CCB v Department of Education and Communities

[2015] NSWCATAD 145

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CCB v Department of Education and Communities [2015] NSWCATAD 145

Hearing dates:

On the papers

Decision date:

13 July 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Lucy, Senior Member

Decision:

1. The respondent’s decision of 12 March 2014 that the information in the principal’s diary, which the respondent later provided to the applicant by letter of 8 December 2014, is not relevant to the application is set aside and, in substitution for that decision, it is decided to provide the applicant with access to that information.

 

2. The respondent’s decision of 12 March 2014 to refuse to provide access to two lines of information in the principal’s diary on the ground of legal professional privilege is set aside and, in substitution for that decision, it is decided to provide the applicant with access to that information.

 

3. The respondent’s decision of 12 March 2014 to refuse to provide access to the remaining information in the principal’s diary which was not provided to the applicant is affirmed.

 

4. The respondent’s decision of 12 March 2014 that it does not hold a school incident report is affirmed.

 

5. The respondent’s decision of 12 March 2014 to provide access to information, as specified in that decision, is affirmed.

 6. The respondent’s decision of 12 March 2014 to refuse access to information contained in notifications of injury to the Work Health and Safety Directorate by way of a Work Health and Safety incident report, made by the support teacher, is affirmed.

Catchwords:

Non-publication order – Whether desirable to make order in circumstances where child’s identity would otherwise be revealed in connection with an allegation of violence
Government information – Identity of applicant when application claimed to be made on behalf of nine year old boy – Application to respondent for access to information not expressed to be made on behalf of child - Whether child has capacity – Whether child is person aggrieved
Government information – Scope of application – Whether scope of application determined by scope of application to agency or by internal review application – Whether applicant applied to review the implicit decision made by the agency that it did not hold any information sought, other than that contained in the documents it identified in its decision
Government information – Client legal privilege – In-house government lawyer – No evidence of lawyer’s independence – Whether evidence of independence necessary to successfully claim privilege – Whether respondent has established that advice provided was legal advice
Government information – Personal information – Whether request for de-identified information changes character of personal information – Whether information has been publicly revealed – Whether disclosure could reasonably be expected to breach information protection principle or health privacy principle

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Beer v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 23
Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222
Applicants v Commissioner of Police [2015] NSWCATAD 22
Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1
Secretary, Department of Health & Community Services v JWB (“Marion’s case”) (1992) 175 CLR 218
BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20
AOP v Ngunya Jarjum Child and Family Network Inc [2013] NSWADT 263
WH v Internal Audit Bureau of NSW [2011] NSWADT 237
WW v Department of Education and Training [2011] NSWADT 300
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Starr v Superannuation Administration Corporation [2015] NSWCATAD 76
Law v Wollondilly Shire Council [2013] NSWADT 203
WL v La Trobe University (2005) 24 VAR 23; [2005] VCAT 2592
WL v Randwick City Council [2007] NSWADTAP 58
Office of Finance and Services v APV [2014] NSWCATAP 88
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Waterford v Commonwealth (1987) 163 CLR 54
Commonwealth v Vance (2006) 158 ACTR 47
Banksia Mortgages Ltd v Croker [2010] NSWSC 535,
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Re Philip Morris Limited and Prime Minister [2011] AATA 556
Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10
Vance v McCormack (2004) 154 ACTR 12

Category:

Principal judgment

Parties:

CCB (Applicant)
Department of Education and Communities (Respondent)

Representation:

Solicitors:
CCB (Applicant in person)
Legal Services Directorate (Respondent)

File Number(s):

1410656

Publication restriction:

The publication of the names of the following persons is prohibited: the applicant; her son; the support teacher at the son’s school in February 2014 who is referred to in these reasons; and the person who was the principal at the son’s school in February 2014.

REASONS FOR DECISION

1. These proceedings concern an application made under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) for information relating to incidents which happened at an eight year old boy’s primary school in February 2014. The application was expressed to be made by the boy’s mother (who I will refer to in these reasons as “the mother”) on behalf of her son (who I will refer to in these reasons as “the son”).

2. The respondent claims that the son injured a staff member (“the support teacher”) in both of the incidents. According to information provided by the mother, the support teacher had been supporting the son for nearly two years and for much of that time he had been the sole student in her care.

3. An incident occurred involving the son and the support teacher on 3 February 2014. On 4 February 2014, the support teacher made a notification of injury to the Work Health and Safety Directorate by way of a Work Health and Safety incident report form (“WH&S incident form”).

4. On 5 February 2014, the school principal wrote to the son’s parents about that incident. On the same day, another incident occurred involving the son and the support teacher.

5. On 6 February 2014, the support teacher completed another WH&S incident form.

6. On 12 February 2014, the school principal became aware of the incident of 5 February 2014, after she received a copy of the WH&S incident form completed by the support teacher. Notes were made in the principal’s school diary and entries were made in reference to the son in the school’s student behaviour register.

7. On 13 February 2014, the school principal wrote to the son’s parents informing them that the son had been “aggressive towards” the support teacher (who was named by the principal) on 5 February by striking her in the face with pieces of paper and with his pencil case, while she was supporting him in class. The principal said that disciplinary action had been taken.

8. On 14 February 2014, the mother applied to the respondent for access to the following information:

“1. School incident report related to [the son] and alleged incidents of 3/2/14 and 5/2/14 (should be provided routinely)

2. Any supporting documents.

3. WorkCover incident reports for these incidents (de-identify all documents please)

4. WorkCover claim details and de-identified correspondence

5. Any school action documented as a result of incidents re [the applicant’s son].”

9. On 7 March 2014, the respondent consulted with the support teacher about the release of the WH&S incident forms. The support teacher objected to the release of her personal information.

10. On 12 March 2014, the respondent decided to grant the mother access, in part, to the information she sought. It gave her access to information from a school diary, with some redactions where it claimed information was not relevant to the mother’s application. It refused to provide her with access to the two WH&S incident forms completed by the support teacher on the basis that they contained the support teacher’s personal information. The respondent informed the applicant that her son’s identity was not revealed anywhere in those documents.

11. The respondent’s Notice of Decision stated that the school did not hold any incident reports because, where there was no injury to the student, it is not school policy to create an incident report. Instead, the notice stated, information was stored in a student behaviour register and a diary, and communicated to parents or carers via a letter.

12. The applicant applied to the Information Commissioner for a review of the respondent’s decision. On 31 October 2014, the Information Commissioner completed the review and made recommendations to the respondent, including that some information which was deleted in the documents provided to the applicant should be considered for release.

13. On 24 November 2014, the mother applied to the Tribunal for review of the respondent’s decision, stating in the application that she was applying on behalf of her son. She indicated in her application that she was seeking review of a deemed refusal decision by the respondent.

14. On 8 December 2014, the respondent purported to make a new decision by way of internal review, being to vary its original decision by providing further information on the pages of the principal’s diary already provided to the applicant. (That is, information which was previously redacted in the diary was disclosed to the mother).

THE GIPA ACT

15. The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).

16. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).

17. 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 (GIPA Act, s 9(1)).

18. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).

19. 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 to the GIPA Act (GIPA Act, s 14(1)). This includes information subject to legal professional privilege or client legal privilege (GIPA Act, Sch 1, cl 5):

“5   Legal professional privilege

(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.”

20. The public interest considerations listed in the table to s 14 are the only considerations, where Schedule 1 does not apply, that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)).

21. The respondent relies on the following public interest considerations against disclosure in the table referred to in s 14(2):

"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.”

22. Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section 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."

23. The GIPA Act also provides that "personal factors" of the application may be taken into account in some circumstances. Section 55 relevantly provides:

"55 Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

the applicant's identity and relationship with any other person,

the applicant's motives for making the access application,

any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14."

24. Section 74 of the GIPA Act provides that an agency may delete information from a copy of a record to which access is to be provided in response to an access application where the deleted information is not relevant to the information applied for or where the agency has decided to refuse to provide access to that information.

25. In proceedings to review a decision made under the GIPA Act, the burden of establishing that the decision is justified lies on the agency (with some exceptions which do not apply in this case): GIPA Act, s 105(1).

26. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

WHO IS THE APPLICANT?

27. In her application to this Tribunal, the mother stated that the application was made by her “on behalf of” the son. She also signed her submissions with her name “on behalf of” the son and referred to the son, in her submissions, as “the applicant.” At times, the submissions refer to “the applicants” by which the mother presumably meant herself and her son and the submissons frequently use the pronoun “we,” again, presumably, in reference to both the mother and the son.

28. It is important to clarify whether the applicant is the mother or the son or whether both are applicants.

29. The mother’s application to the respondent for access to information did not state that she was applying for that information on behalf of the son. Under the heading “applicant details,” the mother provided her own name and contact details. She also ticked a box indicating she was seeking her own personal information (providing her date of birth) and ticked another box stating that she was seeking personal information about her child. There is nothing in the application to suggest that the mother is making the application on behalf of her son.

30. The mother’s application to the Information Commissioner does not state that it is made on behalf of the son.

31. The right to apply to this Tribunal depends upon being a “person aggrieved” by a reviewable decision of an agency. The mother is a “person aggrieved” because her application for access to information was partially refused. Neither party has made any submissions as to whether the son is also a “person aggrieved.”

32. The son is now nine years old. At common law, a child may have legal capacity if the child has sufficient understanding, intelligence and maturity (Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1, McHugh J at 40 [102]; Gummow J at 56 [154]; Secretary, Department of Health & Community Services v JWB (“Marion’s case”) (1992) 175 CLR 218, Mason CJ, Dawson, Toohey and Gaudron JJ at 237; Deane J at 311 and McHugh J at 293). The question of whether the applicant’s son has capacity to bring these proceedings was not explored by either party and there is no evidence about it. However, it may be doubted that a child of nine years old would have such capacity.

33. The GIPA Act does not make explicit provision for a minor to make an application to the Tribunal or for another person to make an application on behalf of a minor. At common law, a parent may make decisions on behalf of a child who does not have capacity (Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1, McHugh J at 40 [102]; Gummow J at 56 [153]; Hayne J at 77 [226]; Callinan J at 86 [266]; Secretary, Department of Health & Community Services v JWB (“Marion’s case”) (1992) 175 CLR 218, Mason CJ, Dawson, Toohey and Gaudron JJ at 239). This may mean that, if the son does not have capacity, the mother is entitled to bring the proceedings on his behalf, subject to complying with any statutory requirements.

34. In some jurisdictions, there are rules providing that a person under a legal incapacity may not commence or carry on proceedings without a tutor: see, for example, Uniform Civil Procedure Rules 2005 (NSW), r 7.14. The Civil and Administrative Tribunal Act 2013 (NSW) is silent as to the making of applications by a person without capacity and as to the making of applications by a minor. That Act provides, however, that the Tribunal may appoint a person to act as guardian ad litem for a party (s 45(4)(a)). This is sometimes done where a party is a child (see, for example, BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20 and AOP v Ngunya Jarjum Child and Family Network Inc [2013] NSWADT 263).

35. No application has been made for leave for the son to be represented, as appears to be required by s 45 of the Civil and Administrative Tribunal Act in the circumstances, and the Tribunal has not appointed the mother to represent the son under s 45(4), or made an order appointing someone to act as guardian ad litem for the son under that provision. Further, as already noted, the Tribunal has not been asked to consider, and has not considered, whether the son is a “person aggrieved” by the respondent’s decision within s 100 of the GIPA Act.

27. In light of these considerations, and having regard to the circumstance that it was the mother who made the application to the respondent for information, I find the mother to be the applicant in these proceedings. As will appear later in these reasons, my determination of the application would be the same even if I considered the son to be the applicant.

APPLICATION FOR NON-PUBLICATION ORDER

37. The mother requested the Tribunal not to publish her name or her son’s name, because the son is a minor. I have treated the applicant’s request as an application for an order under s 64(1) of the Civil and Administrative Tribunal Act prohibiting the disclosure of those names.

38. The power in s 64(1) to limit the publication of identifying material relating to parties and witnesses where it is "desirable" to do so confers a broad discretion on the Tribunal. Nevertheless, the principle of open justice remains relevant. 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."

39. The Appeal Panel of the Administrative Decisions Tribunal summarised some of the relevant principles applicable to the making of non-publication orders under the legislation governing that tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. The principles identified as being relevant in that case were (at [81]):

“(a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) 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.”

40. Those principles are equally applicable under the Civil and Administrative Tribunal Act (see Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222 at [8]; Applicants v Commissioner of Police [2015] NSWCATAD 22 at [40]).

41. In the circumstances of this case, there are good grounds for making the non-publication order. The proceedings concern an application for information in circumstances involving the allegedly violent actions of a young child. There is no evidence that the child is aware of these proceedings, despite the mother purporting to bring them in his name. Further, these reasons do not deal with the question of whether the child was in fact violent, meaning that the allegation would be recorded without him having an opportunity effectively to deal with it. The publication of the child's name would mean that anyone searching for the child's name on the internet would be able to find out about the existence of the alleged incidents. This situation could continue indefinitely, as published decisions of New South Wales courts and tribunals currently remain on the internet indefinitely.

42. The legislature has recognised the need to protect the publication of children's names in other circumstances: see Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105; Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Whilst the presumption in favour of open justice is a strong one, the countervailing considerations make it desirable, in this case, to protect the son’s identity.

43. The publication of the mother's name and the name of the support teacher and school principal involved could also lead to the identification of the child. Accordingly, the Tribunal considers that a non-disclosure order should be made, on its own motion, in relation to the support teacher and principal.

44. For these reasons, I am satisfied that it is desirable to make an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act prohibiting the publication of the names of the mother, the son, the support teacher and the person who was the principal at the son’s school in February 2014.

WHAT IS THE DECISION UNDER REVIEW?

45. There was some dispute in the proceedings as to the identity of the decision under review. The respondent submitted that it was its decision of 8 December 2014, because this was the respondent’s most recent decision. The applicant maintained that, pursuant to s 86(5) of the GIPA Act, the respondent was deemed to have made its decision of 12 March 2014 again when it failed to complete an internal review within the statutory time frame.

46. The Information Commissioner completed her review on 31 October 2014 and recommended that the respondent reconsider its decision pursuant to s 93(1) of the GIPA Act. The respondent elected to reconsider its decision. This was to be by way of internal review, as the respondent had not yet conducted an internal review (GIPA Act, s 93(3)). The respondent was required to make its internal review decision and give notice to the applicant within 15 working days (GIPA Act, s 86(1)). As it did not do so, it was deemed to have made the original decision again (GIPA Act, s 86(5)).

47. The decision under review is thus the respondent’s decision of 12 March 2014.

48. The respondent could have applied to the Tribunal under s 108(1) of the GIPA Act for further time to decide the access application, but did not do so. In these circumstances, the Tribunal notes that further information has been provided to the applicant on 8 December 2014, and treats this as a concession that there is no overriding public interest against disclosure of that information.

SCOPE OF APPLICATION

49. The mother identified the grounds for her application by reference to documents attached to the application, including an email she wrote to the Information Commissioner, the Information Commissioner’s review findings, the original decision of the respondent with the mother’s handwritten notes on it and a letter to the Tribunal.

50. It is undesirable to identify the grounds of application by reference to documents prepared for other purposes, as this does not clearly identify the grounds on which the application is made. If the grounds are identified too widely, they become meaningless. I have mainly had regard to the mother’s letter to the Tribunal in determining the scope of her application.

51. The application clearly seeks review of the respondent’s decision not to provide access to certain information, which is a reviewable decision pursuant to s 80(d) of the GIPA Act. The main issue concerning the scope of the mother’s application is whether it raises the question of sufficiency of search generally, or whether it is only seeking review of the respondent’s decision that it does not hold information in a “school incident report.” If it is the former, the reviewable decision is the implicit decision that the respondent does not hold information other than the information that it has identified (GIPA Act, s 80(e)).

52. The applicant’s application to the Tribunal appears to seek review of the decision that the respondent does not hold an incident report, but otherwise does not challenge the respondent’s decision that it does not hold any other information. The only explicit decision about holding information, made by the respondent, was that it did not hold a school incident report. The mother’s email to the Information Commissioner, annexed to her application, takes issue with the respondent’s decision that it does not hold an incident report, but does not raise the issue of whether the respondent holds other information it has not identified. The letter to the Tribunal which accompanies the application focuses on the absence of an incident report, but does not otherwise raise sufficiency of search.

53. At a planning meeting, the parties agreed that the “incident report” referred to by the principal in her letter of 13 February 2014 is the WH&S incident form relating to the incident on 5 February 2014. The principal’s reference to an incident report in that letter prompted the mother to believe that there was an incident report or reports other than the WH&S incident forms. In her submissions of 30 April 2015, the mother refers to the WH&S incident forms as “incident reports” and it is clear that she understands them to be the same documents. However, she also makes clear in those submissions that she is challenging the adequacy of the respondent’s searches more generally.

54. It appears that the basis for the mother’s present contention that the respondent holds relevant information in documents it has not provided to her is the respondent’s provision of documents to her on 23 March 2015 in response to a different GIPA application. She says that these documents should have been provided to her in response to the application the subject of these proceedings. The respondent submits that the information in those documents falls outside the scope of the application.

55. The respondent’s position is that, apart from questioning whether it held a “school incident report,” the mother did not question the adequacy of searches undertaken in this review until other information was released to her. The respondent submitted that the scope of the Tribunal’s review is limited to the scope of the original application, or possibly the scope of the applicant’s internal review application, relying on decisions in privacy matters (WH v Internal Audit Bureau of NSW [2011] NSWADT 237 at [35] and WW v Department of Education and Training [2011] NSWADT 300 at [15]).

56. The scheme of the privacy legislation is different from that of the GIPA Act. Under the privacy legislation, the subject of the review by the Tribunal is “the conduct that was the subject of” an internal review application (Privacy and Personal Information Protection Act 1998 (NSW), s 55(1)). Under the GIPA Act, a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review (GIPA Act, s 100). It is not necessary to apply for internal review first. The subject of the review by the Tribunal is the reviewable decision or decisions the subject of the application.

57. On a fair reading of the applicant’s application, taking into account the annexures to it, she has applied for review of the reviewable decision that the respondent does not hold an incident report, and the reviewable decision not to provide her with certain information which the respondent acknowledges it does hold. The application is not, on its proper construction, an application to review the (implicit) decision that the respondent does not hold any other information within the scope of the applicant’s application. Accordingly, the Tribunal does not have power to review that decision in these proceedings.

MATTERS BEYOND THE TRIBUNAL’S JURISDICTION OR POWERS

58. The mother raised further issues in her submissions which the Tribunal does not have power to deal with in these proceedings. These included alleged breaches of the son’s privacy and alleged breaches of work health and safety legislation by the respondent. The Tribunal does not have jurisdiction to investigate such alleged breaches in an application brought under the GIPA Act.

59. The mother also pointed out that the respondent’s submissions referred to the support teacher as the “injured staff member,” described this as “new evidence” and asked the Tribunal to force the respondent to provide details of the support teacher’s alleged injuries. The description of the support teacher in submissions does not constitute evidence. No application for a summons has been made and, even if it had been, it would not be appropriate to allow these proceedings to be used to explore collateral issues. The focus of these proceedings is whether the respondent made the correct and preferable decision in response to the mother’s access application.

60. The mother also asked the Tribunal to provide her with various other remedies which are beyond the Tribunal’s power to provide, such as damages and injunctive orders. The mother requested the Tribunal to find that there was a positive duty on the respondent to confer with her about her application, which she said had not been done. These requests reflect a misunderstanding of the Tribunal’s function in these proceedings, which is limited to reviewing the respondent’s decision.

WHETHER DELETED INFORMATION RELEVANT TO APPLICATION

61. As indicated earlier in these reasons, the respondent provided the mother with a redacted copy of entries in the principal’s school diary. In response to a recommendation from the Information Commissioner, it provided more information in the principal’s school diary to the mother after the mother had commenced these proceedings.

62. The respondent claimed that the remaining information which had been redacted from the principal’s diary was either legally privileged or not relevant to the application. It said it was entitled to redact this information under s 74 of the GIPA Act.

63. I have examined a copy of the unredacted diary entries, provided to the Tribunal in confidence, and I am satisfied that the information that the respondent has redacted, other than that subject to the claim of legal professional privilege, is not relevant to the application. Accordingly, it has been properly deleted under s 74 of the GIPA Act. I am also satisfied that the information provided to the applicant after these proceedings commenced is captured by her application and has properly been provided to her. I therefore set aside the respondent’s original decision that that information is not relevant and make a substitute decision to provide the applicant with access to that information. This gives formal recognition to what has already happened in fact.

CLIENT LEGAL PRIVILEGE

64. The respondent claims that information contained in two lines which have been redacted from the principal’s diary are subject to a conclusive presumption of an overriding public interest against disclosure because that information would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), within cl 5 of Sch 1 to the GIPA Act.

65. A claim under cl 5(1) of Sch 1 is to be assessed by applying the provisions concerning client legal privilege under the Evidence Act 1995 (NSW) and not the principles of legal professional privilege at common law (see, for example, Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [21] to [28]).

66. Section 118 of the Evidence Act provides:

“118   Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)  a confidential communication made between the client and a lawyer, or

(b)  a confidential communication made between 2 or more lawyers acting for the client, or

(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

67. The term “client” is defined to include “a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)” and an employer of a lawyer if the employer is a State (Evidence Act, s 117(1)).

68. The term “confidential communication” is defined in s 117(1) of the Evidence Act to mean:

“a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

69. The respondent submitted that the information was a confidential communication made between it and its lawyer for the dominant purpose of the lawyer providing legal advice to it. It said that it was the school principal’s note of a confidential communication of legal advice given by a principal legal officer of the department to the school principal. It also informed the Tribunal that it had decided not to waive privilege.

70. The respondent has not addressed the application of s 118 of the Evidence Act, or the definitions applying to that provision, in any detail in its submissions. Other than the information provided in its submissions, the respondent has not provided any evidence or other factual material to establish its claim of client legal privilege.

71. There is a question of whether the respondent needs to establish that the advice of the in-house lawyer was independent in order to succeed in its privilege claim.

72. At common law, legal professional privilege attaches to advice from an in-house lawyer only if it can be shown that the in-house lawyer is independent. There must be demonstrated a “professional relationship which secures to the advice an independent character notwithstanding the employment” (Waterford v Commonwealth (1987) 163 CLR 54, Mason and Wilson JJ at 62).

73. Section 118 of the Evidence Act does not, on its face, require a client to establish that the client’s lawyer was independent. There is no requirement to consider the lawyer’s independence when determining whether he or she is a “lawyer” or whether the recipient of the advice is his or her “client.” A government lawyer who is an “Australian lawyer” is a lawyer, and the lawyer’s employer (being the State) is a client, by operation of s 117 of the Evidence Act.

74. It is then necessary to consider whether all the elements of s 118 apply to an in-house government lawyer where there is no evidence of the lawyer’s independence. In Commonwealth v Vance (2006) 158 ACTR 47, Gray, Connolly and Tamberlin JJ commented in the context of considering the application of advice privilege under the Evidence Act 1995 (Cth) that, where a “lawyer is employed, real questions as to the nature of their role and duty may arise” (at [25]). Their Honours said at [24]:

“where client legal privilege is claimed over documents produced by an in-house lawyer, particularly when that in-house lawyer is employed in government service, the question is whether the document would meet the statutory test of being a confidential document, that is to say, was it prepared in such circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

75. Thus, without evidence of a government lawyer’s independence, it may not be possible to find that the document or communication was a “confidential document” or “confidential communication” within s 118 of the Evidence Act. It is also possible that, if it is not established that a lawyer has the requisite independence, the advice would not properly be described as “legal advice.” Other cases supporting the proposition that it is necessary to show that an in-house lawyer is independent include Banksia Mortgages Ltd v Croker [2010] NSWSC 535, Schmidt J at [19]-[26]; Rilstone v BP Australia Pty Ltd [2007] FCA 1557, Besanko J; Re Philip Morris Limited and Prime Minister [2011] AATA 556, Forgie DP esp at [98]-[100]; and Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 at [83].

76. There was no evidence in this case as to the independence of otherwise of the principal legal officer concerned. The respondent has an onus to establish that its decision not to provide access to the information over which it claims privilege is justified. It is not open to me to infer that the legal officer was independent without evidence to that effect (Vance v McCormack (2004) 154 ACTR 12, Crispin J at 25-26).

75. Without evidence as to the principal legal officer’s independence, or as to the confidentiality of the communication in question, I cannot be satisfied that the communication was made in such circumstances that, when it was made the principal legal officer “was under an express or implied obligation not to disclose its contents.” Nor can I be satisfied, in the absence of evidence, that the school principal was under such an obligation.

76. If I am wrong and the communication recorded in the principal’s diary was a confidential communication, the respondent has not persuaded me that it was made for the dominant purpose of providing legal advice to the client (being the State). Legal advice is a relatively broad concept: see Law v Wollondilly Shire Council [2013] NSWADT 203 at [83]. The respondent submitted that an inference should be drawn that the communication was made for the dominant purpose of providing legal advice. In my view, such an inference cannot properly be drawn from the words in question.

77. The respondent has not discharged its onus of establishing that the information would be privileged from production in legal proceedings on the ground of client legal privilege and that there is therefore a conclusive presumption of an overriding public interest against disclosure of it pursuant to s 14(1) of and cl 5(1) of Sch 1 to the GIPA Act.

78. Accordingly, I set aside its decision refusing access to that information and substitute a decision to provide access to the information.

DECISION SCHOOL INCIDENT REPORT NOT HELD

81. As indicated above, the respondent found that it did not hold the “school incident reports” requested by the applicant. As I understand it, the applicant now accepts that the principal’s reference to an incident report is a reference to a WH&S incident form, and also accepts that there are no additional incident reports.

82. The respondent submitted that it had made thorough searches in response to the original application and internal review decision and had discharged its obligation to undertake reasonable searches under s 53 of the GIPA Act.

83. I have reviewed a “search officer declaration” made by the principal which indicates that she spent approximately 3 hours searching for information within the scope of the application and otherwise considering it. I am satisfied, in light of the respondent’s explanation that the WH&S incident form is the incident report referred to in the principal’s letter, that the respondent has undertaken 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 (GIPA Act, s 53(2)).

84. Accordingly, I uphold the respondent’s decision that it does not hold any “school incident reports.” My affirmation of the respondent’s decision is to be understood in the context that it is using the term “school incident report” to refer to reports other than completed WH&S incident forms. This is clear in its original decision, as it acknowledges holding those forms.

CONSIDERATIONS IN FAVOUR OF DISCLOSURE

85. The remaining information in contention is that contained in the WH&S incident forms completed by the support teacher to which access has been refused in full by the respondent.

86. The respondent identified a number of considerations which favour disclosure of that information. These are as follows:

• The general public interest in favour of disclosure (GIPA Act, s 12(1));

• Disclosing the information may help the applicant to better understand the operations, policies and practices of the Department and why the school made a decision about her child (GIPA Act, s 12(2), example (b));

• The records relate to incidents involving the applicant’s child who is a student at the school (GIPA Act, s 55(2));

• The applicant seeks access to the records because she believes the information may better inform her about incidents involving her child (GIPA Act, s 55(2)).

87. I accept that these are all considerations in favour of disclosure of the information in the WH&S incident forms.

88. The mother submitted, on the assumption that the son was the applicant, that the information concerned the applicant and was his personal or health information. She said that, as the incidents occurred whilst the support teacher was supporting the son in class, documentation relating to his support program was by definition his personal and health information. Whilst I have found that it is the mother who is the applicant, it would be a strong consideration in favour of disclosure if the withheld information were the personal or health information of her eight or nine year old son. As his parent and guardian, she would have a direct interest in protecting that information.

89. As the respondent informed the mother, however, the son’s name does not appear in the WH&S incident forms. The forms do not contain his personal information merely because they were prompted by an incident concerning him or because they have an indirect connection with the son’s support program.

90. “Personal information” means, relevantly, “information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion” (GIPA Act, Sch 4, cl 4). Having examined the WH&S incident forms, I find that they do not contain any information or opinion about an individual (being the son) whose identity is apparent or can reasonably be ascertained from the information or opinion. Accordingly, they do not contain the son’s personal information.

CONSIDERATIONS AGAINST DISCLOSURE: PERSONAL FACTORS OF THE APPLICATION

91. The respondent relied upon s 55 of the GIPA Act in support of its decision to refuse access to the WH&S incident forms. It said that the applicant’s son is currently a student at the school and both the applicant and her son have an ongoing relationship with the support teacher. It submitted that to reveal personal information about the support teacher to the applicant, against the express objection of the support teacher, would likely have a negative impact on the working relationship between the applicant’s family and the support teacher, and this in turn would impact upon relationships of other school staff.

92. I may take the personal factors of the application into account as factors against providing access insofar as they are relevant to my consideration of whether the disclosure of the information concerned could reasonably be expected to have the effect of revealing an individual’s personal information or contravening an information protection principle or health privacy principle (GIPA Act, s 55(3), s 14, table, cl 3(a) and (b)).

93. There is no evidence that the applicant’s son is still a student at the school and during the course of the proceedings there was some suggestion to the contrary from the mother. In the absence of evidence, I am not prepared to take these factors into account as factors against providing access. Even if there were evidence establishing that the son is still a student at the school, I do not regard the s 55 factors against providing access, proposed by the respondent, as very persuasive. The mother’s evidence indicates that the mother has a good relationship with the support teacher and it is speculative to conclude that the disclosure of the WH&S incident reports would negatively impact upon that relationship or upon relationships of other school staff.

PERSONAL INFORMATION AND PRIVACY CONSIDERATIONS AGAINST DISCLOSURE

94. The respondent has refused the mother access to the WH&S incident forms on the basis that disclosure could reasonably be expected to reveal the support teacher’s personal information and that disclosure could reasonably be expected to contravene an information protection principle or health privacy principle.

95. Clauses 3(a) and (b) of the table to s 14 of the GIPA Act provide:

“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,…”

Personal information: cl 3(a)

96. The respondent submitted that all the information in the incident reports was the personal information of the support teacher. The mother submitted that there are portions of the WH&S incident reports which could be released, such as description of context and events, including the son, his conditions, action and support framework, responses and reactions, without releasing the personal information of other parties. The applicant pointed out that the respondent’s letters to the applicant’s parents of 5 and 13 February partially disclosed the information contained in the incident reports to the applicant’s parents. The applicant submitted that substantial sections of the incident reports could be released, “as surely not every line contains the personal and health information of [the support teacher], context, preceding events and descriptions of events are not the personal information of the [support teacher] and should be released – as a minimum.”

97. The WH&S incident reports identify the support teacher by name and were written by her. They contain her personal information because they contain “information or an opinion … about [the support teacher]” and her “identity is apparent … from the information or opinion” (GIPA Act, Sch 4, cl 4). I do not accept that certain parts of the report, written by her, do not contain her personal information. The information the support teacher chose to include on the form is information about her.

98. The mother requested de-identified reports. The character of the WH&S incident reports, as containing personal information, is not changed by de-identification when supplied to the applicant. Alternatively, the mother knows the identity of the support teacher, and knows that she was involved in the incidents, so that the support teacher’s identity could reasonably be ascertained from the de-identified information, with reference to the extraneous information. This means it would retain its character of “personal information” (see WL v La Trobe University (2005) 24 VAR 23; [2005] VCAT 2592; WL v Randwick City Council [2007] NSWADTAP 58 at [15]–[16]; Office of Finance and Services v APV [2014] NSWCATAP 88 at [49]–[50]).

99. The mother submitted, citing Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98, that considerations against disclosure in cl 3(a) and 3(b) of the table to s 14 of the GIPA Act are of no relevance when the information concerns the applicant. As indicated above, the information has a connection to the son, in that the WH&S notifications are both prompted by an incident involving the son, but it is not his personal information. Richards does not, in any event, support the proposition put by the mother. The circumstance that the information has a connection with the applicant’s son is a consideration in favour of its disclosure; however, that does not make public interest considerations against disclosure of the information irrelevant.

100. There is a question as to whether the information in question has been “publicly revealed” (in which case the personal information consideration against disclosure would not apply). The definition of “reveal information” is “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)” (GIPA Act, Sch 4, cl 1). Thus, if the information has been publicly disclosed already, further disclosure would not “reveal personal information” within cl 3(a).

101. The mother relied upon the Tribunal’s comment in Richards (at [40]) that “[t]he issue for consideration is not whether [a] document has been publicly disclosed, but whether the information [a document contains] has been publicly disclosed.” The mother said that she was aware of the identity of the support teacher who had made the WH&S notifications, because the school had informed her of this. She also said that the support teacher had approached her voluntarily to disclose details of the events and incident reports. She claims that the support teacher described one of the incidents to her, and she sets out in her submissions the words she claims the support teacher used.

102. The question of whether the support teacher discussed the incidents the subject of the WH&S notifications with the mother is not determinative of whether the information in those notifications has been publicly disclosed. A private communication between two people does not constitute a public disclosure. The respondent submitted that there was no evidence that the WH&S incident reports had been disclosed to any parties except Department officers as required by law. There is insufficient evidence to conclude there has been any public disclosure of the information contained in the WH&S incident forms and I find that there has not been.

103. Accordingly, I find that the disclosure of the WH&S incident forms could reasonably be expected to reveal the support teacher’s personal information.

Breach of information privacy or health privacy principle: cl 3(b)

104. It is also the case that disclosure of the WH&S incident forms could reasonably be expected to reveal the support teacher’s personal or health information and thus breach an information privacy principle or health privacy principle (or both). It was not disputed that those forms were completed by the support teacher and contain her information.

105. The respondent is prohibited from disclosing the support teacher’s health information for a purpose other than that for which it was collected unless certain exceptions apply (Health Records and Information Privacy Act 2002 (NSW), Sch 1, cl 11). The respondent is also prohibited from disclosing the support teacher’s personal information unless certain exceptions apply, including, relevantly, that 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 (Privacy and Personal Information Protection Act, s 18(1)(a)).

106. The respondent has a reason to believe that the individual concerned would object to the disclosure of her personal information, because the support teacher has made such an objection. Neither of the exceptions to the prohibition against disclosure in s 18(1)(b) or (c) of the Privacy and Personal Information Protection Act apply. Accordingly, disclosure of the WH&S incident forms would contravene an information protection principle under the Privacy and Personal Information Protection Act, being the principle in s 18.

107. In relation to the support teacher’s health information, the mother submitted that, reasonably construed, the support teacher authorises the disclosures to the applicant by “allowing use and disclosure of the incident reports as both the basis for serious allegations; complaints; and disciplinary action, but also as the basis of changing [the son’s] support framework.” It is not entirely clear what the mother meant by this, but it appears she was referring to the school principal’s use of the information in the WH&S incident forms to write to the son’s parents making allegations about the son and changes made to the son’s support framework following the incidents the subject of those notifications.

108. There is no evidence that the support teacher consents to or authorises the disclosure of her health information and the objection made pursuant to the GIPA Act indicates the opposite. Disclosure to the mother or to the son is not a purpose for which the information in the WH&S incident forms was recorded or related to such a purpose. The applicant’s submission that the principal’s letter to the parents, using those forms, means that the forms were prepared for “the purposes of disciplinary and punishment actions against the son,” is not persuasive.

109. In these circumstances, I am satisfied that disclosure of the WH&S notifications forms to the mother would breach a health privacy principle, being health privacy principle 11.

110. The respondent has discharged its onus of establishing that the disclosure of the WH&S notifications forms to the mother could reasonably be expected to contravene an information protection principle and a health privacy principle.

BALANCING CONSIDERATIONS FOR AND AGAINST DISCLOSURE

111. The process for balancing public interest considerations was discussed in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]. Higgins DP observed that in all cases other than those falling under Schedule 1 of the GIPA Act, the public interest test under s 13 of the GIPA Act involves:

1. identifying the public interest in favour of disclosure;

2. identifying the public interest against disclosure, and

3. determining where the balance lies.

112. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94], Molony JM noted that when weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests “is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.”

113. In this case, there is a strong public interest against disclosure of the information in the WH&S incident forms, in that those forms contain the support teacher’s personal information and to provide access to them could reasonably be expected to reveal her personal information and breach an information protection principle and a health privacy principle. The notification of a workplace injury involves particularly sensitive or private information, and I have given significant weight to this consideration as a result.

114. There are a number of public interest considerations in favour of disclosure, set out above, including that the WH&S incident reports were made following incidents involving the applicant’s son and, to that extent, concern him. Whilst provision of these reports to the mother may better inform her about her child and events at his school, she has already been provided with information about the February 2014 incidents and the school’s understanding of them. She thus has access to a reasonable amount of information about the incidents already. Her son is not named in the WH&S incident reports, they do not contain his personal information and they are not directly about him. These factors diminish the weight I give to the public interest considerations in favour of disclosure.

115. In my view, the public interest considerations against disclosure of the WH&S incident reports outweigh the public interest considerations in favour of disclosure. I would be of the same view if the applicant were the son and not the mother. There is thus an overriding public interest against disclosure of the information (GIPA Act, s 13).

116. For these reasons, I affirm the respondent’s decision to refuse access to the information contained in the WH&S incident reports.

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: 13 July 2015