On 1 February 2017 Mr David Shoebridge, MLC ("the Applicant") made an access application under the Government Information (Public Access) Act 2009 (GIPA Act) to the Department of Education for the following:
"A copy of the report into special religious education and special education in ethics as recommended by Legislative Council General Purpose Standing Committee No. 2 in 2012, in both its current and initial draft form (i.e. as first sent to the Minister by ARTD Consultants and after requested amendments)".
On 1 March 2017, the Respondent made an original decision to refuse to provide access to the information requested. On 14 March 2017, the Applicant filed an application for external review by the NSW Civil and Administrative Tribunal ("the Tribunal").
On 11 April 2017, following deliberation by the NSW government, the Respondent published the report titled '2015 Review of Special Religious Education and Special Education in Ethics in NSW Government Schools' by ARTD Consultants dated 23 March 2016. On 10 May 2017, following the Tribunal case conference, the Respondent reconsidered the original decision and made a new decision to provide the Applicant with a redacted copy of the draft report titled '2015 Review of Special Religious Education and Special Education in Ethics in NSW Government Schools' by ARTD Consultants dated 4 December 2015. A copy of the new decision was filed with the Tribunal on 15 May 2017.
The information that was redacted from the copy of the draft report released to the Applicant on 10 May 2017 included personal information of one third party and business information of a number of third parties. On 23 May 2017, at the Tribunal directions hearing, the Applicant notified the Tribunal and Respondent that he was not satisfied with that decision. On 13 June 2017, after consulting again with the third parties, the Respondent made a further decision to provide the Applicant with more of the draft report document and to refuse access to part of one line on page 9 only, on the basis that it was personal and business information of a third party, that "disclosing it will prejudice the person's legitimate business and professional interests" and that, on balance, there was an overriding public interest against its disclosure pursuant to s. 58(1)(d) and 14(3)(a) and (b) and 14(4)(d) of the GIPA Act. A copy of the further decision was filed with the Tribunal on 20 June 2017 ("the reviewable decision").
On 5 July 2017, the Applicant notified the Respondent by email that he wanted to continue with the external review application, for the purpose of the Tribunal's determination in relation to providing full access to the draft report, including the redacted information on page 9 of the draft report.
The parties elected to have the matter determined "on the papers". The Tribunal received submissions from both the Applicant and the Respondent, in addition to confidential submissions from the Respondent.
[2]
Tribunal's jurisdiction and powers
The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR 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, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(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, s63(3).
[3]
The GIPA Act
Section 3(1) of the GIPA Act provides:
3 Object of Act (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.
Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker 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.
The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act.
Section 54 of the GIPA Act requires an agency to take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application.
Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14.
[4]
"Could reasonably be expected…"
The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].
[5]
Consideration
The Applicant submitted that the "curriculum review" included in the draft report "is core to understanding the legitimacy or otherwise of the Special Religious Education (SRE) program". Whilst it was conceded that the identity of who undertook the curriculum review is personal information, the applicant submitted that because the person was consulted as an expert in the area and their opinion and assessment is relied upon within the report, it is entirely in the public interest to understand who has provided this expert advice for the purpose of assessing the validity of the review undertaken. The Applicant submitted that the person would have been well aware of the highly political and contentious nature of their task.
The Respondent submitted that consultation with the third party identified concerns that disclosure would prejudice the legitimate business interests and result in damage to the professional standing of the named person, on the basis of the contentious nature of the report. The Respondent submitted that the third party was not directly involved in shaping the project, writing the report or approving the content of the report, but had only reviewed the curriculum materials.
I agree with the Respondent's submissions that the relevant public interest considerations in favour of disclosure include:
1. the general public interest pursuant to s12(1),
2. that the report is of significant interest to many community groups; and
3. that the information could reasonably be expected to promote opendiscussion and informed debate on issues relating to public education,particularly in relation to special religious and special ethics in educationin NSW public schools.
In my view the considerations identified by the Applicant in his application for review, included as "additional considerations" by the Respondent in its submissions, support those considerations already identified by the Respondent:
"... there is significant public interest in the report, which has been the subject of substantial media reporting and notice. Some of this reporting has raised the possibility that the materials will show that public interest in the report.
The potential risks identified in the material make the application for the release of this report particularly urgent, especially within the context that the Department provides no guarantee about when their already lengthy 'deliberation' process will be completed.
Furthermore the equivalent report has been released publicly by the State of Queensland, lending support to the contention that this material should be released here."
The Applicant's position as a Member of the NSW Legislative Council is also relevant to consideration of the public interest considerations for and against disclosure, as both indicating motive under s55 of the Act and in affording weight to the identification of the public interest. As accepted by the Respondent in its reviewable decision, the Applicant's position provides the capacity to distribute the information sought to a wide section of the community.
I reject the Respondent's submission that:
…any public interests factors in favour of release that have been identified by the Applicant or the Respondent have been addressed and served by the release of the final and draft reports.
The Respondent relied on the withdrawal of a Tribunal review application in separate (but related) proceedings as evidence that the public interest had been served by the release of the report with the information in question redacted, and submitted that:
…releasing the name and location of the third party contractor contained in the draft report does not further the objects of the GIPA Act and does not give any further weight to the public interest considerations in favour of disclosure.
I disagree, and instead agree with the Applicant's submissions that there is public interest in favour of disclosure in identifying an expert whose opinion is relied on in the report, for the purpose of assessing the validity or strength of that opinion. Whether that is a separate public interest consideration in favour of disclosure, or rather gives weight to those already identified, is immaterial.
I find that each of the public interest considerations in favour of disclosure carries significant weight in the circumstances.
Turning to each of the public interest considerations against disclosure, the Respondent relied on the factors at clauses 3(a), 3(b) and 4(d) of the Table to s14 of the GIPA Act. There is no dispute that the information sought constitutes 'personal information' within the meaning of Clause 3(a). With respect to clause 3(b), whilst the Applicant submitted there "it is perverse to suggest that, having received significant funds to undertake such a controversial review, the third party would assume their identity could be protected", there is some evidence to support the Respondent's submissions that release of the information sought would contravene an information protection principle because:
…the third party was not aware that their name and other personal and business details were included in the draft report; they only had viewed the final published report once it was available to the public and they have not seen the draft report.
However I do not consider that either of those public interest considerations against disclosure should carry significant weight. The Applicant submitted:
…if someone does not like public scrutiny then no one requires them to take public money
I do not agree with the implication that anyone who is paid or takes "public money" will or should be subject to generalised public scrutiny. Proportionality and balancing of relevant considerations is necessary. On the evidence, the third party whose personal information is in question was hired for the specific purpose of providing the opinion, with the knowledge that their opinion may inform the contents of the report. They may not have known that their name and location would be included in the report as having contributed to its opinions and findings, but there is no evidence on which I can find that an assurance had been made that this was not to occur. So whilst clauses 3(a) and 3(b) are relevant considerations, I find that they do not carry significant weight.
The Respondent relies on Clause 4(d) of the Table to s14 of the Act, that the release of the information would prejudice a person's legitimate business, commercial, professional or financial interests. However, there is insufficient evidence before the Tribunal to support a finding that this could reasonably be expected to occur. It is a possibility, but it is couched in vague and non-specific terms and without objective evidence in support. The only evidence put forward by the Respondent does not assist the Tribunal in making the objective assessment necessary, as discussed at [19] above, as to whether actual prejudice to the personal business interests could be expected to arise, or even whether a misrepresentation of the person's involvement and opinion could occur, which is identified by the third party as a cause for their concern. I accept that the third party believes that disclosure of the information sought would prejudice their legitimate business interests. I accept that the third party also fears the possibility that disclosure could result in their involvement and opinion being misrepresented. However, this is not supported by objective evidence. Accordingly, I place minimal weight on this public interest consideration against disclosure.
The Respondent consulted with the third party whose information was in question, pursuant to s54 of the GIPA Act. I accept that the third party consulted by the Respondent objects to the release of the information. Accordingly, this adds some weight to the public interest considerations against disclosure. On balance, however, I find that the public interest considerations in favour of disclosure outweigh those against disclosure.
The correct and preferable decision is for the Tribunal to set aside the Respondent's decision of 10 May 2017 and order the information sought be released to the Applicant
[6]
Orders
1. The reviewable decision is set aside.
2. The Tribunal orders the information sought to be released to the Applicant.
[7]
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: 27 November 2017