On 8 July 2014, the applicant applied under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") for:
Access to the legislation/Acts/enactments or legal documents that the DEC is obliged to use for making its administrative decisions regarding practice teacher assessment issues.
Access to information on all avenues of appeal for practice teachers affected by the DEC's administrative decisions.
On 1 August 2014, the Department of Education and Communities ("Department") notified the applicant of its decision. It informed her that there was no legislation, Acts, enactments or legal documents outlining the obligations or requirements of the Department in regards to practicum placements for initial teacher education students. It also informed her that there was no departmental policy document describing conditions for practicum placements. It advised that the guiding document around practicum placements is authored by the Board of Studies Teacher Educational Standards, and provided an electronic link to the document.
The Department's position, as expressed in the 1 August 2014 letter, is that Department schools and individual teachers do not make any administrative decisions relating to a pre-service teacher's degree, and that the Department does not hold any information regarding avenues of appeal. Decisions as to pre-service teachers are, according to the Department, made entirely by the university administering the practicum.
The Department decided, under s 58(1)(b) of the GIPA Act, that the information sought by the applicant was not held by the Department.
On 3 September 2014, the applicant applied to this Tribunal for a review of the Department's decision. She sought a review on the ground that "I am not satisfied with the decision."
On 21 October 2014, a planning meeting was held and the parties were directed to file and serve evidence and submissions. The respondent Department filed its evidence and submissions on 18 November 2014, in accordance with the timetable.
The applicant did not file any submissions or evidence by 2 December 2014, as she had been directed to do.
On 7 January 2015, the respondent filed further submissions referring to the applicant's failure to file submissions or evidence and asking to have the matter heard on the papers or summarily dismissed.
On 9 January 2015, the applicant filed submissions opposing the respondent's proposal to dismiss the proceedings or decide the matter on the papers. She explained her failure to comply with the timetable as being due to her intention to obtain information via a summons. She signalled her intention to provide a final report made and signed by a teacher employed by the Department.
On 9 January 2015, the applicant also emailed the respondent enclosing a summons filed the same day. The summons sought a "copy of the Act/enactment legislation under which DEC's administrative decisions concerning assessment are made" and a "copy of the document/s that provides information regarding avenues to appeal DEC's administrative decisions concerning assessment issues", relating to the period March to August 2014.
On 20 January 2015, the Department produced, in response to the applicant's summons, the Teacher Accreditation Act 2004 (NSW), a document entitled "A Framework for High-Quality Professional Experience in NSW Schools," a document entitled "Professional Experience Policy" and "NSW Institute of Teachers Policy: Accreditation of Proficient Teacher/ Professional Competence." The applicant did not appear at the return of summons.
On the same day, the respondent wrote to the Tribunal requesting the applicant to make available the teacher's report referred to in her submissions by 29 January 2015. She did not do so.
A hearing was held on 5 February 2015. At the end of the hearing, I gave an oral decision affirming the Department's decision that it does not hold the documents sought. These are my reasons for that decision.
[2]
RELEVANT LEGISLATIVE PROVISIONS
Under s 53(1) of the GIPA Act, the obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. By s 53(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.
Pursuant to s 58(1)(b) of the GIPA Act, an agency may decide an access application for government information by deciding that the information is not held by the agency.
A decision that government information is not held by the agency is a reviewable decision (GIPA Act, s 80(e)).
In the circumstances of these proceedings, the burden of establishing that the decision is justified lies on the agency (GIPA Act, s 105(1)).
[3]
RESPONDENT'S EVIDENCE
Mr Geoff Pellizzer, Director LSLD Professional Learning in the Department of Education and Communities, made a statement for the Department. In the statement, he gave evidence that, having made reasonable searches, the Department holds no legislation, Acts, enactments or legal documents outlining the obligations or requirements of the Department in regards to practicum placements for initial teacher education students. He also gave evidence that the Department does not hold any information regarding an avenue to appeal the assessment, because the Department did not make the assessment. He stated that the search for the requested information took two hours.
[4]
RESPONDENT'S SUBMISSIONS
The Respondent relied on Mr Pellizer's evidence to support its position that it does not hold the information sought. It submitted that the key guiding document around practicum placements is authored by the Board of Studies, Teaching and Educational Standards. It also submitted that schools voluntarily enter agreements and partnerships with universities to supervise pre-service teachers during professional experience placements and that no administrative decisions are made relating to a pre-service teacher's degree by schools or any individual teacher. It said that the relevant information was held by the university in question.
The respondent did not submit that a request for access to legislation is not a request for "government information" because legislation is not information contained in a record held by an agency. Nor did the respondent submit that the applicant's request for the "legal documents that the DEC is obliged to use for making its administrative decisions regarding practice teacher assessment issues" was in fact a request for legal advice, and not a request for government information. As I am satisfied that the respondent does not hold the information sought in any event, it has not been necessary to address these issues.
[5]
HEARING
At the hearing, the applicant produced a report assessing her professional experience at a public school. It was on university letterhead but was signed by a public school teacher. It made comments about the applicant's performance in various areas during her teaching practicum.
I gave leave to the applicant to file this document at the hearing and rely on it, even though it had only been served on the respondent on the day of the hearing. The respondent did not object to this course.
[6]
Application for anonymisation
The applicant sought an order anonymising her name, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The reasons for this application were the applicant's concerns that publication of her name would affect her employment prospects with a government agency or in the educational sphere generally. She said she had been verbally abused by the Department many times and that publication of her name would be likely to lead to further abuse. She did not provide any documentary or other evidence to support her claim that the abuse had occurred.
The respondent submitted, through its representative Mr McGhee, that it would be inappropriate to make the order sought.
[7]
Summons
The applicant also complained that the respondent had not properly complied with the summons, in that it had withheld legislation which was captured by the summons. She sought an order that the Department provide that information, and said that the Tribunal should not proceed to make a decision on an assumption (being that the Department had produced all the relevant documents, when in her view it had not).
Mr McGhee submitted that the Department had fully complied with the summons.
[8]
Evidence of Mr Pellizer
Mr Pellizer gave oral evidence and was cross examined by the applicant. The applicant put to Mr Pellizer that he had been lying in his statement when he said the Department did not make the assessment of the applicant during her teacher practicum. She showed him the public school teacher's comments and signature on the University's practicum form to demonstrate that his view that the Department had not assessed the applicant was wrong.
Mr Pellizer accepted that a public school teacher had made the comments on the form but said that, while the teacher provided comments, it was the university which made the assessment, not the Department.
[9]
Determination at hearing
The Tribunal decided that the matter should proceed to a hearing, rather than be determined on the papers. The respondent has the onus of establishing that the decision is justified, and the applicant is therefore entitled to an opportunity to cross examine the respondent's witness about the conduct of reasonable searches for the information sought.
[10]
Non-publication order
The Tribunal was not satisfied that it was desirable to make an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the applicant's name.
As this Tribunal noted in Beer v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 23 at [11], "[t]he general rule that proceedings are to be open to public scrutiny is a reflection of a fundamental precept of the common law concerning the administration of justice". The legislature has given this Tribunal, like the Administrative Decisions Tribunal which preceded it, specific powers to limit the publication of identifying material relating to parties and witnesses, where it is "desirable" to do so. Notwithstanding that this confers a broad discretion on the Tribunal, the principle of open justice remains relevant.
The Appeal Panel summarised some of the relevant principles applicable to the making of non-publication orders under the legislation governing the Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. In my view, those principles are equally applicable under the Civil and Administrative Tribunal Act 2013. They include "the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order".
The applicant's claims about the effect of the publication of her name on her employment prospects do not establish that there are unusual circumstances justifying a suppression order and there is no evidence to support those claims. The presumption in favour of open justice should therefore prevail.
[11]
Summons
I decided not to order the Department to produce further documents pursuant to the summons, as requested by the applicant, for the following reasons. Firstly, the time to raise the Department's compliance with the summons was at the return of summons, which the applicant did not attend. Secondly, the documents sought under summons were those the subject of these proceedings, so that a question of abuse of process arose. Thirdly, I doubt whether legislation, which is publicly available, is the proper subject of a summons to produce. Fourthly, the applicant did not provide any evidence to suggest that the Department did not in fact comply with the summons.
The Tribunal must seek to give effect to the guiding principle, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when making orders under the Civil and Administrative Tribunal Act 2013 or the procedural rules, and the applicant is also under a duty to co-operate with the Tribunal to give effect to the guiding principle (Civil and Administrative Tribunal Act 2013, s 36(1)-(3)). I was of the view that the order sought by the applicant would not facilitate the just, quick or cheap resolution of the real issues in the proceedings.
[12]
Review of respondent's decision
The Tribunal's role in reviewing the respondent's decision that it does not hold the information sought by the applicant is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act 1997 (NSW), s 63(1)).
When determining what constitutes an adequate search, this Tribunal and the Administrative Decisions Tribunal have been guided by the decision of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) QAR 464 (see, for example, Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18]; Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11] and Stanley v Roads and Maritime Services [2014] NSWCATAD 123 at [16] and [17]). In the Shepherd case, the Queensland Information Commissioner outlined a two-stage test to resolve the question of what constitutes an adequate search for the purposes of the Queensland freedom of information legislation as it then stood:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
The Department provided evidence, through Mr Pellizer, of the searches it conducted to obtain the information sought by the applicant. Mr Pellizer is a senior officer in the Department and I assessed him as being a reliable and truthful witness. The Department also provided an explanation of the reasons why it says it does not hold that information, being that universities conduct teacher practicum assessments with the cooperation of individual schools and school teachers, that the guiding document is authored by the Board of Studies and that, as administrative decisions are made by the University concerned, it does not have records about avenues of appeal.
Although the applicant was able to show that public school teachers assess the performance of students undergoing a teacher practicum, on her own evidence the teacher completes the assessment on a form provided by a university. This is consistent with the respondent's evidence that the university is ultimately responsible for the assessment, and that it does not hold policy documents or have appeals processes relating to teacher practicum assessments.
The respondent has satisfied me that there are no reasonable grounds to believe that the requested documents exist and are documents of the agency (or, to use the language of the GIPA Act, there are no reasonable grounds to believe that the requested information exists and is held by the Department). In this context, the searches conducted by the Department, although not extensive, were reasonable.
The respondent has therefore discharged its onus of establishing that the information sought is not held by it, and I affirm the respondent's decision.
[13]
Costs
After I had made my decision concerning the applicant's application, the respondent made an application for costs pursuant to s 60 of the Civil and Administrative Tribunal Act 2013. Mr McGhee submitted that there were special circumstances warranting an award of costs, pursuant to s 60(2), having regard to the relative strengths of the claims made by each of the parties, including that the applicant had made a claim that has no tenable basis in fact or law, and that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (see s 60(3)(c) and (e)). He said that the Department had provided the applicant with the information that the university, not the respondent, conducted the relevant assessments, and with documents supporting this position, some time ago.
I declined the respondent's application for costs. The applicant's case was relatively weak, and would have caused the respondent to incur legal costs which might appear to the respondent to have been unnecessary. However, the respondent bears the onus of establishing that its decision is justified and the applicant was entitled to cross examine the respondent's witness to test his evidence. Further, the amount of time the respondent spent searching for the information was comparatively short. Whilst I can understand the respondent's frustration that the applicant did not accept its explanation of why it did not hold the information sought, the applicant's conduct does not constitute "special circumstances warranting an award of costs" in these proceedings. The primary rule, that each party to proceedings in the Tribunal is to pay the party's own costs, should apply.
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: 25 February 2015