Adams v Department of Family and Community Services

Case •

[2016] NSWCATAD 46

•

08 March 2016

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Adams v Department of Family and Community Services [2016] NSWCATAD 46
Hearing dates:22 October 2015
Date of orders: 08 March 2016
Decision date: 08 March 2016
Jurisdiction:Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:

(1) The decision of the respondent is set aside.

(2) In addition to any material already released to the applicant by the respondent, the respondent is to release the material identified at paragraphs 28 and 29 of these reasons.

 (3) In addition to any material already released to the applicant by the respondent, the respondent is to release the material identified at paragraphs 38 to 50 (inclusive) of these reasons.
Catchwords: GIPA Act – Government Information – Access – Ability of Tribunal to enquire – Section 29 Certificate CARE Act – Whether respondent has discharged onus in respect of schedule 1 GIPA Act – Care proceedings.
Legislation Cited: Administrative Decisions Review Act 1997
Children and Young Persons (Care and Protection) Act 1998
Government Information (Public Access) Act 2009
Cases Cited: Dewhirst v Department of Family and Community Services [2015] NSWCATAD 20
The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251
Adams v Department of Family and Community Services 2015 NSWCATAD Unreported 22 October 2015.
Director General Department of Family and Community Services v FEW [2013] NSWSC 1448
Category:Principal judgment
Parties: D Adams (Applicant)
Department of Family and Community Services (Respondent)
Representation: Solicitors:
CBD Law (Applicant)
Ellis McLachlan Solicitors (Respondent)
File Number(s):1510195

Reasons for decision

  1. On 8 April 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents concerning the applicant. These documents were held by the respondent agency.

  2. That application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of 18 specific volumes of records as well as four volumes of different records and a final volume of material. These ‘volumes’ had been particularised and sought through seven separate GIPA Act applications for access all dated 5 November 2014 and sent by the applicant’s legal representatives to the respondent.

  3. As at 8 April 2015 (the date of filing with the Tribunal), no decision had been made by the respondent in respect of the applications and no reasons for the delay had been provided. The applicant brought the application to the Tribunal as a reviewable decision under section 80 (c) of the GIPA Act in that pursuant to section 63 the agency had made a ‘deemed’ refusal in that the application had not been decided within time.

  4. Section 63 of the GIPA Act provides:

63 Deemed refusal if application not decided within time

(1) If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded.

Note. A deemed decision to refuse to deal with an application is reviewable under Part 5.

  1. Section 80 (c ) of the GIPA Act provides:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

…….

…….

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

  1. The matter was listed before me for planning meetings on four occasions from May 2015 to August 2015. The basis of these meetings was to facilitate the completion of the assessment process by the respondent agency, and to where possible expedite the release of non-contentious material to the applicant’s legal advisers. Parallel to those matters, material was being separately sought through a subpoena in connection with separate legal proceedings before a Court.

  2. The respondent advised the Tribunal that they had not completed the determination of the applications (and therefore not made a decision) due to the significant volume of material identified as falling within scope. There was also some indication that the issue of access to the documents might settle as the respondent agency continued to address the release of material in connection with the court process / subpoena request. In any event the applicant continued to press the GIPA Act request.

  3. By the time that the matter came on for hearing in late October 2015, the respondent had disclosed / released the files which were subject to the application but had redacted approximately 14% of the material. It is this material which was addressed at the hearing. The total material identified was in excess of many thousands of folios. The material was withheld from the applicant on two grounds. The major ground was that material was prohibited from release due to the fact that the respondent relied on a Certificate issued under section 29 (1A) of the Children and Young Persons (Care and Protection) Act 1998. (the Care Act). A related issue is that matters captured under section 29 of the Care Act are covered by Schedule 1 of the GIPA Act. Schedule 1 covers material for which there is a conclusive presumption of an overriding public interest against disclosure. The Schedule relevantly provides that:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

10 Care and protection of children

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.

  1. The other ground related to matters for which the respondent relied on the provisions of the Table to section 14 of the GIPA Act, as giving significant weight to override the general public interest consideration in favour of disclosure. These matters concerned applying significant weight to matters such as the personal information of third parties, and contravening an information protection principle.

  2. The first part of the hearing dealt with the section 29 certificate which relates to conclusively presumed overriding public interest against disclosure material (Sch 1) and then the hearing addressed the matters concerning the weighting and the application of the public interest considerations against disclosure, (section 14).

The Hearing

  1. At the outset the Tribunal was advised that a certificate under section 29 of the Care Act had been issued by the Delegate of the Secretary of the respondent agency on 15 October 2015. That date being one week prior to the hearing.

Open Hearing on Sch1 Cl 10 considerations concerning the s 29 Care Certificate

  1. The applicant submitted that the Tribunal must inquire into the Certificate in order to satisfy itself as to whether it had been properly issued. That is, did the contents of the documents (on examination and assessment) meet the elements of section 29 of the Care Act. Section 29 provides:

29 Protection of persons who make reports or provide certain information

(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

(a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and

(b) no liability for defamation is incurred because of the report, and

(c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and

(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):

(i) care proceedings in the Children’s Court,

(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,

(iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,

(iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013,

(v) proceedings under the Coroners Act 2009, and

(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:

(i) the consent of the person who made the report, or

(ii) the leave of a court or other body before which proceedings relating to the report are conducted,

and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

(1A) A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

  1. The Certificate was made under section 29 (1A), and sought to identify and withhold material said to constitute reports to which section 29 (1) applies. The Certificate nominated two suites of documents, Bundles ‘A’ which were partially withheld under the Certificate, and Bundles “B” which were fully withheld.

  2. In submissions the applicant noted that he had accessed his Departmental care file under section 168 of the Care Act, as he had attained 18 years of age and left care at that time. The section provides:

168 Access to personal information

(1) On leaving, or after having left, out-of-home care, a person is entitled to have access, free of charge, to personal information relating directly to the person in any records kept by:

(a) the designated agency that had supervisory responsibility for the person, or

(b) his or her authorised carer, or

(c) the Secretary, if the person was under the parental responsibility of the Minister and the Department was not the designated agency that had supervisory responsibility for the person.

(1A) In this section, a reference to records kept by a designated agency includes a reference to records formerly kept by the agency and delivered to the Secretary as referred to in section 170 (2A).

(2) The designated agency is to provide an appropriate person to support and assist the person seeking access to information at the time when access to the information occurs.

(3) Information under this section is to be provided orally or in writing, as the person concerned elects.

  1. The applicant submitted that the Tribunal could and should inquire into the material to which the respondent had applied the section 29 Certificate. The respondent opposed this position.

  2. The parties took the Tribunal to two differing cases in respect of section 29 Certificates. The case of Dewhirst (Dewhirst v Department of Family and Community Services [2015] NSWCATAD 20) was submitted by the respondent as authority for the proposition that the Tribunal could not examine or otherwise look into the contents of the documents in these proceedings to ascertain whether they met the criteria of the Certificate.

  3. The applicant submitted that the case of The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 provided authority for the Tribunal examining the basis of reliance on the Certificate. The respondent submitted that section 29 was read down by the Court of Criminal Appeal in the context of ensuring a fair trial. The current proceedings are civil and administrative in nature and the necessity to afford rights to parties and witnesses in such proceedings, whilst an obligation, it is not of the same importance or weight as it is in criminal proceedings.

  4. The respondent submitted that the Care Act did not seek to irrevocably set aside the requirement for a fair trial. The issue of public immunity and the need to protect the details of a reporter were paramount.

  5. The applicant submitted that there was not a basis that criminal and civil law should be interpreted differently. In the CCA Case, the Court found that the section is concerned with protecting the identity of the author of the reports, rather than the reports themselves.

  6. It was submitted that in respect of section 29 (1A) of the Care Act, the Tribunal has the ability to look behind the certificate. Any other interpretation would be contrary to the objects of the GIPA Act.

  7. It was submitted by the applicant that this position was consistent with the provisions of the Administrative Decisions Review Act 1997 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.

  1. At hearing the Tribunal delivered an Ex-Tempore decision on the issue of the section 29 certificate. (Adams v Department of Family and Community Services 2015 NSWCATAD Unreported 22 October 2015). The written reasons made available to the parties include the following:

Exhibit R1 was tendered today and that constitutes the certificate with an attached schedule. Schedule A is material which has been partially captured by the certificate and redacted in respect of where the certificate is invoked, and schedule B constitutes material which is wholly withheld or redacted by the invocation of the certificate issued by the delegate of the secretary.

In short, the respondent submits that the Tribunal, in the absence of any evidence to the contrary, must consider the certificate as a binding instrument on the face of the document, and for that reason no enquiry or examination of the material covered by that certificate is necessary in these proceedings. The applicant submits that it is necessary for the Tribunal to identify the nature of the material covered by that certificate and to some extent to have regard to the principles enunciated by the Court of Criminal Appeal in an application by the Attorney General of New South Wales dated 4 April 2014, the citation being The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251. That application considered discovery of material for which there was claimed to be a legitimate forensic purpose in the context of a criminal trial. The criminal trial as I understand it related to matters involving a child and a vulnerable person, and assaults and matters of that nature. There was no argument in those proceedings that the scope of the material there would be a legitimate forensic purpose.

However, in the proceedings below there was a concern that the certificate overrode the provisions of discovery, matters in criminal procedure and other legislation relating to the conduct of proceedings. In addition, the statute law overrode any common law cases that gave rights to that applicant accused in those proceedings.

The court determined in short that the section of the Care Act was about protecting the identity of reporters and not the reports themselves, and because of the substantial rights to which an accused in criminal proceedings should be subject to and should be afforded, then to the extent necessary the court said that the court below is able to go behind the certificate and examine what material, if any, can be released.

These proceedings are an administrative application for administrative review of a decision of whether to release information under the Government Information (Public Access) Act, the GIPA Act. It too is a rights regime, but the rights arise with certain qualifications. Those qualifications are set out in the Act notwithstanding their contradictory drafting to the general objects of the Act. In that regard I refer to schedule 1 of the GIPA Act which refers to material for which there is a conclusive presumption against disclosure. In addition there is a suite of exemptions or considerations in the table to s 14 which can be considered and weighted to determine whether the onus in favour of disclosure should in a particular case be, in effect, reversed.

In the case of Dewhurst v Department of Family and Community Services 2015 NSWCATAD 13, that case in part dealt with the issue currently before the Tribunal. The substantive matter was a GIPA application in that application reliance was placed on the certificate under s 29 of the Care Act. At paragraph 34 of that decision, Principal Member Higgins said the following:

“As pointed out in the respondent’s submissions, the legislative intent of s 29 of the Care Act is to encourage the making of open and frank reports about children and young persons that are reasonably suspected of being at risk of significant harm. As I have noted above, the Care Act makes provision for the respondent to receive such reports, assess and investigate them, and to take protective measures if necessary. Receipts of reports of this nature are clearly an essential aspect of the respondent being able to fulfil its protective duties and functions prescribed in the Care Act and other community services legislation.”

At paragraph 35 the Principal Member continues:

“In my view, in determining the matter in issue, the starting point is the proper construction of cl 10 of schedule 1 of the GIPA Act and not s 29 of the Care Act. In construing cl 10 and how it is to be applied, regard must also be had to the objects of the GIPA Act and how they are to be administered. As I have noted, the objects of the Act include giving members of the public an enforceable right to access government information, unless there is an overriding public interest against disclosure (see ss 3 and 13 of the GIPA Act). This is often referred to as the competing public interest test which only applies if the information for which access is sought falls within one or more of the categories that govern information described in s 14 of the GIPA Act.”

Moving on to paragraph 41,

“As I have noted, the tribunal’s task under the GIPA Act is to determine whether the disclosure of the information sought to be protected, by reason of this conclusive presumption against disclosure, can be characterised as information contained in the report to which s 29 of the Care Act applies. The onus in satisfying the tribunal of fact rests on the respondent and it can do so in a number of ways. For example, by placing evidence before the tribunal of the systems it has in place for collecting and retaining information for client in issue, and evidence that the information in issue was collected and continues to be retained by the agency as being a report to which s 29 of the Care Act applies. Whether such evidence is sufficient to discharge the respondent’s onus will depend on the circumstances of each case.”

Paragraph 42,

“In this regard, in my view it is also open to the respondent to rely on a certificate issued under s 29(1A) of the Care Act. Again, whether such a certificate is sufficient to discharge the respondent’s onus will depend on the circumstances of each case.”

Paragraph 43,

“In this application I am satisfied the respondent has discharged its onus in that the information in issue falls within the characteristics of information contained in the report to which s 29 of the Care Act applies. I have made this finding on the basis of the evidence of Mr MacFarlane, the subsection 29(1A), certificate signed by Mr Best, and the submissions made, in confidence, by Ms Harley, on behalf of the respondent.”

I note that in these proceedings schedule 1 of the GIPA Act cl 10 has not been invoked, or at least not invoked by way of submissions during the hearing. On the basis of the decision of Principal Member Higgins in the matter of Dewhurst and the fact that matters pertaining to a certificate under s 29 of the Care Act are referred to in schedule 1 of the GIPA Act, I determine that it is a matter for the Tribunal to examine the material for which the certificate has been issued to determine whether there is conclusive presumption against disclosure as set out in schedule 1 of the GIPA Act. In addition, I note the provisions of s 63 of the Administrative Decisions Review Act 1997 as to how the Tribunal may conduct its inquiry, inform itself as it sees fit , in order to make the correct and preferable decision. In making this finding I add, whilst it does not relate to the GIPA Act, that any such examination of that material must occur in a confidential context as envisaged by s 107 of the GIPA Act.

(Emphasis added)

  1. As a result of that decision, the parties agreed that the correct approach would be for the Tribunal to determine the material covered by the section 29 Certificate on the papers. The rest of the hearing concerning the weighting and the application of the public interest considerations against disclosure, (as per section 14 of the GIPA Act), occurred with the parties albeit a significant portion only involving the respondent in accordance with section 107 of the GIPA Act.

Closed Hearing on section 1 4 considerations.

  1. The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act. The applicant objected to a closed hearing and sought to have their solicitor present with an undertaking. In accordance with the provisions of the section I declined that application.

  2. The section provides that:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

  1. The Tribunal dealt with the material in the Confidential Exhibit “RC 1” tendered in these proceedings. It was necessary to work through that exhibit in conjunction with the affidavit of Mr T Meader affirmed 9 October 2015 and filed in the open evidence of the respondent as “R-2”.Whilst this assessment occurred in the confidential session with the respondent’s Solicitor, I do not believe that it is necessary to provide separate confidential reasons. The basis being that the section 107 hearing, effectively agreed which evidence was out of scope (as it was misfiled and not in any way related to the applicant or his care), and in respect of the documents sought to be withheld on section 14 grounds, the Tribunal worked through all of the material and where appropriate made a brief ruling on each item to be released.

  2. On that basis, and as the applicant has not previously had access to those rulings, I will outline each item of data to be released from RC 1, or that which in my view falls outside the scope of the application. I do note that the parties were given a summary of what could be released and on what basis it might be released at the recommencement of the open hearing. Upon its release that specific material is adjudicated to no longer be confidential.

  3. Folio 353 and 354 from D Adams file Vol 17 concerning an e-mail from ‘LM’. The e-mail is to be released but with the following information redacted.

  • The subject line, all references to the name of the person of interest (to Police) as referred to in the e-mail – the subject, in addition to paragraph 3 of the body of the e-mail (commencing with the word: ‘Police’ and ending with the words ‘go’.)

  1. Folios 155-146 from D Adams File Vol 27. This information relates to the applicant’s wellbeing (even though it does not constitute a report under section 29), and includes third party information that was relevant to the applicant’s well-being at the time. Having considered section 248 of the Care Act, the document can be released under the GIPA Act having regard to the provision of section 55 of that Act.

Consideration

  1. All other documents contained within RC 1 are outside the scope of the application, in that whilst they may have been mistakenly filed by the respondent in the applicant’s numerous files, they do not relate to him in any manner which is evident of the face of the documents. However it is open to the respondent to release any material outside of Schedule 1 which they think may be relevant and have not otherwise sought to restrict access, or the release would be contrary to law.

  2. The material at paragraphs 28 and 29 (above) is released on the basis that minimal weight attaches to the grounds relied upon under section 14 of the GIPA Act, in so far as the claimed public interest considerations against disclosure do not outweigh the general public interest in favour of disclosure as set out in section 12.

  3. I note that no substantial evidence was advanced by the respondent as to what weight should attach to those matters. Rather written submissions were made which go in some way to explain the respondent’s position. However the evidence of the witness in “RC 1” (and the open evidence of T Meader affirmed 9 October 2015), asserts that the redacted material:

would be (or is) considered to have an overriding public interest against disclosure in accordance with section 14 table, paragraph 3 (a) or 3 (g) which refers to third party personal information.

(Paragraph 11 affidavit)

  1. I find that this evidence is in no way compelling, and appears to omit the requirement to attach weight to any consideration against release when balancing the material against the general public interest in favour of disclosure. In that regard I find that the relevant part of the affidavit does not provide evidence but an assertion.

The Section 29 material

  1. In accordance with my decision in Adams v Department of Family and Community Services 2015 NSWCATAD Unreported 22 October 2015 I have gone through all of the material which was provided in respect of the section 29 (1A) Certificate.

  2. Having examined that material, it is clear the vast majority of the material could properly be considered as material which concerns reports referred to under that section, and the redacted material concerns material relating to the reporter either directly or indirectly. A large amount of the material would be captured on the basis that the nature of the report, the location, time, date context, would fulfil the criteria for a third party with some knowledge of the facts and circumstances, constructively identifying the reporter.

  3. I note that there is a tension between the GIPA Act and the Care Act, in that in a separate form, much of the material would constitute personal information of the applicant, and provide a strong basis for disclosure.

  4. However, Clause 10 of Schedule 1 of the GIPA Act is in my view clear in the approach to be taken once a positive determination as to the nature of the material sought to be covered under such a Certificate has been made.

The following information is to be released as it is not covered by the provisions of the section 29 certificate from the Schedule A Documents.

Volume 14

  1. Cover sheet index to be released less line 4 page 1, lines 1 and 7 page 2, lines 8,10 and 15 page 3, lines 4 and 10 page 4, lines 4, 13 and 20 page 5.

Volume 15

  1. Cover sheet index to be released less lines 4, 10 and 14 page 1, lines 4, 11 and 20 page 2, lines 4, 7, 8, 15 and 16 page 3, line 6 page 4.

Volume 16

  1. Cover sheet index to be released less line 20 page 1, line 13 page 2, lines 1, 2 and 3 page 3.

Volume 18

  1. Cover sheet index to be released less lines 5, 6, 7 and 19 page 1, all of page 2.

Volume 19

  1. Cover sheet index to be released less lines 3 and 9 page 1, line 1 page 2.

Volume 21

  1. Cover sheet index to be released less line 2 page 1.

Volume 23

  1. Cover sheet index to be released less lines 1,4,5,10,11,12,13 and 16 page 1, line 2 page 2.

Volume 24

  1. Cover sheet index to be released less lines 9,10,11,13,14,15 and 17 page , lines 2,3,6,10,13,14,15 and 16 page 2.

Volume 25

  1. Cover sheet index to be released less line 1 page 1, lines 2,3,7,11,15 and 20 page 2, line 17 page 3.

Volume 27

  1. Release entire page 1 / coversheet.

Volume 28

  1. Cover sheet index to be released less line 16.

The following information is to be released from the Schedule B Documents.

Volume 23

  1. Folio 145 (Notice of Continuance of Bail).

Volume 24

  1. Folio 273 (but redacting the name referred to as PR 2 immediately above the start of the narrative).

Conclusion

  1. Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral proceedings), in my view the correct and preferable decision is to set aside the decision of the respondent.

Orders

  1. In addition to any material already released to the applicant by the respondent, the respondent is to release the material identified at paragraphs 28 and 29 of these reasons in the manner referred to.

  2. In addition to any material already released to the applicant by the respondent, the respondent is to release the material identified at paragraphs 38 to 50 (inclusive) of these reasons in the manner referred to.

**********

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

Decision last updated: 08 March 2016

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