat circuitous, in circumstances where the information has not otherwise been made available. 37As noted above the Respondent provided no evidence about the circumstances in which the information was provided. 38I therefore was left to assess the Respondent's claims, as best I could. The objects of the Care Act, to which the Respondent had referred are set out in s.8 which provides: The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 39Section 9 sets out the principles for administration of the Act, importantly that in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. 40Section 23 refers to when a child may be at risk of significant harm, which is defined to include if current concerns exist for the safety, welfare or well-being of the child because of the presence, to a significant extent, of the child r is at risk of being, physically or sexually abused or ill-treated , including a single act. 41A person who has reasonable grounds to suspect that a child is at risk of significant harm may make a report to the Director-General: s.24. A report under s.24 may be made anonymously: s.26. I have referred above to s.29 which notes the protection of persons who make reports or provide information. 42Conveniently, the Respondent's website explains, relevantly: The Children and Young Persons (Care and Protection) Act 1998 talks about the child protection system in NSW. It explains how children and young people, who are at risk or being abused, should be cared for in NSW and how vulnerable families should be helped. It outlines the responsibilities of Community Services and other agencies, as well as parents, authorised carers. The Act covers things such as when to make a report of abuse or risk of harm, what happens when a report is made, and what happens when child or young person can't safely live with their family. ... principles of the Act The Act lays out objects and principles which guide how people should put the Act to practice in child protection and early intervention. These include: when making a decision about a child or young person the main consideration must be their safety, welfare and wellbeing the rights of children and young people to participate in decision making are recognised and there are specific obligations to put this principle into practice children and young people are entitled to an explanation about actions taken to protect them when taking action to protect a child or young person from harm, the least intrusive intervention is to be used .... Overall, the Act sees caring for children and young people as a responsibility shared by families, agencies and communities working in partnership. It promotes working with children, young people and families in flexible, responsive and innovative ways to meet their needs. ... The Act defines when a child or young person is 'at risk of harm', to make it clear when people may make a 'report' to Community Services about a child or young person's welfare. It says a child or young person may be 'at risk of harm' if: their physical and psychological needs are not being met they are not receiving necessary medical care they have been or are at risk of physical or sexual abuse they are exposed to domestic violence or serious psychological harm. 43As to reporting risk of harm the website notes: Anyone who suspects, on reasonable grounds, that a child or young person is at risk of being neglected or physically, sexually or emotionally abused, should report it to Community Services. Reasonable grounds is the standard that reporters must use in deciding whether or not to report to Community Services. It does not mean that reporters are required to confirm their suspicions or provide solid proof before making a report. A useful rule of thumb is to consider whether another person, when faced with similar information, would also draw the same conclusion. 44In relation to mandatory reporting the website notes that certain groups of people including health care workers, welfare workers, teachers, child care workers and police are required by law to report to the Respondent if they suspect (using their professional judgment and training), on reasonable grounds, that a child is at risk of significant harm. 45I accept that there is a strong public interest in the Respondent continuing to receive voluntary assistance and information about the welfare of children. I accept that, generally, disclosure could reasonably be expected to prejudice the supply to the Respondent of confidential information that facilitates the effective exercise of its functions. 46However I do not accept that the interview with the children can properly be said to fall into this category (F24 - 26, F28 - 31, F34 - 36, F48). Moreover, nearly all of the information in respect of the interviews had been provided to the applicant and the claimed redactions were not necessarily consistent with the previous disclosure. 47On the other hand, I accept that F38 - 39 and F44 which are file notes of discussions between the caseworker and the applicant's ex-wife may fall within this category, as does F42 - 43, a file note of discussions with the applicant's mother. I also accept that the redacted portion of F47 includes a précis of discussions with the applicant's wife. disclosure of the information could reasonably be expected to reveal an individual's personal information: cl 3(a) of the Table 48The Respondent relied on cl.3(a) of the Table to refuse access to items 17, 47, 48, 60 or part thereof. 49Clause 4(1) of Schedule 4 to the GIPA Act defines "personal information" as 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. 50The Respondent said it had taken steps that are reasonably practicable to consult with people whose personal information appears on the records. 51F17 contains the address of the applicant's son and that of his ex-wife. That information is personal information. Although it may be that the applicant is aware of the address, in the absence of evidence one way or the other, I prefer, in view of the evidenced acrimony between the applicant and his ex-wife, to err on the side of caution and find that this personal information may not be otherwise known to the applicant. 52F47 includes a précis of discussions with the applicant's wife. 53F48 has been released in full, other than with the redaction of 4 lines which refer to the child's conduct at school. I accept that that is personal information about the child. 54F60 is a letter, the addressee of which has been redacted. A letter in identical terms was sent to the applicant. The letters refer to 'your daughters'. It is clear then that the letter not addressed to the applicant is addressed to his ex-wife. I have no information as to whether the applicant was aware of his ex-wife's address at the date of the letter, so to that extent the information as to her address is personal information. the disclosure of information about a child could reasonably be expected that it would not be in the best interests of the child to have disclosed: cl.3(g) of the Table 55The Respondent relied on cl.3(g) of the Table to refuse access to items 24, 26, 29, 35, 36, 37, 47, 48, or part thereof. The Respondent submitted that the items contain personal information about a child and that the disclosure of the personal information is not in the best interest of the child; and the mother of the child having custody of the child does not consent for the release of the information. 56F24 has been released in full, other than with the redaction of 2 lines. 57F26 has been released in full, other than with the redaction of 2 lines which contains observations by the child in relation to her family. F35 repeats the observations in the formal version of the interview, but has already been provided to the applicant at F25. 58The redactions at F29, F36, F37 and F48 relate to the child's same conduct at school. 59F47 refers to the caseworker's observations about the parents, and a précis of discussions with the applicant's wife. 60The Respondent acknowledged the children whose personal information is contained in the records the subject of these proceedings are the Applicant's children. However, according to the information provided by the Applicant, he and his ex-wife are separated and his ex-wife has full custody of both children. I was informed by the Respondent that the applicant's ex-wife strongly objects to the release of personal information about the children. It was submitted that the consent by the Applicant alone is not sufficient to constitute parental consent for the release of information about the children. The Respondent submitted that none of those records should be released to the Applicant or, for that matter, to his ex-wife.

Balancing the considerations 61The Tribunal's only task is to determine whether there is an overriding public interest against disclosure of the withheld information, paying due regard to the principles in s.16 of the GIPA Act. This requires me only to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack at [19] and Hurst v Wagga Wagga City Council at [47]. 62The GIPA Act does not provide a formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70]. 63Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information such as personal information. Under s.54(5) of the GIPA Act any objection must be taken into account when balancing the public interest. The Respondent proceeded on the basis that the "third parties" would object to release of their personal information. From careful perusal of the attachments I accept that this was a reasonable assumption. 64The Applicant's motive in making the application for documents is a further factor that may be considered under s.55(1)(b) of the GIPA Act. The applicant wrote in his application for review that he believed his ex-partner had made the complaint about him and that, as a result, investigators had visited his workplace. The source of the complaint was not available to me - see discussion of s.29(1A) above. Information collected in the course of the investigation, however, was. Much of that information appears to be exculpatory of the applicant, and from that he may achieve some re-assurance. 65I have found there is a public interest in favour of disclosure by transparency in Government decision-making and that transparency is best achieved when access to Government records is permitted. I have also found that there are weighty public interests in favour of disclosure of the information, namely, that the applicant, as the parent of the children the subject of an investigation there is a public interest in favour of a parent being aware of the nature of records held about him or her with respect to their children. Further, accusations were made about him but, in the end result, on the information available to me, were groundless. Those circumstances weigh heavily in favour of disclosure. 66I have found disclosure could reasonably be expected to prejudice the supply to the Department of confidential information that facilitates the effective exercise of its functions. I have also found that disclosure could reasonably be expected to reveal personal information of other persons, namely the applicant's ex-wife, his son, his mother and the children themselves. I also accept that there is a strong public interest in having persons close to children being prepared to speak candidly with the Department about the welfare of children so that the Department's investigation can be as thorough as possible. 67I have attached significant weight to privacy issues in respect of the children as to aspects of their conduct at school and observations about their parents' relationship breakdown. 68In weighing up the public interest considerations for and against disclosure outlined above, I find the Respondent's submissions are not sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act in respect of all the information. I find that overall with the exception of the matters addressed below, the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations in favour of disclosure in respect of the majority of the information in the primary documents. 69I agree that the redactions to the following information (from the version at Annexure F to Mr Meader's affidavit) are required in the documents because, in respect of the redacted material, and after consideration of all the evidence, I find the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure: F17, F26, F29, F36 - 39, F42 - 43, F47 - F48.

ORDERS 1.The Respondent provide to the applicant the information in all the documents other than:

• the redactions the subject of the s.29(1A) certificate; and
• the redactions at F17, F26, F29, F36 - 39, F42 - 43, F47 - F48. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 April 2014