Shaw v Secretary, Department of Education - [2021] NSWCATAD 224 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

Shaw v Secretary, Department of Education

[2021] NSWCATAD 224

NCAT Administrative and Equal Opportunity|2021-03-01

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Court

NCAT Administrative and Equal Opportunity

Decision date

2021-03-01

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

J Pendergast (Respondent) File Number(s): 2020/00320298 Publication restriction: Pursuant to s 64(1)(a) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the publication and disclosure of the names of the Applicant's children and the school they attend is prohibited.

[2]

Background

On 3 September 2020 Rebecca Shaw (the Applicant) and her husband made three applications for access to information pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act) to the Secretary, Department of Education (the Respondent). These were titled GIPA 20-481, GIPA 20-482 and GIPA 20-484 by the Respondent.
GIPA 20-481 sought the following: All information, including Department policies, procedures and guidelines, as a well as emails and meeting notes from the school and Lismore office, regarding: - The specialist support services (including psychology, speech therapy and occupational therapy) provided by the Department which are available to students with a disability in a public primary school, and how they access these services - The way the Department manages specialised support services (including psychology, speech therapy and occupational therapy) from an external provider for students with a disability in a public primary school, delivered on and off school grounds - The way the Department manages access to other support services offered by the Department (including the school councillor, LaST and Learning and Well-Being Officers) - The way the Department manages access to a specialised support services, when the Department is unable to provide this service - How to record the attendance of students with a disability who accesses Specialist Support Services from an external provider, when the school is unable to provide this service - The decision by [the] Public School to change the way attendance is recorded for [child], [child] and [child], which now marks the children as absent when they attend a specialist support service - How attendance for [child], [child] and [child] at [the] School was, and is now, calculated and reported

[4]

GIPA 20-482

On 6 November 2020 the Respondent issued a Notice of Deemed Refusal in relation to GIPA 20-482 as a result of the respondent being "unable to make a decision for this application by the due date of 30 October 2020". On 16 November 2020 the Respondent issued a Notice of Late Decision, deciding to release in part the information requested pursuant to s 58(1)(a), that pursuant to s 58(1)(b) some of the information was not held by the Respondent, refusing access to some information pursuant to s 58 (1)(d) and not disclosing some information pursuant to Schedule 1 and s 126(1)(e) of the GIPA Act.
The information released to the Applicant under GIPA 20-482 on 16 November 2020 consisted of 127 pages, including redactions. A schedule of information not released was provided with the decision. The schedule identified those parts of the records released which had been redacted, and the basis for those redactions.
The Notice of Late Decision provided the following bases for withholding access to the redacted information: 1. Overriding public interest against disclosure pursuant to s 126(1)(e) of the GIPA Act; 2. Records contain personal information. Public interest considerations in favour of the disclosure of this information are the general public interest (s12(1) of the GIPA Act) and that it may help the Applicant understand "the reasons why you were requested to adhere to a communications protocol". Public interest considerations against disclosure included items 3(a) and 3(b) of the Table to s 14 of the GIPA Act; 3. Although no consultation was conducted pursuant to s54 of the GIPA Act, the decision maker believed it was "reasonably likely they would have concerns about the disclosure of the information", taking into account the Information Commissioner's Guideline 4; 4. Records including emails between school staff, executives and other people concerning the management of school issues and complaints contained information which could reasonably be expected to prejudice the functions of the Department. Public interest considerations in favour of disclosure of this information are the general public interest (s12(1) of the GIPA Act) and that it may help the Applicant understand "processes regarding communication protocols and the reasons why those are implemented". Public interest considerations against disclosure included item 1(f) of the Table to s 14 of the GIPA Act. In applying the public interest test, the Respondent stated that maintaining confidentiality of the complaints process is necessary to enable the department to manage complaints effectively; 5. Pages containing confidential information prepared by departmental officers with the dominant purpose being for use in current or anticipated legal proceedings, so that the conclusive presumption for client legal privilege pursuant to cl 5(1) of Schedule 1 to the GIPA Act applied; 6. Information which was not relevant or outside the scope of the Applicant's request pursuant to s74 of the GIPA Act
Some time on or prior to 27 January 2021, the Respondent released or varied the basis upon which certain information had been withheld as a result of the Notice of Late Decision: 20. Personal information on page 31 has been released. 21. Legally privileged information on page 37 has been varied from a whole page redaction to a box redaction. 22. Pages identified on the NCAT comparison schedule of records at pages 17, 71 and 73 previously identified as privileged under Schedule 1, s 126(1)(e) have been released at pages 17 and 73. A determination was made that they are not captured under section 126(1)(e). A copy of the NCAT Comparison Schedule of records is attached at TAB 4. 23. Information that was not within the scope of the application at page 71 has been released. 24. Information previously identified at pages 71 and 79 as not relevant has been released to the applicant. Although the information is not directly relevant to the application we have decided under section 76 of the GIPA Act to release this information. 25. Pages 116 and 125 of the disputed material were varied to include schedule 1 clause 5, as this was determined as legal advice. 26. Boxes on page 71 were varied as it was decided that it was not a conclusive presumption against disclosure, However, there is an overriding public interest against disclosure under items 1(d) and 1(f). The confidential information could reasonably be expected to prejudice the effective exercise of the agency.
The details of these releases and variations were included in the Respondent's submissions dated 27 January 2021, and a comparison table was provided to the Tribunal identifying the original bases upon which information had been withheld, and the updated releases or variations to reasons for withholding information.

[6]

Legal Principles

The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 100(1) of the GIPA Act gives a person who is aggrieved by a "reviewable decision" of an agency the right to seek administrative review of that decision by the Tribunal. The term "reviewable decision" is defined in s 80 of the GIPA Act.
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).
The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(1): In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
"Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision.

[7]

Decision that information not held

Section 53(2) of the GIPA Act provides: "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."
The Appeal Panel held in Klaric v Commissioner of Police [2020] NSWCATAP 153 (Klaric) at [33]: "The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. The Tribunal noted that, in reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches…It also recognised that the agency has a burden to justify its decision that it does not hold information, and that this issue is different from whether its search for information was sufficient".
While the reasonableness of searches is not, in and of itself, reviewable, it is a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41], the Appeal Panel clarified the finding in Klaric: "whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an 'information is not held' decision is the 'correct and preferable decision'".
In Wojciechowska, the Appeal Panel also departed from the previous test as to whether reasonable searches had been undertaken. An access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. The Appeal Panel then summarised the task for the Tribunal in reviewing a decision that information is not held by an agency at [44]: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s. 53(1)-(5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s. 63(3) of the Administrative Decisions Review Act.
In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel at [28] observed that, in establishing whether adequate searches had been made, evidence must be shown as to the nature of searches undertaken, the means of the searching used and whether systems of electronic retrieval have been used.
In determining the reasonableness of searches, relevant considerations were identified in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at [30] (cited with approval in Amos v Central Coast Council [2019] NSWCATAD 226 at [14]): "…the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant."
That there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15].

[9]

Public Interest Considerations

The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act mean that the balance is always weighted in favour of disclosure. In addition to the general public interest, the following examples are identified: Note : The following are examples of public interest considerations in favour of disclosure of information-- (a) 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 on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act provides - 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.
Section 14 of the GIPA Act deals with public interest considerations against disclosure. In these proceedings the Respondent is relying on a conclusive presumption (s 14(1)) that there is an overriding public interest against disclosure in relation to certain information withheld, specifically that some information is subject to legal professional privilege (Clause 5 of Schedule 1 to the GIPA Act) and that section 29 of the Children and Young Persons (Care and Protection) Act 1998 (the CYPCP Act) applies to some information (Clause 10 of Schedule 1 to the GIPA Act). If the Tribunal finds that the information withheld pursuant to the conclusive presumption in s14(1) of the GIPA Act is, in fact, information of the nature described in Schedule 1 to the GIPA Act, then information will remain withheld.
The Respondent also relies on the public interest considerations against disclosure described in the Table to Section 14(2) of the GIPA Act in relation to some information it has withheld. That information is subject to the balancing exercise required by section 13 of the GIPA Act, with reference to the principles expressed at section 15 of the GIPA Act. Relevantly, the Respondent relies on the following public interest considerations against disclosure: 1. (1)(d) - Prejudice supply of confidential information that facilitates effective exercise of the agency's functions; 2. (1)(f) - disclosure of information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 3. (3)(a) - reveal the personal information of other individuals; and 4. (3)(b) - contravene Information Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (PPIP Act) and/or a Health Privacy Principle 11 under the Health Records and Information Privacy Act 2002 (HRIP Act)
The evidence of the Respondent must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)". In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
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 paragraph [60].
Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities: Barrett, at [42].
The approach to determining the balance referred to in s 13 was summarised in Williams v Department of Industry and Investment [2012] NSWADT 192 at [20] to [22], following Flack and Hurst v Wagga Wagga City Council [2011] NSWADT 307 as requiring decision-makers to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

[12]

GIPA 20-481

The Respondent's decisions in relation to GIPA 20-481 included the Notice of Decision dated 29 October 2020, Supplementary Notice of Decision dated 17 December 2021 and Notice of Decision dated 17 March 2021. The Tribunal considers that the Notice of Decision dated 29 October 2020 is the reviewable decision before this Tribunal, with the decisions of 17 December 2020 and 17 March 2021 supplementing the reviewable decisions in accordance with orders made by the Tribunal in case management. This is supported by the Applicant's failure to make any submissions in relation to the decisions of 17 December 2020 and 17 March 2021.
The Reviewable Decision made 29 October 2020 included the release of some information, a determination by the respondent that information was not held by it, and that some information captured by its searches was out of scope.
The Respondent's decision that there was no further information held by it in answer to access application GIPA 20-481 is reviewable pursuant to s 58(1)(b) of the GIPA Act. As discussed above at [29] to [35], the Tribunal's approach should be to firstly "identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s. 53(1)-(5)": Wojciechowska at [44].
The Respondent explained at hearing on 1 March 2021 that it was unsure whether it held any remaining information which had not been provided to the Applicant in response to GIPA 20-481 because the long term absence of a particular staff member impacted its ability to search for the records further. Its subsequent Notice of Decision dated 17 March 2021 stated that further searches had been conducted and no additional information was held. The Applicant did not make any submissions in relation to that statement or provide any evidence in response (despite the Tribunal's orders of 1 March 2021 reproduced at 7 above).
In the circumstances I accept on the balance of probabilities that the Respondent has conducted reasonable searches and that further information in answer to access application GIPA 20-481 is not held by it.
The decision to redact certain parts of the documents released because those parts contain information which is out of scope pursuant to s74 of the GIPA Act is not a reviewable decision.

[13]

GIPA 20-482

The respondent provided statements by Katharine Ovendon dated 27 January 2021 and Peter Campbell dated 22 January 2021 in support of its decision to refuse access to information located in response to access application GIPA 20-482. Neither were required by the Applicant for cross-examination.
Ms Ovenden is the Director of Feedback and Complaints for the Respondent and her statement addressed the Respondent's complaints management process and [the] Public School's communication protocol. Ms Ovenden stated that the Applicant and her husband had made 42 complaints to the Respondent between 15 June 2018 and 25 January 2021, and had additionally raised numerous issues and concerns directly with [the] Public School regarding their children's education at [the] Public School. At times, the Applicant and her husband were contacting the respondent and the school multiple times per day or per week. Ms Ovenden stated that their contact with the school was "unreasonable in that their communication is considered to be inappropriate and time-wasting". Ms Ovenden stated that: "The number of contacts and the way in which issues have been raised have had a significant impact on the welfare and wellbeing of staff at [the] Public School. Staff reported feeling distressed and unable to cope with the volume and nature of Dr and Mrs Shaw's contacts. Staff reported that the time taken to manage the volume of contacts and the number of issues that were raised unreasonably took time away from other tasks and the support of students in their learning".
As a result, a communication protocol was introduced to manage the contact between the Applicant and her husband, the school, and the Respondent. This communication protocol was: "…made in consideration of a range of factors, including the volume and nature of contacts received, the way in which Mrs Shaw communicated with the school, and the negative impact of this communication on staff at the school".
The Respondent's Legal Services division coordinated the process for developing and implementing the communication protocol specifically relating to the Applicant and her husband. This process included consultation with relevant subject matter experts, including Ms Ovenden.
Ms Ovenden stated that release of the emails relating to the development and introduction of the communication protocol is likely to: "…significantly damage their relationship with the school and the department. And may have a negative impact on school staff. Specifically, it may limit staff members' willingness to consult subject-matter experts in very complex matters in the future, and may expose them to further complaints and harm from Dr and Mrs Shaw".
Mr Campbell is a Director Educational Leadership, Lennox Coast Network for the Respondent and he provides line management support to school principals in leading and managing their schools. His statement addressed the practical and real impact dealing with the Applicant's complaints was having on the school staff and his staff at the Goonellabah Office for the Lennox Coast network.
Mr Campbell stated that the initial complaint received form the Applicant on 4 May 2018 was in relation to the learning support at [the] Public School for one of the Applicant's children. Since that initial complaint and since the Applicant's other children were enrolled at [the] Public School, over 40 additional complaints had been received from the Applicant and her husband, 10 GIPA requests, and there have been over 780 emails between him, the Goonellabah Office staff, and the Applicant and her husband in relation to those complaints and access applications.
Mr Campbell stated that: "I have genuine concerns for the wellbeing of the principal and staff at [the] Public School and the impact these matters have on their capacity to support the other 84 students and families in the school. These complaints affected the school and particularly the Principal in a number of ways. From the initial complaint it was evident the persistent nature of Mr and Mrs Shaw's enquiries regarding the quality of the educational provision for their children at [the] Public School was impacting significantly on the wellbeing of the Principal, in particular, staff at the school and daily school operations. Initially two staff members (including the principal) were the subject of relentless phone and in person enquiries, explicit support requests and a constant flow of emails. This level of contact impacted on a third staff member at the end of 2019 prior to the commencement of a third child into Kindergarten in 2020. My meetings with staff regarding the continued level of contact with Mr and Mrs Shaw showed staff were anxious about engaging face to face with either parent. They were concerned that the time involved in attempting to meet the requests of Mr and Mrs Shaw was taking away from meeting the educational and wellbeing needs of other students in each of the three classes."
Mr Campbell's statement annexed an email he had received from the school Parent and Citizen Association President regarding the negative impact the Applicant's communications were having on the school principal, teachers, staff, and other students. Mr Campbell also annexed an email from the school principal regarding the constant communications from the Applicant, addressing the overwhelming work load and impact on her own well-being and the necessity of employing a staff person "just to manage these issues".
Mr Campbell stated that providing the correspondence about the management of the communication protocol "would be destructive and only serve to further impact staff morale negatively", that "Communications were implied that they would be confidential" and failure to maintain the confidentiality would "jeopardise relationships with staff at the school, in the department's Offices and also relationships with Mr and Mrs Shaw".
The Applicant submitted that the information sought was required because the school's application of the Disability in Educations Standards was the subject of an application before the Australian Human Rights Commission for investigation, and that the Disability Royal Commission had requested the release of the documentation. The Applicant submitted that only 7 pages remained in dispute from the withheld documents, being those with redactions made relying on clauses 1(f) and 1(d) of the table to Section 14 of the GIPA Act. She identified specifically pages 41, 71, 110, 111, 116, 125 and 126 as being the relevant pages for the Tribunal's consideration, noting that page 57 was in evidence and no longer disputed. She did not press for release of the redactions relating to personal information withheld pursuant to clauses 3(a) or 3(b) of the table to Section 14.

[14]

Documents subject to LPP

The Applicant identified that pages 35, 36, 37, 48, 55, 56, 59, 60, 61, 62, 65, 66, 67, 68, 75, 76, 77, 79, 83, 84, 85, 86, 87 - 106, 109, 110, 112 - 125, 127 were subject to claims for legal professional privilege and accepted that there was an overriding presumption against disclosure for information which was legally professionally privileged, but wanted the Tribunal to review the material and confirm that the claim for privilege was appropriately made.
In relation to the information withheld on the basis that it was subject to legal professional privilege, the Respondent submitted that it was plain from the face of those documents that they comprised requests for, or the provision of, legal advice, and that the officers named in those communications were employed in the respondent's Legal Services Directorate. The respondent relied on a letter dated 17 August 2017 from the Department's Secretary, Mark Scott AO, to demonstrate that the Legal Services Directorate possessed the necessary independence for its communications to be properly classified as subject to legal professional privilege. The respondent expressed that it had decided not to waive privilege in relation to any of the information withheld subject to Clause 5 of Schedule 1 of the GIPA Act.
On my review of the confidential records filed by the Respondent in relation to GIPA 20-482, I agree that the redactions to information made by the Respondent in reliance of Clause 5 to Schedule 1 of the GIPA Act at pages 35, 36, 37, 48, 55, 56, 59, 60, 61, 62, 65, 66, 67, 68, 75, 76, 77, 79, 83, 84, 85, 86, 87 - 106, 109, 110, 112 - 125, and 127 contain information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege). Accordingly the information is properly withheld pursuant to Clause 5 of Schedule 1 to the GIPA Act as there is a conclusive presumption that there is an overriding public interest against its disclosure.

[15]

Public interest considerations against disclosure

The Respondent made global submissions about the application of clause 1(d) and 1(f) of the table to s 14 to the redacted information. In relation to the application of clause 1(d), the Respondent submitted that disclosure of the disputed material would prejudice the future supply of information by employees when investigating and managing complaints, and would thus undermine the department's ability to undertake these processes. It submitted that if this information is released it would have a detrimental effect on frank discussion and the way in which executive staff are able to manage sensitive matters in relation to managing parent complaints.
In relation to the application of clause 1(f), the Respondent submitted that the circumstance in which the communications were made would permit the inference to be drawn that the communications were confidential. It submitted that: …due to the sheer number of complaints made to the school by the applicant, it is clear that resources to educate other students at the school have been diverted to manage these complaints. This has impeded the day to day functioning of the school and its main aim, which is educating students.
The respondent submitted that the disclosure of the relevant redacted information could reasonably be expected to have a detrimental impact on interpersonal relationships of parents and staff. This would result in reducing the capacity of the Respondent's executive to effectively manage the day-to-day functions of the school, and would also compromise the capacity of the Respondent to exercise its responsibilities with respect to the health and wellbeing of staff.
In addition to the prejudicial impact on the respondent's management of complaints, the Respondent submitted that the disclosure of the redacted information could reasonably be expected to inhibit frank and honest communication between staff when dealing with complaints. The Respondent emphasized that significant harm could arise from not being able to manage complaints effectively, both to resources and parent-staff relations, because the nature of information supplied by staff in a complaints process would generally be sensitive in nature and likely to touch on interpersonal relationships within a school community. In this case, in particular, the evidence of Mr Campbell demonstrated that release of the information could reasonably be expected to negatively impact on parent-staff relations at the school and further inhibit the functions of the school when dealing with complaints, by rendering the process ineffective and diverting resources from teaching. Connected with these considerations was the Respondent's responsibilities of managing the health and wellbeing of its staff, with evidence of the negative impact the complaints process was having on staff being addressed in Mr Campbell's statement.
The Tribunal has previously recognised that maintaining the confidentiality of information supplied in the course of an investigation into a complaint serves to encourage participation and cooperation in the process, even where such participation could, theoretically, be compelled: see, for example, Independent Pricing and Regulatory Tribunal v Services Sydney Pty Limited [2008] NSWADTAP 79; Alexander v University of Sydney [2008] NSWADT 214; Mclnnes v NSW Department of Education and Communities [2013] NSWADT 219, AMH v Western New South Wales Local Health District [2013] NSWADT 282, Jenkmson v Department of Education and Communities [2013] NSWADT 280.
The test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in the future, but whether the agency will be able to obtain such information in the future (Selbv v Commissioner of Police (NSW) [2013] NSWADT 61 at [55], Camilleri v Commissioner of Police (NSW) [20131 NSWADT 80 at [38]).
The respondent submitted that clause 1(f) was "designed to pick up those situations where disclosure of information which was not provided in confidence might still prejudice the effective exercise of the agency's functions". This was illustrated by the Tribunal's decision in Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 where although the Tribunal was not satisfied that recorded communications between the Service's employees were confidential for the purposes of clause 1(d) of the Table to s 14 of the GIPA Act, it accepted that clause 1(f) applied, as disclosure of the communications in the form sought by the applicant could reasonably be expected to prejudice the exercise of the Service's functions.
The respondent submitted that the Tribunal's decisions in Luxford v NSW Department of Education and Communities [2016] NSWADT 118 and Jenkinson v Department of Education and Communities [2013] NSWADT 280 were applicable to the issues in these proceedings. In Luxford, the disputed information related to the investigation of a complaint of bullying and harassment. The respondent identified that the health and wellbeing of staff and the capacity of the respondent to exercise its responsibilities with respect to the day to day functioning of the school were relevant considerations. The Tribunal accepted that disclosure of the information could be reasonably expected to prejudice the effective exercise of the respondent's functions at [124] and [125]. At [107] of Luxford the Tribunal considered that officers should be able freely to do in written form what they could otherwise do orally, in circumstances where any oral communication would remain confidential. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may in the future feel reluctant to make a written record, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45. Callinan and Heydon JJ. Stated at paragraph [121]: "121. The second ground, which speaks of jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed ..."
In Jenkinson, the Tribunal accepted that disclosure of the information in question could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff.
The Respondent submitted that the public interest considerations against disclosure should be afforded significant weight because the information in issue related to the management of complaints, not the subject of the complaints (the children); the likely prejudice that would flow to the respondent's ability to manage future complaints; and the flow-on effects to staff health and wellbeing.

[17]

Balancing exercise

The Tribunal is tasked with balancing the public interest considerations against disclosure with those in favour of disclosure in determining whether the Applicant should be granted access to the redacted sections at pages 41, 71, 110, 111, 116, 125 and 126 of the material produced in response to access application GIPA 20-482. The redactions in question are those which the Respondent has identified as relying on clause 1(f) or 1(d) of the table to Section 14 of the GIPA Act.
The Tribunal's approach has to be more specific than that taken by the Respondent in its submissions. It is necessary to review each piece of information redacted and apply the balancing exercise to it to determine whether the Respondent is justified in withholding it from the Applicant.
Page 41 of the documents produced in response to GIPA 20-482 was redacted in its entirety, relying on Clause 1(f) to the Table to s 14 of the GIPA Act. Having reviewed that document, I accept it is information to which clause 1(f) applies, and I afford that consideration significant weight. I accept that the public interest consideration in favour of disclosure include the general public interest in favour (s 12(1)), that disclosure of the information could help the Applicant understand the Respondent's complaint handling process, and that disclosure could promote transparency of the Respondent's complaint handling process, however I afford these considerations limited weight in circumstances where the Applicant has been provided with a large volume of material which would assist her in understanding the Respondent's complaint handling process and promote its transparency. I also take into consideration the Applicant's personal reasons for wanting the information, pursuant to s 55(2) of the GIPA Act, but give that consideration limited weight in the circumstances. On balance the public interest considerations against disclosure outweigh those in favour.
Page 71 of the documents produced in response to GIPA 20-482 contains a redaction for which the Respondent initially relied on s126(1)(e) to Schedule 1 of the GIPA Act, but then varied its reasons to rely on clauses 1(d) and 1(f) of the Table to s 14 of the GIPA Act. Having reviewed that document and considered the Respondent's submissions which do not specifically address this redaction, I cannot understand how it is claimed the redacted information would fall within clause 1(d) of the Table to s 14 of the GIPA Act as it contains information from within the Respondent agency, but agree that the information could reasonably be expected to fall within the criteria at clause 1(f). I give that consideration significant weight. I accept that the public interest considerations in favour of disclosure include the general public interest in favour (s 12(1)), and that disclosure of the information could help the Applicant understand the Respondent's complaint handling process, and that disclosure could promote transparency of the Respondent's complaint handling process, however I afford these considerations limited weight for the reasons expressed above. Taking into consideration the Applicant's personal reasons for wanting the information, pursuant to s 55(2) of the GIPA Act, but giving that consideration limited weight in the circumstances, on balance the public interest considerations against disclosure outweigh those in favour.
Page 110 of the documents produced in response to GIPA 20-482 contains two redactions. The first is subject to the overriding presumption against disclosure at Clause 5 to Schedule 1 of the GIPA Act. The second contains email correspondence which continues onto page 111, which is also redacted. The respondent relies on clause 1(f) of the table to s 14 in relation to the redaction at pages 110 to 111. Having reviewed that document I accept that the information could reasonably be expected to fall within the criteria at clause 1(f). I give that consideration significant weight. I accept that the public interest considerations in favour of disclosure include the general public interest in favour (s 12(1)), and that disclosure of the information could help the Applicant understand the Respondent's complaint handling process, and that disclosure could promote transparency of the Respondent's complaint handling process, however I afford these considerations limited weight for the reasons expressed above. Taking into consideration the Applicant's personal reasons for wanting the information, pursuant to s 55(2) of the GIPA Act, but giving that consideration limited weight in the circumstances, on balance the public interest considerations against disclosure outweigh those in favour.
Page 116 of the documents produced in response to GIPA 20-482 is redacted in its entirety. Initially the respondent relied on clause 1(f) of the Table to s 14 of the GIPA Act however this was varied to rely on Clause 5 of Schedule 1 and the overriding presumption against disclosure for information subject to claims for legal professional privilege. Having review the document I find that the information contained therein does fall within the definition of legal professional privilege, as considered above at [67] to [69] and therefore the overriding presumption against its disclosure is maintained.
The basis for redacting and withholding page 125 of the documents was varied similarly by the Respondent and having reviewed that page I confirm that the information contained therein does fall within the definition of legal professional privilege, as considered above at [67] to [69] and therefore the overriding presumption against its disclosure is maintained.
Page 126 of the documents is redacted and withheld by the Respondent on the basis of clause 1(f) of the Table to s 14 of the GIPA Act. On my review of this page I find that it is part of the information contained at pages 125 and 126 and should properly be characterised therefore together with those pages as subject to legal professional privilege. Pursuant to s 107(1) and the overriding presumption against disclosure for information subject to legal professional privilege as referred to in Clause 5 to Schedule 1 of the GIPA Act, that information is properly withheld.

Shaw v Secretary, Department of Education

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Judgment (21 paragraphs)

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Legislation Cited (2)

Cases Cited (11)

Cited By (1)