McInnes v Department of Education and Communities

Background 7The Tribunal at first instances found the that Mr McInnes had contacted the Child Protection Investigation Directorate (CPID) in 1996 alleging that he was assaulted and abused by a teacher when he was a student at a New South Wales Public School some decades ago. The CPID, now called the Employee Performance and Conduct Directorate (EPAC), commenced an investigation but concluded there was not enough evidence to sustain the allegations. In 2007 he applied under the Freedom of Information Act 1989 (FOI Act) for access to the CPID file and was provided with 235 pages of which 17 pages of information were redacted in whole or in part. 8On 13 September 2012 the appellant applied to the respondent for access to pages 181 and 182 of the file. These pages are part of the 17 pages to which the appellant was denied access in 2007. This application was refused. On internal review, however, three lines of information from page 181 and two lines from page 182 were provided to the appellant. The appellant applied to the ADT for review of this decision (matter 133088). 9On 15 October 2012 the appellant made a second access application in relation to the remaining 15 pages of the CPID file under the GIPA Act. Access was refused but on internal review one line from page 21 was provided. The appellant applied to the ADT for review of this decision (matter 133040). 10The two applications were dealt with together. It was not in dispute that the information subject to the applications is government information held by an agency: GIPA Act, s 4(1). After the parties had filed their respective written material (evidence and submissions), it appears that there was no oral hearing and the matters were decided on the papers.

Decision at First Instance 11In its reasons for decision, the Tribunal referred to the relevant legislative provisions of the GIPA Act and set out its understanding of what the Tribunal was required to do in [17] as follows: In 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. 12The appellant did not contend that there was any error of law by the Tribunal in this regard. 13The Tribunal drew attention to the statutory presumption, and the general public interest, in favour of disclosure of the information in question. In addition, the Tribunal accepted that there were additional specific public interest considerations in favour of disclosure that were applicable "albeit it in the most general sense" and should be considered in the required weighing or balancing process - see [10], [18], [21] and [22]. Once again, this was not said by the appellant to involve any error of law. 14The Tribunal then went on to find that there were public interest considerations against disclosure. Those considerations to which the Tribunal attached significant weight were summarised at [58]: I have found that the disclosure could be reasonable expected to prejudice the supply of confidential information to the Respondent that facilitates the effective exercise of its functions; that the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the Respondent; that the disclosure is one that could be reasonably expected to reveal an individual's personal information and/or contravene an information protection principle under the PIPP Act. I have attached significant weight to these matters. The Tribunal dealt with the public interest considerations against disclosure in some detail at [23]-[51]. Mr McInnes did not submit that the Tribunal's identification of these considerations involved any error of law. 15Finally, the Tribunal weighed the public interest considerations in favour of disclosure and those against disclosure. It concluded that the respondent had discharged the onus under s 105 of the GIPA Act and that there was an overriding public interest against disclosure of the information redacted in the documents in question: at [59]. Mr McInnes did not seek to argue that any specific error of law was involved in this process.

Questions of Law 16Mr McInnes's notice of appeal identified two matters under the heading "The question of law arising from the Tribunal's decision is" as follows: Mr Ray from EPAC told ADT (Naida Isenberg) that I made contact with a teacher in 2002; not true... The Respondent claimed that it (is possible) that the Applicant may know some of the personal information which has been redacted; not true. 17The respondent contended that neither of these matters raised any question of law. 18Mr McInnes's oral submissions were in substance that information that was not true had been put before the Tribunal at first instance and this was not lawful. Mr McInnes's case was not that the material Mr McInnes maintains was untrue was received in breach of the rules of procedural fairness or as a result of some other error of law on the part of the Tribunal. Rather, his point was that it was wrong for an officer of the respondent to put before the Tribunal information that was not true. 19It is appropriate to deal with each item of information which was said to be untrue separately.

Contact in 2002 20Whether or not the information concerning contact with a teacher in 2002 was untrue, this ground as formulated by Mr McInnes does not raise a question of law. 21It is also clear from the Tribunal's decision that Mr McInnes had had the opportunity to respond to the statement of Mr Ray concerning Mr McInnes's having had some contact with a teacher in 2002 which Mr McInnes said was not true. At [16] of her reasons, Judicial Member Isenberg noted: The Applicant had expressed concerns in his submissions that it had been alleged by the Respondent that in 2002 he had contacted the teacher about whom he had complained. None of the documents the subject of the review refer to any such contact. 22Further and in any event, the Tribunal's reasoning did not depend upon or refer to any contact in 2002 as relevant. 23Even if it were accepted that this information concerning contact in 2002 was untrue, there was no legal or other error by the Tribunal in how it dealt with that information.

Possible Knowledge of Personal Information 24The second matter said to be untrue was that it was possible that the appellant may have known some of the personal information which had been redacted. Once again, as formulated, this ground does not raise a question of law. 25Further, the material complained of does not appear to have been a statement of fact put before the Tribunal by the respondent by way of evidence. Rather it appears to the Panel to have been an acknowledgement or submission. It was accepted by all parties that Mr McInnes "had located the whereabouts of the teacher and had contacted her" in 2005. Having regard to that material, the respondent was acknowledging that on this basis it could be inferred, and in that sense it was possible, that Mr McInnes may have known some of the personal information which had been redacted. Thus, the Panel does not accept that what was put to the Tribunal (as recorded at [45]) concerning the possibility that Mr McInnes already having knowledge of certain personal information could amount to putting false information to the Tribunal. 26In the circumstances, this complaint made by Mr McInnes is not established. Moreover, even if false information had been put before the Tribunal by the respondent as Mr McInnes contended, there is no basis for concluding that the Tribunal made any error of law in how it received or dealt with the material.

Conclusion on Appeal on Questions of Law 27The matters relied upon by Mr McInnes do not raise questions of law within the scope of the ADT Act, s 113(2)(a) and no error of law by the Tribunal has been made out. Accordingly, the Appeal Panel must dismiss the appeal on the questions of law.

Extension to the Merits 28Mr McInnes also sought leave to have the appeal extended to review the merits of the Tribunal's decision. The basis for this part of the appeal was stated to be: Naida Isenberg may have been persuaded on her decision by the wrong information by the Respondent. (emphasis in original) 29The Appeal Panel decided to refuse leave for a number of reasons. First, there was no error of law in the Tribunal's reasons for decision or in its conduct of the proceedings for the reasons set out above. Thus, there was no requirement to reconsider the merits of the matter on that basis. It should be noted, however, that an application for leave of the Appeal Panel under s 113(2)(b) to extend to a merits review does not require the applicant first to demonstrate or argue an error of law: Lloyd v Veterinary Surgeons Investing Committee [2005] NSWCA 456; 65 NSWLR 245 at [14] and [60]-[63] (per Tobias JA, with Spigelman CJ agreeing). 30Secondly, even if the information concerning contact in 2002 was not true it was not apparently accepted by the Tribunal. It was not the subject of any finding nor did it appear to have had any impact on the Tribunal's reasoning. The Tribunal's consideration of that information is set out above at [21] of these reasons. A review of the merits of the decision would not be justified as the prospects of the Appeal Panel reaching a different conclusion depending upon whether or not the information that "[i]n 2002 Mr McInnes came into contact with [the teacher] by coincidence" (to quote paragraph 34 of Mr Ray's statement which was before the Tribunal at first instance) was untrue are insubstantial. 31Thirdly, even if the Tribunal accepted that it was not true that it was possible that Mr McInnes may have known some of the personal information which had been redacted this does not assist his case. If in fact he did not know that information, then it would more readily be found that disclosure of that information could be reasonably expected to have revealed an individual's person information within the GIPA Act, item 3(a) of the Table to s 14. This consideration tells against rather than in favour of disclosure, which is what Mr McInnes was seeking. 32Finally, none of the material or submissions before the Appeal Panel suggested that there would be any injustice in this case in refusing leave to extend the appeal to a review of the merits of the decision under appeal. 33For these reasons, leave to extend the appeal to a review of the merits was refused. 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. Principal 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: 18 February 2014