Turner v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2023-08-15|Before: Ronald Turner AM

Background

This is an application filed by Mr Bruce Ronald Turner (Applicant) on 23 May 2023 (Application) for review of a decision by a delegate of the Secretary of the Department of Education (Respondent) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
In his access application received by the Respondent on 5 September 2022, the Applicant sought the following: "Copy of a report into a HSC cheating incident at Penrith Selective High School in 2015. The media reported, "In September 2015, Penrith High School drew controversy after it was discovered that some students had obtained the login information of a teacher and potentially tried to have their marks digitally altered for their HSC. This was followed by an investigation from Department of Education, although its conclusions are unknown."
The date range for the information was stated to be 1 July 2015 to 1 July 2016. The reason for making the access application was stated as "[c]urrently conducting research for a local history book on the Nepean Valley. No intention to use the names of any individuals." As part of the access application, the Applicant ticked the box agreeing to exclude from the scope of his application the personal information of any third parties for whom he had not provided authority and agreed to the release of his name for any third party consultation.
On 27 September 2022, a delegate of the Respondent provided the Applicant with a Notice of Decision of the same date. The delegate determined that under s 58(1)(b) of the GIPA Act, the information sought by the Applicant was not held by the Respondent and indicated that the delegate considered that reasonable searches had been undertaken in response to the access application in accordance with s 53 of the GIPA Act.
On 20 October 2022, an email was sent to the Respondent advising that the Information Commissioner had received a request for review of the Notice of Decision and sought information from the Respondent. On 31 January 2023, a delegate of the Information Commissioner provided a review report under the GIPA Act (IPC Review Report). The IPC Review Report concluded that the delegate was not satisfied that the Agency had conducted reasonable searches in accordance with s 53(2) of the GIPA Act and was not satisfied that the Respondent's decision that the information was not held was justified. It was recommended under s 93 of the GIPA Act that the Respondent make a new decision, by way of internal review, within 15 working days.

Application for administrative review

An application for administrative review of the Decision was filed with the Tribunal on 23 May 2023 (Application) and refers to the Applicant's attempts to lodge the Application by email on 31 March 2023, with an email trail of correspondence with the Tribunal attached. The Applicant's grounds for review are as follows: There is no logical explanation as to why my GIPA request to the DoE has not produced any results for alleged cheating by HSC students at Penrith Selective High School in 2015 even though there was widespread media reporting of the cheating incident at the time. Media reports made clear reference to the Department of Education, BOSTES (Board of Studies) and Penrith (Selective) High School and even quoted spokespersons from some of these entities. See further comments in Attachment 5.
Attachment 5.1 to the Application sets out a number of examples of media reports from various outlets in 2015. In attachment 5 to the Application, the Applicant referred to examples from media reports in 2015 as follows: 1. "…Penrith High School have reportedly been questioned over the security breach, which the NSW Department of Education said…"; 2. "A spokesman for the Department said the Board of Studies, Teaching and Educational Standards had received an allegation…"; 3. "Penrith High School has taken appropriate disciplinary action against…"; 4. "…working with the [board of studies]"; 5. "The Department of Education spokesman said Penrith High School had assured education authorities …"; 6. "The Board of Studies confirmed that it was investigating…"; 7. "The Department of Education confirmed it had launched a comprehensive investigation…"; 8. "A Department of Education spokesman confirmed…"; 9. "Board of Studies, Teaching and Educational Standards has received an allegation…"; 10. "Any allegation that is made to BOSTES is taken seriously, and a comprehensive investigation is underway…"; 11. "Penrith High School has taken appropriate disciplinary action…"; 12. "Penrith High School has assured BOSTES that the correct and true marks will be submitted" the spokesman said; 13. "The school is looking into the matter and is working with the BOSTES"; 14. "Penrith High School directed calls on the matter to the Department of Education…"; and 15. "The Board of Studies said it was currently investigating a security breach…".

Jurisdiction

An application for administrative review of "an administratively reviewable decision" may only be made by an interested person: s 55 Administrative Decisions Review Act 1997 (NSW) (ADR Act). An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction": s 7 ADR Act. The Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision": s 9 ADR Act. An "administrator" is the person or body that makes the decision under enabling legislation: s 8 ADR Act.
Section 80 of the GIPA Act sets out which decisions are "reviewable decisions" of an agency and includes a decision that government information is not held by the agency: s 80(e) of the GIPA Act . Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the ADR Act.
No issue was taken by the Respondent in relation to the jurisdiction of the Tribunal to hear the Application, including the time in which the Application was filed. It appears however that the Application was not filed within the relevant time set out in s 101(1) of the GIPA Act. In the circumstances, I dispense with the requirement for an application to extend time to be in writing in this case, and find that the email trail in the Application establishes that the Applicant has provided a reasonable excuse for any delay in relation to its filing. Accordingly, I extend the time for the filing of the Application to 23 May 2023 pursuant to s 101(4) of the GIPA Act. It is noted that the Tribunal also has power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to extend the time f for the filing of the Application. In all of the circumstances, I am satisfied that the Tribunal has jurisdiction to hear and determine the Application.

Relevant legislation

The object of the GIPA Act as set out in s 3 is to open government information to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It is not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: s 9(1) of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.
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 sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 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.
Section 14 sets out the overriding public interest considerations against disclosure of government information and relevantly provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table [Note: 1 Responsible and effective government: There is a public interest 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): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed] … [Note: 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ….]
The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Part 4, Division 3 of the GIPA Act sets out the process for dealing with access applications.
In responding to an access application there is a requirement for the agency, in this case the Respondent, to undertake reasonable searches to locate information sought in the request, which is held by the agency. Section 53 of the GIPA Act provides: 53 Searches for information held by agency (1) 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. (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) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant.
Following that process, the agency can do any of the following as provided for by s 58 of the GIPA Act: (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note : These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.
Part 5, Division 4 of the GIPA Act concerns administrative review of decisions by the Tribunal. Section 105(1) in that Division provides, relevantly, that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the GIPA Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by the section. Section 105(2) provides as follows: (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
Schedule 4, clause 4 of the GIPA Act contains the definition of "personal information" for the purposes of the Act. It provides, relevantly: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: … (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) sets out the "information protection principles" prescribed by that Act. Section 18 relevantly provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. …
The term "personal information" is defined in s 4 of the PPIP Act, relevantly, as follows: 4 Definition of "Personal Information" (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. …
In determining an application for administrative review, the Tribunal is to consider s 63 of the ADR Act which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Material considered and the hearing

I have had regard to the following material:

Applicant 1. Application, including attachments; 2. Material filed by the Applicant on 20 July 2023, under cover of a letter dated 18 July 2023, including the following: 1. 'Submissions of the Applicant' dated 18 July 2023 (Applicant's submissions); and 2. The following documents attached to the Applicant's submissions: 1. Comments provided by the Applicant; 2. Excerpt from the Information and Privacy Commission (IPC) Fact Sheet "A guide to protecting your privacy in NSW"; 3. Excerpt from ICAC February 2007 Report "Report on an investigation and systems review of corruption risks associated with HSC take-home assessment tasks"; 4. Excerpt from IPC Fact Sheet of January 2023 "Fundamentals for deciding an access application under the GIPA Act"; and 5. "Applicant's Summary of Facts Contained in Department of Education Materials";

Respondent 1. Documents filed on 15 June 2023 and numbered 1 to 9 inclusive, with document numbered 9 being the Decision; 2. Documents filed on 18 July 2023 consisting of "Submissions of the Respondent" dated 13 July 2023 (Respondent's July submissions) and a bundle of documents marked as TAB A through to TAB L (inclusive), consisting of the following: 1. Applicant's access application; 2. Notice of Valid Non Personal Application sent by the Respondent to the Applicant on 15 September 2022; 3. Notice of Decision by the Respondent dated 27 September 2022; 4. IPC Review Report dated 31 January 2023; 5. Email from the Respondent to the Applicant dated 9 February 2023 notifying that the Respondent would conduct an internal review pursuant to s 93 of the GIPA Act; 6. The Decision; 7. Statement of Alexandra Morrison dated 12 July 2023; 8. Email trail between the Respondent and the NSW Education Standards Authority (NESA); 9. GIPA Search Officer Declaration Form from Chantal Beltran dated 19 September 2022; 10. GIPA Search Officer Declaration Form from Jaclyn Cush dated 6 March 2023 11. GIPA Search Officer Declaration Form from Kathy Robinson dated 6 March 2023; 12. GIPA Search Officer Declaration Form from Liam Thorpe dated 27 June 2023; 13. GIPA Search Officer Declaration Form from Dionissia Tsirigos dated 3 July 2023; 14. A redacted document titled "Confidential Note to Principal" dated 4 September 2015 and a redacted email trail relating to emails from Deborah Summerhayes; and 15. An unredacted copy of the document referred to in (N) above and provided to the Tribunal and marked "CONFIDENTIAL" (CR1). 1. "Legal Summary" dated 1 August 2023 and filed on 3 August 2023; 2. Reply Submissions of the Respondent dated 1 August 2023 and filed on 3 August 2023 attaching an email between officers of the Respondent and NESA. 3. At the hearing, Ms Pendergast, who appeared on behalf of the Respondent handed up to the Tribunal an envelope containing material and marked "CONFIDENTIAL" (CR2). 4. At the request of the Tribunal, further material relating to the Suspension Register maintained by the Respondent was provided to the Tribunal by the Respondent and marked "CONFIDENTIAL" (CR3).

The hearing was held on 15 August 2023 and no oral evidence was called by either party. Both parties made oral submissions in the matter and the hearing was conducted as an open hearing.

Summary of Applicant's submissions

In the written Submissions of the Applicant, he noted that government agencies in NSW, such as the Department of Education (the Department) are responsible for maintaining complete and accurate records in line with requirements under the State Records Act 1998 (NSW). The Applicant also made reference to the recommendations made by the Independent Commission against Corruption (ICAC) following an investigation into one form of HSC cheating, and that a system was developed for centrally recording, assessing and analysing the number and type of misconduct incidents that occur in the Higher School Certificate (HSC) assessment programs and submitted work. The Applicant noted that the reporting system is used to publicly report the numbers and types of malpractice incidents and investigations outcomes for all incidents of malpractice.
The Applicant indicated that he was pursuing the requested information with the aim of providing a balanced and factual based story for a local history book centred on the Nepean Valley, which includes the Penrith Local Government Area where Penrith Selective High School is situated. He indicated that he believed that his GIPA request was consistent with the improved level of transparency that had been recommended by the ICAC.
In relation to his access application, the Applicant emphasised that a narrow definition of the work "report" should not be applied. He noted that it was the Respondent's Media Unit that informed several media outlets at the time that "a comprehensive investigation is underway" and that "Police are also involved in the investigation." The Applicant submitted that he did not seek the names of any individuals in his access request in order to avoid the risk of identifying an identifiable person, but he was reasonably seeking information on the cheating incident. The Applicant made reference to the IPC Factsheet "A guide to protecting your privacy in NSW issued May 2020" and that under NSW privacy law, "personal information means any information or opinion about an identifiable person. This includes records containing your name, address, and sex, or physical information such as fingerprints, blood samples or your DNA…" The Applicant contended that he did not seek these details.
The Applicant indicated that he agreed with the Respondent's submission that it is not in the public interest to release student names but indicated that he "strongly disagrees" with the assertion that it is not in the public interest to release details of the cheating incident, namely by releasing details "without" student names.
The Applicant made reference to the Respondent seeking a transfer of the access request to NESA and that NESA refused the transfer. He submitted that even under the cluster model, the Department, as the lead agency, is required to maintain complete and accurate records across the cluster in relation to the State Records Act 1998, or to at least to ensure that agencies within the cluster do so.
The Applicant referred to the Respondent's reference to a suspension record being held by the Department and then stating that it is not within the scope of the access request. The Applicant contended that he could see no legitimate basis for making such a determination if the student names and other personal identifiers were not included and submitted that this was within the scope of his access request.
The Applicant also referred to the Respondent's submission that "…the Media unit undertook searches and found several media articles and responses (the applicant's emphasis) regarding the incidents (but these) …are not within the scope of the application". The Applicant submitted he could see no legitimate basis for such a determination and also asserted that providing an excerpt from the Suspension Register of the sanctions applied for the students involved in relation to the cheating incident (with student names redacted) would not breach the privacy of students; is within the scope of the access request; and is in the public interest. The Applicant also referred to the further searches undertaken by the Respondent following the case conference, consistent with his requests and noted that several communications had subsequently been found.
The Applicant submitted that much of the information he sought was contained in Tab L and Tab N of the Respondent's evidence, and had been found even after the Respondent had indicated that it did not hold any records. He submitted that access to these records would enable him to factually confirm the veracity of the media reporting that he had referred to. He indicated that it was not clear from this information what sanctions applied to the student.
The Applicant asserted that the information that he requested does exist and that efforts made to locate the information by the Respondent were not reasonable. He made mention of a response from an officer of the Respondent on 27 September 2022 that no information was held, when she knew that it was. It was submitted that the Respondent clearly does hold information on the cheating incident as set out in the access request and that earlier search efforts taken by the Respondent were not reasonable.
It was submitted that the Respondent was declining to release the requested information on flawed grounds and accordingly, the Decision was not the correct and preferable decision. The Applicant respectfully asked for the Tribunal to direct the Respondent to provide the further information on the cheating incident, without naming any persons, including:

Information on sanctions recorded in the Suspension Register at Penrith High School;
Contemporaneous notes (or other records) documenting the interviews with the students; and
Information on sanctions (or otherwise) applied against the teacher whose password or other logical access security parameters were allegedly breached in facilitating the cheating.

The Applicant contended that he should not be treated less favourably than a newspaper journalist in expecting the Respondent to release information in a timely manner when requested (see Tab L), regardless of the form of the request. The Applicant referred to the presumption in favour of disclosure under the GIPA Act and that clear reasons are required to overcome that presumption. He also sought that the Tribunal consider recommending appropriate remedial action and/or sanctions in relation to a named officer of the Respondent.

Summary of the Respondent's submissions

It was the Respondent's primary submission that the search efforts made by the Respondent were reasonable and that the Respondent conducted three separate searches using a variety of search terms across a number of relevant line areas. The Respondent submitted that it has appropriately responded to the relevant concerns raised by the Applicant.
In the Reply Submissions, reference was made to the Applicant's assertion that a narrow interpretation of "report" was applied. The Respondent submitted that searches were undertaken using broad terms and this is seen in the search officer declarations at Tab I to Tab M inclusive.

Consideration

In the decision of Raven v The University of Sydney [2015] NSWCATAD 104 at [45], the Tribunal cited with approval the comments in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24], that proceedings under the GIPA Act should not be used "as a vehicle for the collateral review of the merits or validity of official action". On this basis, I place little weight on the Applicant's submissions in relation to the ICAC recommendations; the Applicant's references to the Respondent's provision of information to the media in 2015; the Applicant's references to the Respondent's non-compliance with the State Records Act and the Applicant's comments relating to his perception of his experience in pursuing his access application.

Issue of whether information held by the Respondent

To determine the outcome of the Application , the Tribunal must consider and determine the following issues: 1. Whether the Respondent has discharged the onus imposed by s 105 of the Act in establishing that no information is held by the Respondent that falls within the scope of the access request; and 2. Whether the Respondent has discharged the onus imposed by s 105 of the Act in establishing that the Respondent has conducted reasonable searches for such information.
Whether the Respondent's decision that no information is held that falls within the scope of the Applicant's access application, is correct and preferable, ultimately depends upon whether the Respondent is able to discharge its onus of establishing that reasonable searches have been conducted for that information.
In Klaric v Commissioner for Police [2020] NSWCATAP 153, an Appeal Panel of the Tribunal considered the extent of the Tribunal's power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]: 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 the 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 Appeal Panel in Wojciechowski v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowski) concurred with that statement, but added at [41]: 41. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". …
The Appeal Panel went on to state at [42]-[44]: 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies with the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (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.
Section 53 imposes a "reasonableness" standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be "logical", "sensible", "appropriate" and "fair" but are not required to be "extreme" or "excessive". The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency's obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer (CLT v Secretary, Department of Education [2022] NSWCATAD 34 at [40]; Ugur v Commissioner of Police (NSW) [2022] NSWCATAD 396 at [52].)
It thus falls to the Respondent to establish pursuant to s 105 of the Act that the Respondent has carried out searches for government information within the scope of the access application in a logical way that has been fair to the Applicant having regard to the object of the GIPA Act and the Applicant's section 9(1) right to government information.
The starting point for analysis is to recognise that the GIPA Act legislative scheme places a high onus on agencies to identify and provide access to government information: ss 3, 5, 9 and 12. That obligation operates subject to limitations. However, leaving aside information that is excluded from the operation of the Act, this requires an agency to identify all information that falls within the scope of an application such that it is able to determine if it is to be disclosed or a limitation on disclosure applies. The searches conducted by the agency must therefore be robust enough to identify such information.

The Decision

The relevant sections of the Decision are set out as follows: Search for records I consider that reasonable searches have been undertaken in response to your internal review application in accordance with section 53 of the GIPA Act. Under section 53 of the GIPA Act the department must undertake 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, using the most efficient means reasonably available to the department. The department keeps records electronically (in shared drives and an Electronic Documents Management System (TRIM or HPRM), in physical files (hard copy) and in individual's email accounts. All relevant systems were searched by the search areas as outlined below Original Record of Search - Penrith HS and Education office Systems searched Search terms used TRIM/HP Records Manager - List key words and date ranges searched 15/9/22: Student- no records found in TRIM Local computer drives and other electronic records systems - List key words, date ranges, folders and drives searched 15/9/22: Student- no records found in school Hardcopy files -list file numbers and location of records searched 19/9/22: Student - no records found in education office

Searches were conducted using the name of the student involved in the incident. No records were found at the school or the education office Internal review searches Record of Search Education office Systems searched Search terms used TRIM/HP Records Manager - List key words and date ranges searched Penrith High School, Penrith Selective High School, HSC students cheat, HSC 2015 Local computer drives and other electronic records systems - List key words, date ranges, folders and drives searched Penrith High School, Penrith Selective High School, HSC students cheat, HSC 2015 Emails - list the names of employees emails and the date range searched Chantal Beltran- self

Record of Search - Penrith High School Systems searched Search terms used TRIM/HP Records Manager - List key words and date ranges searched HSC marks, Penrith Selective High School, Penrith High School, HSC cheating incident, marks digitally altered, HSC students cheat- dates prior to 6 March 2023. Local computer drives and other electronic records systems - List key words, date ranges, folders and drives searched HSC marks, Penrith Selective High School, Penrith High School, HSC cheating incident, marks digitally altered, HSC students cheat- dates prior to 6 March 2023. Hardcopy files -list file numbers and location of records searched Physical files Nirimba Office Emails - list the names of employees emails and the date range searched Kathy Robinson prior to 6 March 2023

Evidence of Alexandra Morrison

Alexandra Morrison made a statement dated 12 July 2023. She is an officer of the Department of Education and Communities (the Department) and at the time of making her statement, held the position of Principal Right to Access Officer. Ms Morrison stated that she had been in that role since 2019 and was responsible for processing complex non-personal and personal applications and internal and external review applications. Ms Morrison indicated that she was the officer who reviewed the search procedures for this matter.
Ms Morrison stated that on 15 September 2022, a search officer request email was sent to the Executive Director, Metropolitan South and South West as they were identified as most likely to hold the information. A copy of that email was annexed to her statement as "Annexure 1".
Ms Morrison stated that on 19 September 2023, the Relieving Director, Educational Leadership, Penrith Principals' Network responded that no records were held, and a copy of that response was attached to Ms Morrison's statement as "Annexure 2". "Annexure 2" is dated 19 September 2022, and it appears that Ms Morrison has made an error in referring to the year 2023. I am satisfied that the response set out in "Annexure 2" that no records were held was in fact sent on 19 September 2022 rather than in 2023.
Ms Morrison refers to the receipt of the IPC Review Report on 23 January 2023 and states that on 2 March 2023, search officer request emails were sent to the Director of Educational Leadership, Penrith Principal Network. A copy of that request is attached to Ms Morrison's statement as "Annexure 3". Ms Morrison further stated that on 6 March 2023, two areas provided search officer declarations stating that no records were held that were within the scope of the access request. Ms Morrison indicated that these search officer declarations were located as Tab J and Tab K of the Respondent's July Submissions.
Ms Morrison refers to searches that were undertaken after the Tribunal case conference in this matter and stated that on 27 June 2023 and 30 June 2023, search officer request emails were sent to the Department's Media Area as well as the Curriculum and Reform Area. These request emails were attached to Ms Morrison's statement as "Attachment 4". Ms Morrison states that on 27 July 2023, the Media unit provided articles that were not within the scope of the access request and on 3 July 2023, Curriculum and Reform responded with no records held. Ms Morrison indicated that these documents were located as Tab L and Tab M of the Respondent's July Submissions.
Ms Morrison did not give oral evidence and was not required for cross examination.

Scope of Application

In considering this matter, it is necessary to determine the scope of the request in the Applicant's access application. The first paragraph of the request seeks "Copy of a report into a HSC cheating incident at Penrith Selective High School in 2015".
The second paragraph is a quotation from a media report relating to events at that school in September 2015, including that "…[t]his was followed by an investigation from the Department of Education, although its conclusions are unknown." It is clear that this second paragraph is not of itself a request for information but rather provides context for the Applicant's request in the previous paragraph for a "Copy of a report…".
I have had regard to the Applicant's submissions that a narrow definition of the word "report" should not be applied and that the meaning of a "report" to him is "a spoken or written account of something that one has observed, heard, done or investigated" and that this was the intent behind his original request. The Applicant submitted that in his view, a report can range from a formal report though to contemporaneous notes, and can simply be understood by an average or prudent person as "information". The Applicant submitted that "report" was used in his access application in the context of the generic terms reported in newspapers, with the Applicant understanding there would be some type of information resulting from the "investigation" by the Respondent into the reported incident. It is apparent in this submission, and in the request itself, that the Applicant distinguished between an investigation into the incident carried out by the Respondent and any conclusions resulting from such an investigation.
The word "report" can be used as both a noun and a verb, and the Macquarie Dictionary Online 2024 (Macquarie Dictionary) contains some 23 different meanings for the word.
The IPC Review Report records that in seeking a review of the decision by the IPC, the Applicant identified that: "[i]t does not make sense to me that there is no report on the 2015 HSC cheating incident at Penrith High School within the records of the DoE nor NESA (Board of Studies). This possible [sic] means to me that (one or more): - The DoE search of records was too narrow, and therefore not considered reasonable. -The DoE/NESA response to the media in 2015 about an 'investigation' was misleading (whether deliberate or otherwise). -There was no such event (unlikely given the wide media reporting across the print, television and social media). -The DoE/NESA is non-compliant with its statutory responsibilities for records and archival management. - The DoE is not fulfilling its transparency obligations under the GIPA legislation."
The IPC Review Report includes reference to the Applicant, whilst not being required to do so, having indicated in his Review Application that he advised the Respondent after the Notice of Decision of several media reports that identified the cheating incident the subject of the access application. The IPC Review Report then sets out various matters identified by the media reports provided by the Applicant as being relevant to the incident and concludes as follows: "31. In my view, the media reports identified by the Applicant provide support for the existence of information sought in the Access Application being held by the Agency. In particular, I note the statements made by a Department of Education spokesman of a comprehensive investigation being launched and that action will be taken if the allegation received is substantiated. It is reasonable to expect that a report, whether formal or informal or in other forms such as a file or briefing note, would arise from an investigation and in the course of determining if an allegation is substantiated. It is also reasonable to expect that any report may have been attached to an email or taken the form of an email."
There is no evidence that following receipt of the IPC Review Report that the Applicant advised the delegate of the Information Commissioner, that the scope of his access application had been mischaracterised by the delegate, and no evidence that he sought to clarify his request with the Respondent prior to the Decision. Having regard to all of the material before the Tribunal, it would seem that the information being sought by the Applicant in his access application is a report, either formal or informal, or in some other form, arising from any investigation carried out by the Respondent into the cheating allegations. This is consistent with the following definition of "report" as set out in the Macquarie Dictionary: noun 1. an account brought back or presented; a statement submitted in reply to inquiry as the result of investigation, or by a person authorised to examine and bring or send information.
In my view, this characterisation is also consistent with the Applicant's agreement to exclude from his access application the personal information of any third parties for whom he had not provided authority and also the reasons that he provided for his request, namely research for a local history book on the Nepean Valley. Notwithstanding this view, for the purpose of this review, I accept the Applicant's contention that the term "report" should be interpreted very broadly, and that it should include all information arising from any investigation of the cheating incident. This interpretation was not challenged by the Respondent in the proceedings.
It was noted at the case conference on 19 June 2023 by Ms Pendergast, the representative for the Respondent that: "…No investigation or report was made into the incident - individual students were investigated, however, this information is the personal information of the student and is not information falling within the [A]pplicant's access application as he expressly said he did not seek access to that information.
Similarly, in the Respondent's July Submissions, Ms Pendergast indicated that "there is in fact no report or investigation other than the action taken to interview and discipline the students involved."
Reference is made in the search records relied upon by the Respondent to a witness statement, student files and the Suspension Register and it is apparent from the notes and submissions, that the Respondent accepts that action was taken to interview and discipline the students involved in the incident.
The access application made by the Applicant was made on the basis that he agreed to exclude from the scope of his access application "the personal information of any third parties" for whom he had not provided authority. There is no evidence before the Tribunal that the Applicant provided authority for any third parties in support of his access application.
I have had regard to the definition of "personal information" in clause 4 of Schedule 4 of the GIPA Act as set out above, and am satisfied that the confidential material produced by the Respondent (CR1, CR2 and CR3) contains the personal information of individuals, including school students, whose identity is apparent. I am satisfied on all of the available material, that even if the name of the individual was redacted, the identity of the individual could be reasonably ascertained. In reaching this conclusion, I have had regard to the Applicant's request for information, which relates to a specific cheating incident involving HSC students for a particular year and from a particular high school, as well as to the limited number of HSC students at that particular high school for the 2015 year. Given my finding on this issue, I am satisfied that the material contained in the confidential material (CR1, CR2 and CR3) has been expressly excluded by the Applicant from the scope of his access request.

Respondent's decision that information is not held

It is apparent from the statement of Ms Morrison that further searches were conducted on behalf of the Respondent following the receipt of the IPC Review Report and also after the Tribunal case conference in the matter. It is apparent from the open documentary material, that as a result of the various searches conducted by the Respondent, a number of documents were located that included witness statements; the Suspension Register; department responses to media; and media articles that were considered by the Respondent to be outside of the scope of the access request. I have now made a similar finding in relation to the confidential material as set out above.
I accept the Respondent's submissions that the fact that further documents are subsequently located does not mean that the initial searches were not reasonable: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28]. In CLT v Secretary, Department of Education [2022] NSWCATAD 34, the Tribunal held at [44] that the finding of two additional documents "highlights the fact that both the original and subsequent agency searches for information responsive to the access application have been genuine and thorough".
I accept that in the current matter that additional searches were carried out in relation to the Respondent's Media Unit by the Respondent after the case conference and that these searches were consistent with suggestions made by the Applicant. Whilst further documents were located by the Respondent, these documents were out of scope of the access application. Nonetheless, copies of the media responses, with some limited redactions, and the media articles were provided to the Applicant. A further document (Tab N) was also provided to the Applicant that was headed "Confidential Note to Principal" with the subject being "Action taken in informing DOE agencies". This document does not appear to fall within the scope of the Applicant's request but was nonetheless provided to him by the Respondent in a redacted form.
The Respondent's material also included an email trail between the Respondent and NESA, in which the officer from NESA indicated that it was unable to consent to a transfer of the access application: Tab H.
I agree with the conclusions set out by the delegate of the Information Commissioner in the IPC Review Report that were reached on the basis of the evidence then available. However, on all of the evidence before the Tribunal, including the statement of Ms Morrison and the evidence of the further searches undertaken by the Respondent, I am satisfied that the entirety of the searches that have been conducted by the Respondent have been sensible and appropriate.
In all of the circumstances, I am satisfied that the Respondent has discharged the onus imposed by s 105 of the GIPA Act, namely that the decision that information is not held by the Respondent is justified. In making this finding, I am satisfied that the Respondent has discharged the onus in establishing that it conducted reasonable searches for such information in accordance with s 53(2) of the GIPA Act.
It follows that the Respondent's decision that it does not hold the information sought in the access application is the correct and preferable decision and should be affirmed.

Non-publication orders

As set out above, the Respondent provided the Tribunal with material on a confidential basis (CR1, CR2 and CR3).
For the reasons set out above, I have affirmed the Respondent's decision and it is therefore appropriate for me to make non-publication orders pursuant to ss 64 (1)(c) and 64(1)(d) of the NCAT Act which will prohibit the publication or disclosure of the confidential information (CR1, CR2 and CR3) to the Applicant.

Orders 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the confidential material (CR1, CR2 and CR3) or matters contained in this material is prohibited. 3. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the confidential material (CR1, CR2 and CR3) or matters contained in this material is restricted to the Respondent and the Tribunal.

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 August 2024

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (5)

Cases Cited (7)