Miskelly v Secretary, Department of Education - [2019] NSWCATAD 48 - NSWCATAD 2018 case summary — Zoe

NSWNSWCATAD

Miskelly v Secretary, Department of Education

[2019] NSWCATAD 48

NCAT Administrative and Equal Opportunity|2018-11-21

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2018-11-21

Catchwords

and(d) the publication of the current redacted versions of Documents 13 and 18be prohibited.

Source

Original judgment source is linked above.

Catchwords

and(d) the publication of the current redacted versions of Documents 13 and 18be prohibited.

Judgment (41 paragraphs)

[1]

es (NSW) [2014] NSWCATAD 43 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, Re Environment Centre NT and Department of the Environment Sport and Territories (1994) 35 ALD 765 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Siu v Department of Family and Community Services [2016] NSWCATAD 115 Smolenski v Commissioner of Police (NSW) [2015] NSWCATAD 21 Transport for NSW v Searle [2018] NSWCATAP 93 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Texts Cited: Nil Category: Principal judgment Parties: G Miskelly (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Mr Mackinnon (Agent) (Applicant) Maddocks (Respondent) Ms Chetty (Information Commissioner) File Number(s): 2018/00167716 Publication restriction: Pursuant to s 64 CAT Act I order that:(a) the disclosure of the name of Witness A;(b) the publication of evidence given before the Tribunal in private, or of matters contained in confidential documents received in evidence by the Tribunal,(c) the disclosure to applicant in the proceedings of confidential evidence given before the Tribunal, or of the contents of a confidential document received in evidence by the Tribunal, in relation to the proceedings; and(d) the publication of the current redacted versions of Documents 13 and 18be prohibited.

[2]

[3]

Background

In August 2017 the applicant made an application for access. There was some negotiation leading to a modification of the terms of the application. Certain documents were released to the applicant, some of which were redacted.
In February 2018 the applicant sought an internal review of the decision on the original application as modified. An internal review decision was issued in April 2018. An application for external review was lodged in the Tribunal in May 2018. Mediation was unsuccessful in resolving the matter.
Thirty two documents (totalling 302 pages) remain in contention. One of those documents has been wholly withheld by the agency and others have been redacted either in a major or minor way. The challenge is to the decision to withhold or redact.
The application as amended sought access to "documents and briefings to the Department of Education Secretary and the following Executive Directors and Directors advising them about (i) anti-social and/or (ii) extremist behaviour [ASEB] in NSW schools from 1 February 2017 to 11 August 2017". The application then went on to name a considerable number of senior officers of the agency. There are a number of items excluded from the aapplication, in particular "any personal information of individuals contained in the records" and there was a later clarification that access to individual reports of ASEB incidents in schools was not sought, except where it was attached to a briefing report or email held by one of the nominated senior officers. The names and other identifying information of individuals other than officers of the department have been deleted from records provided and have been marked to show that they are personal information outside the scope of the access request (s 74 GIPA Act).
The process for deciding whether to grant access to information is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the Table in s14 of the GIPA Act). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286)
In summary the GIPA Act relevantly provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure (s5 GIPA Act). A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure (s9 GIPA Act). The public interest considerations in favour of disclosure are set out in s12 GIPA Act.
There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure (s13 GIPA Act). The public interest considerations against disclosure are set out exhaustively in s14 in a Table. Section 15 of the GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure.
There are obligations on the agency to conduct reasonable searches to consider the information (s53 GIPA Act); and it may consult with the access applicant to determine the precise scope of the access request. Agency decisions should be made in conformity with s58 GIPA Act, and notice of a refusal decision and reasons are to be given under s61. The agency can either delete or withhold information on the basis that deleted information is either not relevant or because the agency has decided to refuse access to it (s74 GIPA Act). Finally it is noted that the agency has the burden of establishing to the Tribunal that the decision to withhold is justified (see s105 GIPA Act).
Each of the officers named in the applicant's request conducted searches of records held by them in order to see whether they responded to the request for information. This aspect is not challenged. I am satisfied that reasonable searches have been conducted.
The agency consulted with various third parties to obtain their views before releasing information relevant to them (s54 GIPA Act).
Under s12 of the GIPA Act the following public interest considerations in favour of disclosure are relevant: 1. the statutory presumption in favour of disclosure contained in s5 GIPA Act; 2. the legal right of access to government information set out in s9 GIPA Act; 3. the general public interest in favour of disclosure s12 GIPA Act; 4. disclosure could reasonably be expected to promote open discussion of public affairs, enhance government accountability and transparency and contribute to positive and informed debate on issues of public importance, see s12(2)(b) GIPA Act; 5. disclosure of the information could help the public understand the procedures and processes of investigating incidents of ASEB in NSW schools; and 6. disclosure of the information could reasonably be expected to inform the public about the operations of the agency and increase public awareness of the agency's strategies and programs for managing ASEB in NSW schools.
The public interest considerations against disclosure can only consist of those items (or grounds) set out in the clauses in the Table in s14 GIPA Act. These are the only considerations that may be taken into account (see s14(2) GIPA Act). Section 14 requires consideration of whether the disclosure could reasonably be expected to have the effects referred to in the various provisions of the Table in s14. It was held in Leech v Sydney Water Corporation [2010] NSW ADT 298 that the test to be applied is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility or risk, and must be based on real and substantial grounds not purely those which are speculative or hypothetical.
Helpful submissions were received from the Information Commissioner who has a right to be heard and appear in a matter before the Tribunal, see s104(1) GIPA Act. The Information Commissioner is an independent champion of open government with a role that includes promotion of the objects of the GIPA Act together with public awareness and understanding of the GIPA Act.
The Tribunal notes that the presumption in favour of disclosure (s5 GIPA Act) read with the Object of the Act (s4 GIPA Act) and ss9 and 12 GIPA Act provides a starting point of "strong weight" to the various factors identified in favour of disclosure. It does not seem particularly useful for the Tribunal to attempt to further fine-tune this approach by cutting and dicing degrees of strength of the factors favouring disclosure in respect of each of the 32 documents.
Accordingly it is appropriate to start from a position that there is a strong presumption in favour of disclosure of the relevant documents which requires even stronger reasons to outweigh that presumption to result in the information being withheld. I keep in mind, as part of the balancing process, that ASEB may often involve criminal acts or threats thereof. On the other hand ASEB incidents can be impulsive actions from under age, often vulnerable, persons which could have long term consequences for their lives and liberty. There is a risk to school communities and to Australian society more broadly. Minimising that risk involves highly sensitive handling based on access to confidential information and interagency cooperation. Preventative measures often need to be subtly and privately applied, not only to reduce the risk of harm to the community but also to persuade young persons not to put themselves at risk.
There were three witnesses from the respondent agency. The principal witness was Ms M O'Brien, an executive officer of the department. Ms O'Brien testified that the major function of the agency was to provide a school education and social foundations in a safe and supportive environment.
The agency provides support networks to government, denominational and private schools. It conducted a program called School Communities Working Together under which schools in an area work closely together to help vulnerable students.
The agency obtains incident reports but is careful not to label or stigmatise students because of the lifelong consequences which could follow. The agency provides advice to schools on the handling and prevention of incidents. This involves assistance from other government agencies and information sharing led by the Department of Education.
Ms O'Brien stated that the integrity of the incident reporting system was fundamental to the functions of the department so that difficulties can be identified early, addressed and defused. Part of this requires a high degree of trust and a need for confidentiality particularly to prevent stigmatisation because of the lifetime effects that this may have. Furthermore she stated that support services need to be provided in the long-term throughout a student's education and that premature information release could seriously compromise the department's ability to respond and perform its function of providing the safe and supportive educational environment.
As to incident reports Ms O'Brien said that the agency needs to withhold some of the information in these reports because they involve assessment of risk, strategies to minimise risk, personal information of people involved and details of local area principals networks which if revealed could identify the location of incidents and, without much more work, identification of people involved in incidents.
Ms O'Brien said that informants on staff also need to be assured of confidentiality in order that they will make a full disclosure of relevant matters and feel no inhibition.
If students are involved in an incident and their identity is revealed this could have lifelong consequences even though there may often be underlying issues in their lives unrelated to, but acted out through ASEB. Identification could lead to stigmatisation and irreparable harm to the child. She also said that persons involved in incidents are monitored and require support over the long-term.
Ms O'Brien said that local area principal networks need to be confidential to prevent the identification of the persons involved in the network, the schools involved, and the individual students at those schools. The reputation of the school is a very important factor to principals because of the effect on enrolments that adverse publicity can generate. Ms O'Brien said that principals may not feel as able to be frank in their assessments if confidentiality is broken.
Witness A (whose identity and evidence is subject to a confidentiality order) gave confidential evidence concerning support services for NSW schools. Witness A testified to the necessity to engage the whole school community (staff, students, and their families) to develop trusting relationships. Witness A was concerned that the revelation of identities of persons could result in harassment and intimidation of those persons. As to incident reports Witness A said that details needed to be kept confidential so that the informants can trust that their identities and the information they provide will not be made public both for their own wellbeing, and to encourage them and others to keep lines of communication open.
The confidential oral evidence of these two witnesses gave emphasis to the statements that they had made in their affidavits. Particularly the damaging effects of stigmatisation of underage persons and the significant problem with loss of enrolments in a school. The witnesses testified to the success of the policy approach developed by the agency and strategies that had been adopted, and expressed concern that disclosure could threaten the success of the approach. There was also concern expressed about the risk of inflaming community tensions through the risk of false or complete information becoming public.
Ms Stathis testified as to the document search process and consultation with other agencies. She did not consult with the individuals involved in any of the incidents. Ms Stathis said that consultations had been held with various state and Commonwealth government departments and agencies as well as various state and independent school bodies. Responses and objections from those third parties were taken into account in making a decision about disclosing information.
I have grouped similar documents together but considered each individually, then considered each of the documents that do not fall readily into groups.

[5]

Clause 1(d)- Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

With respect to clause 1(d) in the table to section 14 of the GIPA, the Tribunal must be satisfied that the information was obtained in confidence, disclosure of the information could reasonably be expected to prejudice the supply of such information to the respondent in the future, and the information facilitates the effective exercise of the respondent's functions (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]).
In Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [32] the Appeal Panel held that the enquiry as to whether the information was 'confidential information' "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it."
What I must determine is whether disclosure could reasonably be expected to have the prejudicial effect. It is not necessary to show that there is an express obligation or understanding about the information being obtained in confidence as this can be inferred from the circumstances in which the information was obtained (see Bray v North Coast Area Health Service [2009]NSWADT 93). One determines whether or not the information is confidential by referring to what the agency says the conditions were under which it conducts its services in relation to such matters particularly the circumstances at the point of receipt of such information, see Commissioner of Police for NSW and Camilleri [2012]NSW NSWADTAP19. In deciding whether or not information is confidential the informants may have been advised that it would be treated confidentially, or they may have a reasonable expectation of that. See Amos v Western NSW Local Health District [2017]NSWCATAD 359.
In considering whether or not there would be a prejudice to the future supply of confidential information one does not ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency's general ability to obtain such information in the future would be likely to be prejudiced (Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19).
The agency does need to establish on the evidence what facts may give rise to a prejudice to the future supply of information. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found, on the evidence, that it could reasonably be expected that disclosure of information generated as part of the 'Infrastructure Investment Assurance Framework' would prejudice the future supply of information to that Framework.
In Smolenski v Commissioner of Police (NSW) [2015] NSWCATAD 21, the Tribunal found that the disclosure of information obtained from federal agencies in the course of vetting an application for a special constable position could reasonably be expected to prejudice the future supply of this type of information because it facilitated the agency's function of selecting the most suitable candidates for the positions.
In considering whether or not there will be an effect on the exercise of the agency's functions, if the agency relies on reports from students, staff, and the public to help it fulfil its function to provide a safe educational environment, those persons may be reluctant to make such reports if they do not have their privacy protected, see Bourke v Roads & Maritime Services [2012] NSWADT 272 (which dealt with reports of maritime hazards). The evidence establishes that in performing its educational functions the agency rightly sees the safety of students and staff as of the highest importance.
The evidence was that information in the incident report was provided to the agency on an understanding of confidentiality. Given the nature of the incidents dealt with, it is easy to infer that those who provided the information, did so with the expectation that it was confidential information and that it would remain so.
An analysis of whether the disclosure of the information would prejudice the supply of confidential information in the future has been undertaken by the Tribunal on a number of occasions
In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29, the Appeal Panel considered an application under the Freedom of Information Act 1989, for access to a report of an investigation prepared by the Audit Directorate of the Department of Education and Training into allegations by the applicant of bias and corruption relating to a panel selection process to appoint a primary school principal. Mr Mullett was the parent representative on the selection panel and voted against the successful candidate.
The Appeal Panel observed at [50] that Conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future cooperation with similar inquiries However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred, and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise"
This reasoning has been considered and adopted by the Tribunal in other cases that have considered clause 1(d), and whether disclosure of confidential information would prejudice the supply of information that facilitates the effective exercise of an agency's functions (e.g. Jones v Department of Education [2017] NSWCATAD 51). It is submitted that this observation is equally applicable to the kind of information that has been supplied to the respondent for the purposes of facilitating the effective exercise of its functions.
Ms O'Brien's evidence is to the effect that, given the sensitive nature of the incidents, if the agency does not maintain confidentiality, it is likely that individuals will be less inclined to come forward, prejudicing the supply of confidential information of this kind to the agency in the future. The nature of the information provided is of such a kind that, if revealed, it is likely to bring with it a high degree of publicity. It is reasonably likely that the disclosure of this information will lead people to be, at a minimum, inhibited and guarded, when supplying information in relation to incidents of ASEB. Some people could withdraw from the process altogether and cease to provide the agency with confidential information that would facilitate the agency effectively exercising its functions.
The incident report is also a communication between officers of the agency. To manage and investigate incidents, the agency's executive officers need to be able to freely discuss discreetly and honestly how to best manage and resolve various sensitive issues affecting the operations of the school. If the records of what would reasonably be assumed to be confidential discussions concerning school staff, students or parents are released in full, the ability of the agency and school to perform their day to day functions are likely be seriously impaired
Accordingly, it was submitted that disclosure of the information could reasonably be expected to prejudice the supply of such information in the future pursuant to clause 1(d) of the table to section 14 and is a significant public interest consideration against disclosure.

[6]

Clause 1(e)- reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

For the public interest consideration against disclosure in clause 1 (e) to apply, the respondent must establish that the information in issue could reasonably be expected to 'reveal a deliberation' in such a way to 'prejudice a deliberative process' of the respondent. That is, a relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes' (Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113).
The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal ("the AAT") in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 (Re Waterford) at [58] to [61], in the context in which it appeared in section 36 of the Freedom of Information Act 1982 (Cth) (FOI Act), as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the FOI Act are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency, and as such Re Waterford remains instructive.
The Tribunal defined 'deliberative process' as 'involving the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... it by no means follows, therefore, that every document on a departmental file will fall into this category... documents disclosing a deliberative process must, in our view, be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency'.' The tribunal adopted this analysis in Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113.
In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [106] the Tribunal accepted the argument that the disclosure of a deliberative process which would result in staff feeling inhibited in providing frank and honest views, or decline to participate in the deliberative process altogether, outweighed the potential benefit from the release of the withheld information.
As mentioned previously, to manage and investigate incidents, the respondent's executive officers need to be able to freely discuss privately and frankly how to best manage and resolve sensitive issues affecting the operations of the school. If the records of discussions (deliberative processes) concerning students or parents are released in full, the ability of the respondent and school to perform their day to day functions may be seriously impaired. Ms O'Brien and Witness A gave clear and credible evidence that releasing the sensitive information in question could be reasonably likely to have this effect.
Accordingly, it is the position of the Respondent that disclosure of the information to the Applicant could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or agency pursuant to clause 1(e) and is a relevant public interest consideration against disclosure.

[7]

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

This public interest consideration is submitted to be arguably the most significant public interest consideration against disclosure of the information to the applicant.
As outlined in the statement of Ms O'Brien dated 17 September 2018, the primary function of the Respondent is to educate students in government schools, which includes ensuring students are educated in a safe and supportive environment, and managing school issues that arise from day to day which can include the management of student conduct and investigating incidents of ASEB.
With respect to the records of incident reports, the same considerations apply here as discussed earlier concerning the need for employees of the agency to be able to freely discuss under a cone of confidentiality how to best manage and resolve sensitive ASEB issues affecting the operations of schools. The evidence supports the proposition that if records of discussions concerning students or parents are released, the ability of the agency and the school system to perform their day to day functions may be seriously impaired.
In Jenkinson v Department of Education and Communities [2013] NSWADT 280 the Tribunal accepted that disclosure of information supplied in the course of an investigation into a complaint could reasonably be expected to prejudice the effective exercise by the Department of its functions in respect of the health and wellbeing of staff.
Consistent with this decision, the disclosure of information that is provided by members of the school community in the course of investigating an incident of ASEB could also reasonably be expected to prejudice the effective exercise by the Department of its functions in managing such incidents, as informants may be less likely to provide frank information if their identity will be revealed.
To release the names of the schools, principals, or principal network groups involved in specific incidents the subject of a report would aditionally reveal the names of some of the other schools that are participating in the School Communities Working Together strategy. The strategy builds on the existing efforts of schools to provide and maintain safe learning environments for students. The respondent strives to work in partnership with parents to provide an environment that encourages students to connect with each other and their community, so that they can succeed. Parents, teachers and the community all play a role in fostering this environment.
It is submitted that, disclosing the names of the schools, principals, network directors or principal network groups could reasonably be expected to prejudice the effective exercise of the respondent's functions because schools and community members already participating in the School Communities Working Together strategy may feel targeted and subsequently may withdraw from the program, and schools who are considering participating may choose not to do so. This could reasonably be expected to compromise the Respondent's capacity to identity and manage ASEB incidents.
Accordingly, it is submitted that the disclosure of the information to the Applicant could reasonably be expected to prejudice the effective exercise of the Respondent's function pursuant to clause 1(f) and is a significant public interest consideration against disclosure

[10]

Clause 2(a) -Reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant

The evidence was that a key aspect of the agency's strategy in addressing ASEB is encouraging and receiving information from staff, students and other members of the school community. The Respondent relies on these people to act as "informants" by reporting potential incidents of ASEB that could affect the wellbeing of a student or school community, in a manner where the information that they provide, as well as their identity, is treated sensitively and confidentially.
In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel of the Administrative Decisions Tribunal held at [47] that an "informant" is not "restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation that is, a person who gives information".
In that decision, the Appeal Panel found that the informant's identity could be protected by reliance on the public interest consideration expressed in clause 2(a) of the Table to s 14 of the GIPA Act, and that related to the maintenance of confidentiality expressed in consideration 1(d) of the Table to section 14 of the GIPA Act.
It is submitted that the release of the information in the incident reports would be likely to reveal or tend to reveal the identity of the informants who provided the information.
If the identity of the people who give information became publicly known, it is the opinion of Ms O'Brien and Witness A (and can readily be inferred in any case) they will be far less likely to supply the Respondent with information in the future. This is particularly so given the sensitive nature of ASEB complaints and the closeness of the school community. If the identity of those people is revealed, the Respondent will be significantly prejudiced in its ability to receive information of this kind from informants in the future.
Accordingly, the public interest consideration under clause 2(a) is of particular significance to the determination of whether the information contained within the records and correspondence regarding incidents reports should be released, and the Respondent submits that substantial weight should be given to this consideration.

[11]

Clause 2(b) -Prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

The public interest consideration under clause 2(b) of the table to section 14 of the GIPA should also, it was submitted, be given great weight by the Tribunal. The meaning of the word "prejudice" is to "cause detriment or disadvantage", or to "impede or derogate from" (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]).
Senior Member Montgomery noted, in relation to the similar exemption in cl 14(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), that this consideration operates " to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods" (UC v Commissioner of Police, NSW Police Force [2005] NSWADT 272 at [32], accepted and applied in DEZ v Commissioner of Police, NSW Police Force [2015] NSWCATAD 15, at [75] and Sawyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 61 at [44]
For the public interest consideration to apply, there is no need for an actual contravention of the law to be shown, since the public interest consideration encompasses both actual and possible contraventions. Information has been withheld by the agency here to preserve the integrity of intelligence-gathering as a method of preventing contraventions or possible contraventions of the law. This would present a reasonably forseeable (as opposed to irrational, ridiculous or absurd) risk to not only public safety, but also school staff, police officers and most importantly, young vulnerable children.
It is further submitted that the public disclosure of this kind of information may assist people to avoid detection by subverting any future police investigation or investigation undertaken by the respondent. The possibility of individuals avoiding detection as a result of such a disclosure could pose a risk to or jeopardise public safety
In his request for internal review, the applicant questioned whether information could be released if the incident does not involve an actual ongoing police investigation. Even if enquiries were to be made by the respondent, it is understood that NSW Police would not confirm whether an investigation was active. Given that the incident reports captured by the access application are relatively recent, and the students involved are likely to still be in school, the Respondent submits that it is appropriate for such information to be protected to ensure that any ongoing investigations are not disadvantaged or impeded.

[13]

Clause 3(a) -Reveal an individual's personal information

"Personal information" is defined in Schedule 4 clause 4(1) of to the GIPA Act to mean "information or an opinion (including information or an opinion forming part of a database 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 " (emphasis added)
The Information Commissioner has published Guidelines 4 - Personal Information as a public interest consideration under the GIPA Act (Guidelines), which are relevant when determining whether there is an overriding public interest against disclosure (ss 14(3) and 17 GIPA Act) The Guidelines set out what is meant by 'personal information' in the GIPA Act, and at clause 17 states Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person.
The kind of information withheld under clause 3(a) includes parts of statements containing personal information, a person's name, employment information and personal opinions. This kind of information meets the definition of personal information found under clause 4 of Schedule 4 to the GIPA Act because it is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information, and when held by an agency such as the respondent, is generally only disclosed to the person to which the information directly relates.
In his amended application received by the respondent on 16 November 2017, the Applicant stated that he excludes "any personal information of individuals contained in the records" Accordingly, the names and other identifying information of individuals, other than officers of the respondent named in the access application, were deleted from the records provided and marked with the notation s74 Outside scope - personal information of individual"
However, in some instances, even though the individual is not named or the name is deleted, the remaining information could enable an individual to be identified, particularly where the information involves an incident at a school.
Given the number of ASEB incidents that are reported, and knowledge of those incidents within the school community, it is considered by Ms O'Brien very likely that the personal information of individual's would be revealed if the information was disclosed.
I was referred to the NSW Privacy Commissioner's Special Report to Parliament, Student A and the Minister for Education, 7 May 2002, which found that information which identified a student in his "school community" amounted to "personal information". In that case, the Minister had identified the student's gender, age, the year the student was enrolled, a description of the event, the date on which the student was removed from the school and the date on which a school assembly was planned. Although the name of the student and the school in question was not disclosed, the combination of items of information about "Student A" enabled the receivers of the information to ascertain the student's identity
The information requested by the applicant contains details of the incident such as the date, the name of the school, school network and director and what happened to the students involved. If disclosed, the identity of the individuals involved would be readily apparent or easily ascertainable within the school community.
As disclosure under the GIPA Act is disclosure to the public in general, the Respondent cannot impose conditions on how information released in response to the Applicant's application is used or disseminated.
Consequently, it is submitted that significant weight should be given to this public interest consideration against disclosure of the information, as it could reasonably be expected to reveal personal information of students, staff or other third parties, who provided information to the Respondent

[14]

Clause 3(b) -Contravene an information protection principle under the Privacy and Personal Information Protection [PPIP] Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy [HRIP] Act 2002

The Respondent also contends that the disclosure of information in relation to incident reports would contravene the disclosure information protection principle in section 18 of the PPIP Act.
Section 18 of the PPIP Act provides 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it (emphasis added)
Clause 4 of Schedule 4 of the GIPA Act adopts the definition of "personal information" in the same terms as section 4(1) of the PIPP Act.
Disclosure of personal information without the consent of third parties is likely to contravene an Information Protection Principle under section 18 because the information was provided to the respondent for the specific purpose of enabling the incident support unit to provide specialist safety advice and support to schools to assist students and their families manage high risk behaviour, limit the impact on the school community and for other officers to provide ongoing assistance to the respondent.
To provide access to the information under the GIPA Act would not be in keeping with the purpose for which the information was collected, and none of the exceptions under section 18 of the PIPP Act apply to the Applicant
As the disclosure of the personal information could reasonably be expected to contravene an information protection principle, it is submitted that this public interest consideration outweighs any public interest considerations in favour of disclosure

[15]

Clause 3(f) -Expose a person to a risk of harm or of serious harassment or serious intimidation

These records concern the investigation of serious issues concerning ASEB in NSW schools and the development of strategies to manage such incidents. It is submitted that disclosing the information could reasonably be expected to expose people to a risk of harm or of serious harassment or serious intimidation. The Tribunal in Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 noted at [49] that: The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation' It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it. (emphasis added)
The definition of the words "harm", "harassment" and "intimidation" received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered (AEZ at [89]).
After considering the concept of "harm" in criminal, defamation and child protection cases, the Tribunal found that [85]: In the context of s 14 of the GIPA Act I am inclined to the view that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public consideration against disclosure in part 4 of the section 14 Table A detrimental effect may be to a person's physical, psychological or emotional wellbeing (emphasis added)
After considering the concept of "harassment" in anti-discrimination law the Tribunal found that [87]: a consideration of those laws reveals that a common element is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances see Sex Discrimination Act 1984 (Cth), s28A(1), Anti-Discrimination Act 1977 (NSW), s 22A, and Equal Opportunity Act 1984 (SA), s 87(9)
The Tribunal concluded that [89]: All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. (emphasis added)
The concept of "intimidation" was held by the Tribunal to be closely related to the concept of "harassment" and was "to make timid, or inspire with fear, overawe, cow" [at 90-93].
The Tribunal elaborated at [94] that Importantly the intimidation or harassment referred to in point 4(f) [sic] is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient (emphasis added)
Releasing the incident reports, briefings, emails and other communications is reasonably likely to mean that the Respondent will be unable to obtain such information again from any individual, staff, student, parent or community member, as they will be fearful of the likely ramifications and of being identified.
The evidence was that staff in schools have expressed concerns that if students, staff and/or the school are identified there will be ramifications and they fear that they will be exposed to a risk of harm and serious intimidation and/or serious harassment.
Furthermore, the Respondent's officers need to be able to confidentially discuss how to best manage and resolve sensitive issues affecting the operations of a school, without the concern that their identity and role in the management and resolution of those operations will be publicized.
A number of third parties that are involved in developing strategies and policies to support government initiatives to manage ASEB in schools also specifically objected to the release of information that identified the names and roles of their representatives, for the reason that it could expose them to a risk of harm or of serious harassment and/or intimidation (statement of Ms Stathis 17 September 2018)
The Tribunal can be satisfied, it is submitted, on an objective basis, that the disclosure of the names, or other information that would enable identification of school staff, departmental officers and students, would expose those people to a real risk of harm. Mere discomfort or tension is not ordinarily enough (Ermel v Department of Finance and Services [2013] NSWADT 183). It is submitted that, given the nature of ASEB incidents in schools, and public interest in those sensitive incidents, the risk of harm to those identified in the incident reports could 'reasonably be expected" and warrants the nondisclosure of their names and other information that could allow them to be identified.

[17]

Applicant's Submissions

The applicant submitted that there should be evidence of a reasonable expectation of harm, prejudice and so forth not opinion. No suggestion was made as to what sort of evidence could be led. What is to be reasonably expected involves a prediction of future events.
Evidence of the opinion of experienced bureaucrats in the field, understood in the light of human experience generally, is perhaps the best basis to decide if a result is to be reasonably expected.
The applicant submits that the basis of certain parts of the respondent's evidence is unclear, but looking at that evidence, any lack of clarity is minor or not obvious.
The applicant queries the agency's disclosure concerning information from other government agencies saying it cannot understand or accept that a government agency would withdraw cooperation due to a lawful release of information.
This is a matter for the applicant to take up with the other agency. From this agency's perspective, Table item 1(c) provides for a public interest consideration against disclosure and it may properly take it into consideration and take into account that after consultation with the source of the information the objection to disclosure is maintained. It can then make a judgment whether there will be prejudice to relations or the obtaining of confidential information. The agency's decision is then open to review, and its evidence and position can be tested.
The applicant also makes a number of valid points about the desirability of open government, the citizens being informed of important public issues, and of public servants being expected to give their views frankly without being concerned with personal consequences.
The applicant made submissions of a general nature regarding the desirability of building community engagement and support through openness rather than secrecy; and the desirability of having citizens judging the performance of governments and their bureaucrats.
These submissions restate the basic starting points underlying the GIPA Act in favour of open government.
The applicant also argued that having more facts could contribute to the correction of flawed perceptions in the minds of members of the public. This point was made in particular in relation to teenagers (school students) having underlying or unrelated issues which contribute to their ASEB. It seems that there may be some positive effects, but the total elimination of flawed perceptions seems to me to be an impossible task.
The applicant further queried the basis for claims that disclosure could lead to the risk of harm or serious harassment or intimidation. The point was made that perhaps such fears were irrational.
The respondent was able to reply to these points by pointing out the rationale for its approach and where the evidence supported its position. The applicant also filed "final submissions" in which he reiterated the benefits of open government for an informed society.

[18]

Consideration

Bearing in mind the principles discussed above concerning each of the items relied on by the respondent, the Tribunal must turn its mind to the question of whether, objectively, it considers the enumerated prejudicial effects could reasonably be expected.
In performing this task the Tribunal considers whether disclosure could be reasonably expected to have the effect in a broad, general sense and then whether it could be reasonably expected in this particular case.
If such a reasonable expectation emerges, the Tribunal then considers what weight should be given to the considerations against disclosure.
The Tribunal then weighs the public interest considerations in favour of disclosure against the public interest considerations against. It then must determine whether the negative factors outweigh the factors in favour.
So applying this process to the document here in question (document 1, pages 1-4) - an incident report: Item Discussion Weight 1(d) This ground made out - evidence and experience is that most suppliers of confidential information want the information and their identity to remain confidential. In this situation this is a matter of high importance. Confidential information is provided by fellow students who will be reluctant to come forward if confidentiality is not assured. The possibility of reprisals is obvious if a person is able to be identified as the source of confidential information. Staff can be in a similar position, though they carry an extra burden of professional responsibility. (Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function) The applicant appears to appreciate the sensitivity of incident reports as its access application was subject to some limitations as far as these were concerned. Very Strong Accordingly I would give very strong weight to this factor. 1(e) This ground is made out in relation to this document. But it is difficult to see how the document (an incident report) reveals much about the thinking process of government. Accordingly I treat it as having low weight in relation to this document. Low (Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.) This ground is established. The agency's functions include providing a safe learning environment in NSW schools. 1(f) If confidential details of incident reports are disclosed they can be reasonably expected to chill the willingness of informants to report ASEB matters. This could prejudice the effective exercise of the functions of the agency. Strong (Prejudice the effective exercise by an agency of the agency's function) For reasons discussed in relation to item 1(d) there are additional considerations militating against disclosure concerning risks of retaliation against informants which could be expected to discouraged informants. I would treat this as a strong factor against disclosure. 1(h) This ground is made out. It seems clear that disclosure of confidential details of incident reports could reasonably be expected to prejudice the conduct, effectiveness (and perhaps the integrity) of an investigation of an incident or potential ASEB situation at NSW schools. Modest (Prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced or whether or not completed).) Whether in this case it could be reasonably expected to do so is open to some doubt. It is not clear whether any investigation is ongoing in relation to the incident. I would accord only modest weight to this factor in this particular case. 2(a) This ground is made out. Incident reports would ordinarily be expected to reveal (or provide a strong signpost to) the identity of an informant, as the source of confidential information would normally need some identification. (Reveal or tend to reveal the identity of an informant will prejudice the future supply of information from an informant.) If informants were not confident that their identities would be protected it could reasonably be expected that they would be reluctant in future to supply confidential information. In the present case the identity of the informant in the incident report can fairly readily be deduced from the context. Others would be likely to be deterred from reporting if identity details were disclosed. Significant I would accord significant weigh to this consideration against disclosure. 2(b) This ground is made out. Disclosure of the identity of a provider of confidential information and/or the information provided could be reasonably be expected to have the prejudicial effects set out in the clause. In the present case although the incident occurred in mid-2017 disclosure could be reasonably expected to prejudice the prevention or detection of a future contravention or possible contravention of the law because of the chilling effect that disclosure could have on the willingness of confidential informants coming forward in future. I would accord this element medium weight in the circumstances. Medium (Prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law) This ground is made out. For reasons discussed under item 2(a) above an incident report could reasonably be expected to reveal an individual's personal information such as their identity, suburb, location in relation to the incident, position or status, relationship with others and so on. This is a matter of a special concern in relation to school students who are mostly minors. 3(a) I was referred to a Special Report of the privacy commissioner concerning a complaint by a student and his father against certain parliamentarians and an advisor in relation to public comment about an incident at a school last decade. (Reveal an individual's personal information) The privacy commissioner concluded that comments constructively identified the student, the school and the local community and thereby violated his privacy. Very Strong Revelation of the redacted details in this document would enable a person so minded to identify personal information concerning numerous parties involved in the incident and its aftermath. In this case I accord the issue very strong weight. 3(b) This ground is made out. The information protection principle of present relevance is s18 PIPP Act. (Contravene an information protection principle under the Privacy And Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002). For reasons set out in discussion of item 3(a) it seems to be reasonable to expect that there could be a breach of these information privacy principles by the disclosure of the redacted information. Very strong Although this item wears a more abstract garb the practical result of disclosure seems to carry very similar public interest considerations against disclosure. I therefore accord it the same weight as item 3(a). 3(f) This ground is established. The Tribunal must consider the interest of all persons concerned, whether they are "in the wrong" or "in the right". Disclosure of incident reports, for the reasons discussed in relation to item 3(a) above can facilitate the identification of persons concerned in the incident. Those persons, whether "perpetrators", confidential informants, staff, investigators and their respective families could be reasonably expected to be at risk of serious harassment or serious intimidation if details become known. The Tribunal can take "judicial notice" of school yard, local area and social media bullying as examples of harassment and intimidation. One also could reasonably anticipate a risk of physical harm to those persons by way of reprisal, or from a misguided sense of justice. (Expose a person to risk of harm or of serious harassment or serious intimidation.) For reasons mentioned in relation to item 3(a) these effects could be reasonably expected to occur if the incident report were to be disclosed. Strong Given the age of the incident here the risks appear to be at a lower level but still relevant. I would give the weight of this consideration strong weight. This ground is made out. The considerations are quite similar to those which apply to item 3(a), with the additional consideration that there are very likely to be children involved in a school incident. It is difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA Act application, and I consider it impossible to conceive of such circumstances in relation to an ASEB incident. The risk of harm to the interests of a child are obvious. 3(g) Although there is no evidence that all the persons involved in the incident the subject of this report are children today it would be reasonable to infer that some of them are. Very strong (In the case of the disclosure of the personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.) It seems to impose an excessive onus on the agency to establish that none of the persons involved in a school incident (whether or perpetrator/s, victims, witnesses or informants) is a child at the time the Tribunal is called on to decide. If it is reasonable to assume there is at least one child whose interests are affected it will in most circumstances be enough. In this case this consideration has been allocated very strong weight.

[23]

Cross-Sector and Interdepartmental Working Parties

These documents are documents 3, 4, 5, 6, 7, 8, 9, 21, 22, 23, 24 and 25. I deal with them in turn referring to the grounds relied on in each case.
Document 3 (pp10-13) is an email chain concerning policy initiatives involving various agencies. Grounds relied on are 1(d), 1(e), 1(f), 1(h), 3(f) and s 74. Redaction of names on the circulation lists and in the body of emails is justified by item 3(f) and s 74 for reasons already discussed.
One of the other agencies has objected to disclosure of certain material on the ground it would reveal a deliberation or consultation conducted, or an opinion advice or recommendation given so as to prejudice the deliberative process of government or an agency (item 1(e)) (statement of Ms Stathis 17 September 2018 pars 31-32). The objection is maintained. It does appear that there are manifestations of the thinking process of government revealed by the document, though not in any significant detail. I would give this ground only modest weight. There is also a reference to an 'audit' to be conducted.
The relevance and combined weight of factors 1(e) and 1(h) is reasonably clear and would (on balance) justify the agency's decision to withhold. The relevance of 1(d) and 1(f) is not at all obvious. I cannot clearly see how revelation would affect the exercise of the agency's functions. I accord them no real weight.
Document 4 (p 14)( grounds 1(d), 1(f), 3(f) and s74 (relevance)). This is a circulation list with certain names of personnel from other agencies redacted. I am satisfied that to reveal the names would identify the persons, and be likely to provide personal information about them. Such disclosure is reasonably likely to impede the agency's functions, and could prejudice the future supply of information from those and other agencies. I regard these aspects as having strong weight. Ground 3(f) applies to one individual. As I see it there is evidence to suggest the 'redacted' individual could be exposed to risk of harm, or serious harassment or intimidation but see this risk as of moderate weight. It seems to me that grounds 1(d) and 1(f) are considerably stronger in relation to this individual. Taken together I regard the public interest considerations against disclosure as outweighing those in favour. I consider that the agency's decision is correct.
Document 5 (p16) (grounds as for Document 4). This is another circulation list. For reasons given re Document 4 I consider that the agency's decision is correct.
Document 6 (p 18) (grounds 1(f), 3(f) and s 74). Circulation list. For the same reasons as for Document 4 (noting no reliance on 1(d)) I consider the agency's decision to be correct.
Document 7 (pp 20-21) (ground 3(f)). This is another circulation list. The redacted identity is discussed in relation to Document 4. Although reliance is not placed on ground 1(d) or 1(f) I consider them to be available and having strong weight, while ground 3(f) has only moderate weight. In accordance with my reasons regarding Document 4 I consider the agency's decision to be correct.
Document 8 (p 23) (grounds 1(f), 3(f) and s 74). This is a list of participants at a briefing. In accordance with my reasons regarding Document 4 I consider the agency's decision to be correct.
Document 9 (p 25) (grounds 1(d), 1(e), 1(f), 1(h), 3(f) and s 74). This is a list of participants at a briefing. Grounds 1(e) and 1(h) are not made out. In accordance with my reasons regarding Document 4 and 7 I consider the agency's decision to be correct on the other grounds.
Document 21 (pp 95-96) (grounds 1(c),1(d),1(f), 1(g), 3(a) and s 74). This is an email concerning the importance of language on a certain topic. I consider that the redaction of information concerning the identities of certain persons is justified under ground 3(a) or s 74. The public interest against disclosing the other information in the document is, in my view, not outweighed by the public interest in favour. Ground 1(g) is new. It provides: "(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence".
The provision is discussed in more detail below in relation to Document 10. The other information in the document that I refer to does not in any way indicate that it was provided to the agency in confidence. I can see no real basis for claiming grounds 1(c), 1(d),or 1(g) apply. Nor can I see ground 1(f) operating. It is not noted as a ground on the unredacted document, and seems to be a belated claim. Even if these grounds do apply, the weight I would attribute to these factors is low. I would thus regard the agency's decision as being incorrect.
Document 22 (pp97-98) (grounds 1(d), 1(f), 3(a), 3(f) and s 74). The redacted information is names on a circulation list. S 74 applies to a number of names. For reasons mentioned in relation to Documents 4 and 7 I consider that the agency's decision is correct in respect of those persons not excluded by operation of s 74 (relevance).
Document 23 (p 105) (grounds 1(f), 3(a), 3(f) and s74). Also a list of names on a circulation list. Ground 1(d) is not claimed but I consider is applicable. For the same reasons as apply to Document 22 I consider the agency's decision to be correct.
Document 24 (p 109) (ground 1(g)). There is nothing to suggest the redacted information (which appears very bland) was provided in confidence, and even if it was I would afford this factor low weight, so the public interest considerations in favour of disclosure outweigh those against. I consider that the agency's decision is incorrect.
Document 25 (p111) (grounds 3(a), 3(f) and s 74). This is a recipient list on an email and a signature box. Grounds 1(d) and (f) are not claimed but appear to be engaged. For reasons given in relation to Documents 4 and 7 I consider the agency's decision to be correct.

[25]

Clause 1(c) -Prejudice relations with, or the obtaining of confidential information from, another government

The document includes information that agencies of other governments have provided to the respondent in confidence; and assistance to be rendered in future, to facilitate the development of strategies, policies and programs to deal with ASEB in schools. There is also information about the agency's cooperation with other agencies of the state government which engages grounds 1(d) and 1(f).
It is submitted that it is essential that government agencies work collaboratively on sensitive matters such as strategies to counter violent extremism, and that information can be shared between those agencies for that purpose on a confidential basis.
Furthermore, the release of confidential information that has been obtained from other governments, could prejudice the sharing of such information in the future. It is essential to inter-government relationships that developments or new knowledge be obtained from other governments on a cooperative basis, to assist in the preparation of new policies and assessment of the effectiveness of existing policies.
It is submitted that revealing confidential information received from other agencies which is not publicly available, and provided to the Respondent in confidence by an agency which has specifically objected to the information being released as is the case here (statement of Ms Stathis 17 September 2018 pars 39-41), would be likely to significantly prejudice (cause detriment or disadvantage) the respondent's ability to obtain confidential information from other government agencies in the future, and is therefore a significant public interest consideration against disclosure.
I am not convinced that in this case the evidence supports the proposition that there will be reasonably likely to be prejudice to relations with other governments, or an effect on obtaining of confidential information from them. However it seems reasonable to infer this from the context of references to other governments.
What is relevant is whether disclosure would, or could reasonably be expected to cause damage to relations between governments, not whether it was reasonable that disclosure would or could cause damage to such relations: Re Environment Centre NT and Department of the Environment Sport and Territories (1994) 35 ALD 765 at 778.
In Arnold v Queensland (1987) 73 ALR 607 it was said at 616: 'It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to 'relations' between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect 'relations' between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case:

[31]

Clause 2(c)- increase the likelihood of, or prejudice the prevention of, preparedness against, response to, or recovery from, a public emergency (including any natural disaster, major accident, civil disturbance or act of terrorism)

Information included in the draft review report is about the systems that the respondent, law enforcement agencies and other government agencies have in place, are developing or considering, to reduce the risk of public disturbance from a public emergency that arises from an incident of anti-social and extremist behavior.
It is contended that the disclosure of confidential and sensitive information that reveals systems and strategies at this time is reasonably likely to prejudice the prevention of, preparedness against, response to or recovery from, a public emergency including civil disturbance or act of terrorism, particularly if those strategies are released at a time when they are in draft form and include information that has not been validated.
The Information Commissioner submitted that this clause deals with two types of public interest: the prevention of/ or response to public emergencies; and information which would increase the likelihood of a public emergency. In considering whether this clause applies to the refusal to release information, the Tribunal was invited to consider the case of Hutchinson v Roads and Traffic Authority [2006] NSWADT 147 where the ADT found that disclosure of photographs showing close structural detail of parts of the Sydney Harbour Bridge could reasonably be expected to facilitate the commission of a terrorist attack and prejudice counterterrorism measures. The Deputy President found that the fact that other photographs showing the structure of the bridge were available in other places such as a library did not mean that the RTA must release the photographs in its possession.
I propose to examine the redactions in this document item by item. The redaction on page 70 does not on the evidence appear to be justified by the grounds relied on. I regard the agency's decision on this to be incorrect.
Redaction on page 72 is in my view justified on the evidence and public interest considerations against disclosure outweigh those in favour. I regard the agency's decision as correct.
The public interest considerations regarding the redaction on page 75 in my view fall on the side of disclosure, as the weight of the considerations against disclosure are insufficient. I regard the agency's decision on this aspect to be incorrect.
Redaction on page 76 concerns plans developed by the agency and appears to me, on the evidence, and having regard to their relative weight, to be justified on the grounds relied upon. The agency's redaction decision is correct.
The two redactions on page 77 are continuations of the theme on page 76, and are justified for the same reasons. The agency's decision is correct.
Pages 78-80 and part of page 81 are redacted. They deal in some detail with the processes used by the agency in dealing with ASEB incidents, giving some statistics and case examples from which identifying details could be derived. In my view disclosure of this material could, at the least, prejudice the agency's functions and effectiveness, the prevention of and response to a public emergency, and systems for protecting life and property. These factors (combined with considerations concerning disclosure of personal information and the best interests of children, which although not relied upon could be called in aid) in my view outweigh the factors favouring disclosure. I consider the agency's redaction decision here to be correct.
On page 82 there are 4 redacted items. The second of these is justified on the same basis as those on pages 76 and 77. The agency's decision on this item is correct.
However I am unable to see how the public interest against disclosure of the other redacted information on the page can outweigh the considerations in favour. The agency's decision is incorrect on these.
On pages 83 and 84 the redactions relate to material redacted on pages 77 and 78. For the reasons given in upholding the agency's redaction decisions on these pages, I consider that the page 83 and 84 redactions are justified on the same grounds, and on the basis of the weighing process in s 13 GIPA Act.
The redactions on page 86 are in my view incorrect on the same basis as the incorrectly redacted items on page 82.
On page 88 there are two related redactions which contain sensitive data concerning ASEB and its drivers. For the same reasons as I considered the redactions on pages 78-81 to be correct I consider the agency's decision on these items to be right.
On pages 89-91 there are redactions which deal with the incident reporting system and procedures and inter-agency cooperation. For the same reasons as I considered the redactions on pages 78-81 to be correct I consider the agency's decision on these items to be right.
The redacted material on page 92 seems to me to be subject to disclosure as the factors against do not in my view outweigh those in favour. The agency's decision is incorrect.

[39]

Document 32 (pp297-302)

This document is an email covering an attachment provided by an agency of another government which is marked "For Official Use Only". The providing agency has expressed its wish that the material be kept confidential. The body of the email (which refers to and comments on aspects of the attachment), and the attachment have been fully redacted. The email circulation list has been extensively redacted. Grounds relied on are item 1(c), 1(d), 1(f), 1(g), 3(a) and 3(f).
The information at pages 297-302 was provided to the respondent by the NSW Department of Premier and Cabinet, and had been received in confidence from the Commonwealth Attorney-General's Department. These agencies have objected to the disclosure of their information for the reason that it was provided in confidence, and the release of that information would prejudice relations with, or the obtaining of information from, other government agencies (statement of Ms Stathis 17 September 2018 paras 23-29).
The names on the circulation list are in my view justifiably redacted. Grounds 3(a) and 3(f) have strong weight, and although not called in aid it seems to me that those names could be withheld from disclosure under items 2(b), 2(d), and 2(e). The agency's decision is correct.
As for the rest of the material redacted the marking on the attachment indicates it was provided in confidence, and this stance has been maintained when enquiry was made by the respondent. Accordingly grounds 1(c) and 1(g) are made out and have significant weight. So too does 1(d), as the respondent agency needs to be able to continue to receive confidential information of this sort to enable it to exercise its functions effectively. Ground 1(f) has modest weight, but supports 1(d).
Accordingly I consider that the agency's decision on this document was correct.
In view of the sensitivity of the subject matter of the material in the documents before me it appears to me to be appropriate where relevant to set aside the decisions of the agency which I consider incorrect, and remit documents for re consideration by the agency in accordance with the Tribunal's reasons. I prefer this course to setting decisions aside and making substitute decisions without, perhaps, a full appreciation of the nuances of the reasoning behind the claims for non-disclosure.

Miskelly v Secretary, Department of Education

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