MJ v Department of Education and Communities [2014] NSWCATAD 12 | Case summary

NCAT Administrative and Equal Opportunity|2013-08-02

Introduction 1The applicant, MJ, seeks review of a decision of the respondent, the Department of Education and Communities, made under the Government Information (Public Access) Act 2012 (GIPA Act), in regard to her application for access to information. There is no dispute that the Tribunal has jurisdiction to hear and determine this application. 2By consent, I made an order under subs 75(2) of the Administrative Decisions Tribunal Act 1997, prohibiting the publication of the applicant's name.

Background to the applicant's application 3The information for which the applicant had sought access was as follows: 1. All "documentation" re my Protected Disclosure updated 8.1.2012 - 7/12/12. Documentation - emails, faxes, letters, reports, all electronic and paper based files & Cds or DVDs 2. All documentation re my Protected Disclosure to Marnie O'Brien 26/4/2012. 3. All documentation - 2012 to and from Marnie O'Brien - re me or my case. Information is to cover the period from 8.1.2012 to 7.12.2012. 4The respondent determined the applicant's application on 9 January 2013. In that determination the respondent noted that the information relevant to the applicant's application were contained in a number of records from the following areas of the respondent Department: Pages 1 - 294 - from the Employee Performance and Conduct Directorate Pages 295 - 436 - Work Health and Safety Directorate 5The respondent also advised that pages 295 - 345 related to point 2 of the applicant's access request and that pages 346 - 436 related to point 3 of that request. The respondent also noted that there were quite a number of duplicates within the identified number of pages. The respondent also noted that the identified pages included information the applicant has previously been provided under earlier access applications. 6As became evident during the course of dealing with this application, the word 'Pages' was a reference to a particular record or document. In some cases the record/document consisted of one page, but in many others it consisted of two or more pages. Hence each page of such records/documents was given a consecutive page number but the record/document number remained the same. 7With the exception of page 2 of 436, the respondent determined to grant the applicant access to the information sought. In regard to page 2 of 436, the respondent determined to refuse access to the information, in part. The applicant was otherwise granted access to the information in the records identified by the respondent. 8The applicant, being dissatisfied with the determination, made this application for external review to the Administrative Decisions Tribunal. In her application for review, the applicant gave the following explanation as to the grounds of her application: I do not believe all documentation from Marnie O'Brien has been provided. I believe to ensure compliance with the GIPA Act and external review/independent reviewer would be in my best interest. I query the validity of the decision to withhold information based on DEC decision that "the Department would find itself with a very upset individual" if the information was released. 9The matter came before me, at a planning meeting, on 19 March 2013. At this planning meeting the applicant contended that she had not been provided with the relevant documents for which access had been granted. She also pressed her application for access to the deleted information on page 2 of 436 and pressed her concern about were missing documents. By consent, I made orders that the applicant be provided with a copy of the information for which access had been granted, that the respondent provide a summary of searches that had been made for the information for which the applicant sought access and that the applicant identify those documents which she asserts were not identified and provided. 10The matter came before me at two further planning meetings on 11 June and 2 July 2013. These dates were chosen to fit in with the applicant's availability. The applicant has at all times appeared by telephone and expressed ongoing concerns and confusion about the manner in which the respondent had provided her with copies of the information sought. In light of these concerns, I set the application down for hearing on 2 August 2013 and made an order that the respondent make available, at the hearing, the relevant officer of the Employee Performance and Conduct Directorate to explain how the files relevant to the applicant's access request were organised. The applicant consented to the orders made. 11On 2 August, at the commencement of the hearing I called the applicant's telephone number. The applicant did not respond to the call. In light of the applicant's consent to the hearing (even in her absence) and the respondent having complied with the orders made, I proceeded with the hearing. At the conclusion of the hearing I made a number of orders including, a copy of the recording of the hearing be provided to each party and that the applicant file and serve, within 21 days, any further submissions in regard to the issue of adequacy of search by the respondent for the information she asserts falls within her access request and not provided to her. I also confirmed the order made at the previous planning meeting that the matter be determined on the papers. 12The applicant filed and served further written submissions on 1 October 2013. 13I have now considered all the material before the Tribunal and for the reasons set out below, I have determined that the decision of the respondent, the subject of review, is the correct and preferable decision and should be affirmed. 14My reasons for decision, are published as reasons for decision of the New South Wales Civil and Administrative Tribunal (NCAT) as the Administrative Decisions Tribunal was abolished, on 1January 2014, with the establishment of NCAT: see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before NCAT, with the provisions of the Act and the Administrative Decisions Tribunal Act 1997 continuing to apply.

Issue 15The only matters in issue, in this review application, falling within the Tribunal's jurisdiction under s 100 of the GIPA Act, are as follows: (a)whether the respondent has complied with its obligations under subs 53(2) and (3) of the GIPA Act to undertake reasonable searches to find the information, as held by it and sought by the applicant in her access request, and (b)whether the decision of the respondent in regard to the deleted information on page 2 of 436 is the correct and preferable decision. In this regard, the respondent found that the public interest consideration against disclosure of this information, on balance, outweighed the public interest consideration in favour of disclosure.

16I recently dealt with similar issues in regard to an earlier access application by the applicant for information relating to the same subject matter: see MJ v Department of Education and Commerce [2013] NSWADT 213 (MJ 2013 decision). In that decision, the relevant legislative provisions and legal principles are set out in full and equally apply to this application. Accordingly, I have only repeated those that are directly relevant to the abovementioned issues.

Has the respondent undertaken reasonable searches for the information sought? 17S 53 of the GIPA Act deals with the obligations of a government agency in regard to searching for the information sought by an access applicant. That section relevantly provides: 53 Searches for information held by agency (1) ... (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) ... (5) ... 18As I noted, at [43], in the MJ 2013 decision, it is accepted that there are two questioned to be asked in determining whether an agency has undertaken reasonable searches for the information sought by the access applicant. These are: (a) whether there are reasonable grounds to believe that the requested information exists and is information held by the agency: and if so, (b) whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case. 19On 28 March 2013, in response to orders made, the respondent filed and served a statement setting out, in summary form, the searches that were made for the information sought by the applicant. In that statement, Ms Stathis, the respondent's Manager Information Access, explained that the Employee Performance and Conduct Directorate (EPAC) and the Work Health and Safety Directorate (WH&S) of the respondent were requested to conduct searches for the information sought by the applicant. Ms Stathis explained that EPAC deals with protected disclosures and Ms O'Brien is the Director of the WH&S. Ms Stathis also stated that searches included searches of the relevant electronic files, paper files, archived files, TRIM and emails of staff. 20On 7 June 2013, in accordance with orders made, the applicant filed and served a document that listed those documents she asserted to fell within her access request, were held by the respondent and not provided to her. That list was prepared from the information contained within the documents that the applicant had been granted access to and subsequently provided, in electronic form (i.e. on a CD). 21On 24 June 2013, the respondent provided a detailed written response to each of the matters listed by the applicant. In some respects the response went well beyond that required by the respondent, under the GIPA Act, in response to the applicant's access request. I understand it did so, to assist the applicant. 22In its response the respondent explained that in some instances no documents were in fact created. Some of the documents identified by the applicant (in particular the documents at the tabs referred to in the chronology of Grant Marley dated 12 May 2012) were said to be documents previously given to her under an earlier access request - these being documents not falling within the time frame of the applicant's access application the subject of this application. 23There were however, eight further documents provided to the applicant, together with an explanation as to whether they did or did not fall within her access request. Of these, three fell within the applicant's access request and were not located in the EPAC or WH & S files. The respondent also provided the applicant with five additional documents from its TRIM system that related to the applicant but were recorded under a miss-spelling of her name. These documents did not fall within the applicant's access request the subject of this application. 24On 1 July 2013, the applicant filed and served a written reply to the respondent's response. The applicant took issue with a number of the matters raised by the respondent. However, to the extent relevant to this application, the applicant remained concerned about the respondent having adequately searched for the information the subject of her access request. In particular, the applicant sought access to the tabulated documents as referred to in the chronology of Mr Marley. It was on that basis that I set the matter down for hearing and made the orders in regard to a person from the EPAC Directorate to be made available. 25In accordance with my orders, the respondent made Mr Jason Kennedy Davidson available to give evidence. I found Mr Davidson's evidence and explanations of the information on the EPAC files concerning the applicant to be of considerable assistance. He explained that there were two files held within the EPAC Directorate in relation to the applicant. The original file contains all the information relating to the protected disclosure that was made by the applicant in 2011. A subsequent file was opened in mid 2012, which contains all the information concerning the applicant's complaints about reprisal for having made a protected disclosure. Mr Davidson said that he had gone through both files to ensure that every document relevant to the applicant's access application had been complied with. The files, from my cursory observations were well ordered and the documents seemed to be in chronological order. 26In regard to the tabs referred to by Mr Harley in his chronology, Mr Davidson explained that the chronology was on the top of the second file. He said it had been prepared for the purpose of responding to a complaint the applicant had made about actions taken in regard to her protected disclosures. The chronology made reference to a number of documents in the EPAC files and Mr Harley identified these with a consecutive tab number from A to FF. Mr Harley also stuck a small tab, with the relevant number on each of the documents referred to. These tabs, Mr Davidson explained do not photocopy when the document to which they are is attached is photocopied. 27On the basis of the explanations provided by the respondent in its response of 24 June 2013 and the evidence of Mr Davidson, I am satisfied that the respondent has complied with its obligations under s 53 of the GIPA Act in so far as searching for information, it holds, that falls within the applicant's access request the subject of this application. 28I am also satisfied that the respondent has at all times met its obligations in this regard so far as it relates to this access application of the respondent. The fact that three extra documents were located subsequently does not mean that reasonable searches were not made initially. As explained by the respondent, these were only located following identification by the applicant of their existence. Furthermore, they were located in a place other than on the applicant's file, which was where all other documents containing relevant information was found.

The deletion on page 2 of document no 436 29Page 2 of document no 436 appears to be the first page of a memorandum, or minute about a request, of the applicant, for access to information concerning a number of misconduct complaints/protected disclosures she had made against a number of employees of the respondent. The deletion is a small sentence in the second paragraph under the heading 'Background'. The applicant has otherwise been provided with full access to the information on this page and the other pages of document no 436. 30The respondent has provided the Tribunal with a copy of the deleted information, in confidence, pursuant to s 107(3) of the GIPA Act. 31As I have explained previously, subs 9(1) of the GIPA Act gives every person who makes an access request for government information a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is 'an overriding public interest against disclosure of the information.' 32The test to be applied in determining whether there is an 'overriding public interest against disclosure' is set out in s 13. That test is in the following terms: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 33Subs 12(1) provides that there is a general public interest in favour of disclosure of government information. Subs 12(2) provides that public interest considerations in favour of disclosure are not limited. However, the public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act. Subs 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. This provision does not apply to this application. Subs 14(2) sets out the only other public interest considerations against disclosure. 34In this regard, the respondent contends that a disclosure of the deleted information on page 2 falls within the following clauses in subs 14(2) of the GIPA Act: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) ..., (b) ..., (c) ..., (d) ..., (e) ..., (f) prejudice the effective exercise by an agency of the agency's functions, (g) ... 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 ... 35The application of the public interest considerations against disclosure generally and those prescribed in cl 3(a) and (b) of the table to subs 14(2) of the GIPA Act were dealt with by me, at [54] to [57] and [66], in the MJ 2013 decision. 36I am satisfied, from the content of the deleted information, that it is personal information about a person, other than the applicant, and that a disclosure of the information could reasonably be expected to reveal that information. I am also satisfied that a disclosure of that information could reasonably be expected to contravene the disclosure information protection principle, in s 18 of the Privacy and Personal Information Protection Act 1998, in regard to that person's personal information. 37Having regard to the nature of the information, I am also satisfied that a disclosure of the information could reasonably be expected to prejudice the effective exercise by the respondent of its function to deal with allegations of misconduct/protected disclosure. 38In my view, the public interest considerations in favour of disclosure of the information is that disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate. 39The question is, where does the balance lie between these competing public interests. 40In my view, considerable weight should be given to the public interest considerations against disclosure, as the information is personal information about a person other than the applicant. While there is no evidence that the person was consulted, pursuant to s 54 of the GIPA Act, in my view the nature of the information is sufficient to indicate that the person would not consent to its disclosure. 41On the other hand, in my view, the public interest consideration in favour of disclosure is not strong as a disclosure of the information would have limited impact in promoting open discussion of public affairs, enhancing Government accountability or contributing to positive and informed debate. 42Accordingly, I find that on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the deleted information.

Conclusions and orders 43For the reasons set out above, I have found that the respondent undertook all reasonable searches for the information the subject of the applicant's access request, the terms of which are set out in paragraph 3 above. 44On the basis of my finding that there is an overriding public interest against disclosure of the deleted information on page 2 of 436, I find that the decision of the respondent to refuse the applicant access to this information is the correct and preferred decision and should be affirmed. 45In her further submission, filed and served on 1 October 2013, the applicant sought orders that the respondent release to her three emails sent on 2 and 3 December 2008 and a further email sent on 3 December 2012. The emails sent in December 2008 clearly fall outside the terms of the applicant's access request and in any event, I understand the applicant has already been provided with a copy of each of these emails, or it is she who provided a copy to the respondent. Hence I have not dealt with them any further. 46On the basis of my findings the appropriate order is to affirm the decision of the respondent. 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: 14 February 2014

MJ v Department of Education and Communities

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Judgment (7 paragraphs)

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