CLT v Department of Education

[2021] NSWCATAD 249

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CLT v Department of Education [2021] NSWCATAD 249

Hearing dates:

On the papers

Date of orders:

20 August 2021

Decision date:

20 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Goodman SC, Senior Member

Decision:

(1) The decision of the respondent under s 58(1)(d) of the Government Information (Public Access) Act 2009 to refuse access to information because of an overriding public interest consideration against disclosure of the information is:

(a)   varied, by granting the applicant access to the following information within 28 days of the date of these Orders:

(i)   each of pages 14, 16, 28, 36, 78, 148, 152 and 158 in their entirety;

(ii) page 123, save to the extent it has been redacted in reliance upon s 74 of the Government Information (Public Access) Act 2009;

(iii)   page 245, save to the extent that the previously redacted portions contain names, telephone numbers or text redacted from the 18 October 2019, 1.12 pm email;

(iv)   pages 471 – 472, save to the extent that the previously redacted portions contain names or telephone numbers;

(v)   page 582, save to the extent that the previously redacted portions contain names;

(vi)   page 583, save to the extent that the previously redacted portions contain names, email addresses, telephone numbers, or text contained in the third redacted box;

(vii)   page 585, save to the extent that the previously redacted portions contain names (other than the applicant’s name);

(viii)   page 586, save to the extent that the previously redacted portions contain names, email addresses, telephone numbers, or text corresponding to that contained in the third redacted box on page 583;

(ix)   page 595, save to the extent that the previously redacted portions contain names or telephone numbers;

(x)   page 597, save to the extent that the previously redacted portion contains names or telephone numbers;

(b)   otherwise affirmed;

(2) The implied decision of the respondent under s 58(1)(b) of the Government Information (Public Access) Act 2009 that it does not hold any information responsive to the access application other than the 802 pages provided to the Tribunal (“Decision”) is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration;

(3) The respondent is to affirm the Decision, vary the Decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicant and the Tribunal, within 28 days of the date of these Orders;

(4)   The applicant is to inform the Tribunal and the respondent whether she wishes to proceed with the application for review of the Decision, or withdraw her application in respect of that decision, within 49 days of the date of these Orders;

(5)   If the applicant decides to proceed with her application for review, she is to request the Registry to relist the matter for directions when she informs the Tribunal of her decision in accordance with Order 4 above;

(6) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

(a)   The applicant is to be identified by the pseudonym “CLT”;

(b)   The identity of the applicant is not to be disclosed by the respondent or any other person and she is to be referred to as “CLT”.

Catchwords:

ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – review of decision that information not held by an agency

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Chetcuti v The University of Sydney [2020] NSWCATAD 164

Commissioner of Police v Danis [2017] NSWCATAP 7

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Jackson v University of New South Wales [2019] NSWCATAD 224

McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53

Meacham v Commissioner of Police [2020] NSWCATAP 107

Miskelly v Roads and Maritime Services [2019] NSWCATAD 133

Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254

Pearson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 113

Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127

Robinson v Department of Health [2002] NSWADT 222

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Transport for NSW v Searle [2018] NSWCATAP 93

Wojciechowska v Cmr of Police [2020] NSWCATAP 173

Texts Cited:

Nil

Category:

Principal judgment

Parties:

CLT (Applicant)
Department of Education (Respondent)

Representation:

Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

2020/00112820

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

(1) The applicant is to be identified by the pseudonym “CLT”;

(2) The identity of the applicant is not to be disclosed by the respondent or any other person and she is to be referred to as “CLT”;

(3) Disclosure or publication of the 802 pages provided by the respondent to the Tribunal on a confidential and unredacted basis is prohibited

REASONS FOR DECISION

Introduction

1. The applicant is a teacher in the employ of the respondent.

2. She has applied for an order that her name be anonymised. The respondent does not oppose that order. The Tribunal has considered her submissions as to why such an order should be made and is satisfied that such an order should be made.

3. In about October 2019 a decision was made within the respondent which had the effect of removing the applicant’s ability to use a motor vehicle which she had previously been able to use in performing her duties as a teacher.

4. On 21 January 2020, the applicant lodged an access application under s 41 of the Government Information (Public Access) Act 2009 (“GIPA Act”) with the respondent.

5. On 24 January 2020, the applicant amended her access application. The access application, as amended, sought access to various categories of information relating to her role and to vehicle usage.

6. On 18 March 2020, the respondent provided to the applicant a Notice of Late Decision (“18 March 2020 Decision”). The respondent identified 802 pages containing information potentially responsive to the access application and decided to:

1. provide access to some of the information sought;

2. refuse access to other information because of an overriding public interest against its disclosure based on:

1. a conclusive presumption of an overriding public interest consideration against disclosure because of legal professional privilege; or

2. the public interest considerations against disclosure outweighing those in favour of disclosure.

7. On 15 April 2020, the applicant lodged with the Tribunal an application for a review of the 18 March 2020 Decision.

8. Since the 18 March 2020 Decision:

1. the respondent has made further decisions, on 25 May 2020 (“25 May 2020 Decision”) and on 11 December 2020 (“11 December 2020 Decision”), following an order by the Tribunal that the respondent reconsider its decision, which have resulted in further documents being released to the applicant; and

2. the applicant has indicated that she does not press her application in so far as it captures personal details i.e. names, email addresses or telephone numbers that have been withheld by the respondent, each of which has narrowed the scope of the issues requiring determination.

Issues requiring resolution

9. The following issues require resolution:

1. whether the decision of the respondent to refuse access to some of the information sought is the correct and preferable decision; and

2. whether the respondent made a decision that it did not hold information and if so, whether that decision is the correct and preferable decision.

First issue: review of the decision to refuse access to information

Jurisdiction

10. The respondent’s decision to refuse to provide access to some of the information sought by the applicant in her access application (as amended) is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 and s 9 of the Administrative Decisions Review Act 1997 (“ADR Act”).

The Tribunal’s task

11. The Tribunal’s task, briefly stated, is to decide what the correct and preferable decision is as to whether access to the withheld information should be provided, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

Material before the Tribunal

12. The material before the Tribunal is:

1. the access application, as amended;

2. the decisions made by the respondent on 18 March 2020, 25 May 2020 and 11 December 2020;

3. the 802 pages containing the information potentially responsive to the access application in a form which shows the unredacted information and the redactions made;

4. written submissions on behalf of the respondent dated 25 May 2020 and 2 February 2021; and

5. extensive written submissions on behalf of the applicant dated 2 June 2020 and 4 April 2021.

13. The 802 pages containing the information potentially responsive to the access application was received by the Tribunal on a confidential basis.

14. Neither party filed affidavit evidence.

The applicable law

15. The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides:

3 Object of Act

(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

16. Section 9 (1) of the GIPA Act provides:

9   Access applications

(1)   A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

17. The respondent bears the onus of establishing that its decision is justified: s 105 GIPA Act. That means the respondent must, first, identify the information which it contends should be withheld from the applicant because the public interest considerations against disclosure of that information outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].

18. In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane in this proceeding:

5 Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

…

12 Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note: The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3)   The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

…

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

…

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

…

Table

1 Responsible and effective government

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 (whether in a particular case or generally):

…

(f)   prejudice the effective exercise by an agency of the agency’s functions,

…

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 Act1998

…

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.

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:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   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.

19. Schedule 1 of the GIPA Act contains as far as is presently relevant:

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.

(2)   If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

20. As the above provisions demonstrate, the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 of the GIPA Act), and the applicant has a legally enforceable right to the government information she seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 of the GIPA Act).

21. There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 of the GIPA Act).

22. The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) of the GIPA Act). However, absent a Sch 1 consideration against disclosure the Tribunal’s task is to consider and weigh in the balance:

1. the public interest considerations in favour of disclosure, which are unlimited and include:

1. the general public interest in favour of disclosure (s 12(1) of the GIPA Act);

2. the examples listed in the note to s 12(2) of the GIPA Act; and

2. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.

23. In undertaking this balancing task the Tribunal is entitled to take into account the “personal factors of the application” as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as:

1. the applicant’s identity and relationship with any other person;

2. the applicant’s motives for making the access application; and

3. any other factors particular to the applicant.

24. The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the withheld information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.

25. The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: see Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

Section 14(1) and cl 5 of Sch 1 – claim of a conclusive presumption based upon legal professional privilege

26. The respondent has withheld some information in reliance upon s 14 (1) and cl 5 of Sch 1 to the GIPA Act, which provide that there is a conclusive presumption of an overriding interest against disclosure of information subject to legal professional privilege, absent a waiver of that privilege.

27. The pages which contain information the subject of a claim for legal professional privilege, following the reconsideration undertaken by the respondent, are pages 473-498, 594, 596, 700 and 712-713.

28. The applicant does not press for the withheld information to the extent it relates to legal advice obtained externally from an independent lawyer, but does challenge claims to legal professional privilege arising from advice provided by the respondent’s in-house legal advisers. However, the information in the remaining pages identified above all relates to external and independent advice and does not relate to advice provided by the respondent’s in-house legal advisers.

29. Thus, none of the information the subject of the claim for legal professional privilege is information the disclosure of which is pressed by the applicant and it is unnecessary to consider this issue further.

Section 14(2) – claim that the public interest considerations against disclosure outweigh those in favour of disclosure

30. Other information has been withheld on the basis of a claim that the public interest considerations against disclosure outweigh those in favour of disclosure. Thus it is necessary to consider the public interest considerations for and against disclosure and balance them against each other.

Public interest considerations in favour of disclosure

31. The Tribunal has identified the following public interest considerations in favour of the disclosure of the withheld information:

1. the general public interest consideration in favour of the disclosure of government information: 12(1) of the GIPA Act;

2. to the extent that the withheld information is personal information of the applicant, that fact; and

3. that disclosure of the information could assist in understanding how the respondent deals with complaints made to it including, as the applicant has submitted, an understanding of the extent to which its processes follow correct procedures to ensure transparency, fairness, accuracy and procedural fairness.

32. As noted above, it is also appropriate to take into account the “personal factors of the application” as matters in favour of disclosure. Those matters are described in s 55 of the GIPA Act as: the applicant’s identity and relationship with any other person; the applicant’s motives for making the access application; and any other factors particular to the applicant.

33. The applicant has submitted that she has been the subject of bullying, victimisation, targeting, mobbing and reprisal, and that communications already released to her show a lack of respect toward her and that she has been treated with ridicule and in a partial manner. The Tribunal takes this submission into account as a personal factor of the application in favour of disclosure.

Public interest considerations against disclosure

Generally

34. As noted above, the public interest considerations against disclosure which arise for consideration in this proceeding are limited to those in the table in s 14 of the GIPA Act. The clauses in the table upon which the respondent relies are cll 1 (f) and 3 (a) and (b).

35. Each of cll 1(f) and 3(a) and (b) includes in its chapeau the phrase “… could reasonably be expected to have one or more of the following effects …”. The principles to be applied in considering whether disclosure of information “could reasonably be expected” to have a particular effect were summarised by an Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows:

“68. There was no dispute between the parties that:

…

(2)   The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] –

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act."

(3)   In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

(4)   It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

(5) “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6)   The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].”

36. Whether disclosure of particular information “could reasonably be expected to” have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].

37. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]:

“[54]   Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83]   Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

38. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]:

“Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.”

Clause 1(f) of the Table

39. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency’s functions.

40. The expression “reasonably be expected to have the effect” has been discussed above.

41. Clause 1(f) also uses the word “prejudicing”. “Prejudice” bears its ordinary meaning, that is, “to cause detriment or disadvantage” or “to impede or derogate from”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

Submissions

42. The respondent submitted that:

1. disclosure of the withheld information could reasonably be expected to prejudice the effective exercise of the respondent’s complaints handling function and in particular:

1. the respondent’s management of complaints;

2. communications between staff when dealing with complaints by inhibiting frank and honest communication, which would affect the day-to-day functioning of the respondent’s school services;

2. executive officers of the respondent need to be able to freely discuss discreetly and honestly how to best manage and resolve sensitive issues affecting the operations of the school; and

3. if records of discussions concerning students or parents were to be released in full, the respondent’s ability to perform its complaint handling functions would be compromised. In support of this submission, the respondent relies upon Robinson v Department of Health [2002] NSWADT 222 at [71], where Hennessy DP (as her Honour then was) held that the effective performance of an agency’s functions depended to a large extent on the cooperation of those who had relevant information, and that if information received confidentially were to be disclosed such disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of its functions.

43. The applicant disputes that the release of the withheld information could reasonably be expected to have any such effect.

Consideration

44. Any finding that disclosure could reasonably be expected to have a particular effect is one which must be made upon logically probative material, and a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient: see Transport for NSW v Searle; Newcastle City Council v Newcastle East Residents Action Group, Flack v Commissioner of Police, NSW Police Force and Meacham v Commissioner of Police, discussed above.

45. The respondent has not adduced any affidavit evidence in support of its submissions. Nor has it drawn the Tribunal’s attention to any documentary evidence in support thereof. Nevertheless, the Tribunal has considered the documents which are in evidence, but these do not establish that there is a reasonable expectation that disclosure of the withheld information could have the effect (whether in a particular case or generally) of prejudicing the effective exercise by the respondent of any of its functions.

46. The respondent relies upon the decision in Robinson. However that is of no assistance in circumstances where it related to another agency almost 20 years ago. Further, the finding at [71] of Robinson described above was a finding based upon evidence adduced before the Administrative Decisions Tribunal in that case: see Robinson at [8] – [10], [41] and [50].

47. For the above reasons, the Tribunal is not satisfied that the public interest consideration in cl 1(f) has been established.

Clauses 3 (a) and (b) of the Table

48. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing an individual’s personal information.

49. “Personal information” is defined in cl 4 of Sch 4 to GIPA Act in the following way:

4 Personal information

(1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

50. Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of contravening an information protection principle under the Privacy and Personal Information Protection Act1998 (NSW) (“PPIP Act”). One of those information protection principles is s 18 of the PPIP Act, which provides:

18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

51. The expression “personal information” is defined in s 4 of the PPIP Act in a manner similar but not identical to the manner in which it is defined in the GIPA Act.

Submissions

52. The respondent submitted that:

1. the withheld information contains personal information (mostly names and email addresses) and opinions of third parties;

2. whilst some of the information may be classified as the applicant’s personal information, in so far as it is information or an opinion about her, it is also the personal information of the particular third party because it is an expression of that person’s opinion’s and views. In this regard, the respondent relied upon Troskie v NSW Department of Education and Communities [2014] NSWCATAD 155 at [158] and Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 at [49];

3. the release of the withheld information would reasonably be expected to contravene an information protection principle because s 18 of the PPIP Act prohibits disclosure of personal information (other than to the person to whom it relates) except in certain circumstances, none of which apply in the present case. In particular:

1. the release of information under the GIPA Act is not a purpose directly related to the purpose for which the information was collected (s 18(1)(a) of the PPIP Act); and

2. there is no suggestion that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of anyone (s 18(1)(c) of the PPIP Act).

53. The applicant’s submissions may be summarised as follows:

1. she does not press her application in so far as it captures personal details i.e. names, email addresses or telephone numbers that have been withheld by the respondent; and

2. however, she does press for information which is her personal information.

54. The Tribunal has also had regard to Information Commissioner’s GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act.

Personal factors of the application against disclosure

55. Section 55(3) of the GIPA Act allows for consideration of the personal factors of the application as factors against providing access to information in certain circumstances, including whether cl 3 (a) or (b) is satisfied. However, the respondent has not suggested that it relies on any such factors.

The withheld information

56. Against the above background, the Tribunal turns to consider the information withheld on the basis of cll 1(f) and 3(a) and (b).

Page 14 of 802

57. This page contains one redaction, made in reliance upon cll 1(f) and 3(a) and (b). For the reasons set out above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) is made out.

58. As to cll 3(a) and (b), the redacted information is personal information of both a third party and the applicant. This is a factor both against and in favour of disclosure.

59. Taking into account the public interest considerations in favour of disclosure (including that the information is personal information of the applicant), the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure do not outweigh the considerations in favour of disclosure. The redacted information should be disclosed to the applicant.

Page 16 of 802

60. This page contains one redaction, made in reliance upon cll 1(f) and 3(a) and (b). For the reasons set out above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) is made out.

61. The redacted information is of the same nature as that redacted from page 14, namely personal information of both a third party and the applicant. This is a factor both against and in favour of disclosure.

60. Taking into account the public interest considerations in favour of disclosure (including that the information is personal information of the applicant), the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure do not outweigh the considerations in favour of disclosure. The redacted information should be disclosed to the applicant.

Pages 28 and 36 of 802

63. This page, which appears as pages 28 and 36, contains one redaction, made in reliance upon cll 3 (a) and (b). It is personal information of both a third party and the applicant and this is a factor both against and in favour of disclosure.

64. Taking into account the public interest considerations in favour of disclosure (including that the information is personal information of the applicant), the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure do not outweigh the considerations in favour of disclosure. The redacted information should be disclosed to the applicant.

Page 78 of 802

65. This page contains one redaction, made in reliance upon cll 3(a) and (b). Again it is personal information of both a third party and the applicant and this is a factor both against and in favour of disclosure.

66. Taking into account the public interest considerations in favour of disclosure (including that the information is personal information of the applicant), the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure do not outweigh the considerations in favour of disclosure. The redacted information should be disclosed to the applicant.

Pages 120, 269 and 681 of 802

67. This page, which appears as pages 120, 269 and 681, contains four redactions, made in reliance upon cl 3.

68. The first and third redactions are the address and date of birth, respectively, of a person named on that page and are personal information of that person. Taking into account the public interest considerations in favour of disclosure, the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party and in particular the nature of that information), the Tribunal finds that on balance the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be disclosed to the applicant.

69. The second redaction is a telephone number of a person named on that page and is personal information of that person. As the applicant does not press for telephone numbers, this need not be considered further.

70. The fourth redaction is also personal information of a person named on that page, which relates to that person’s address. It is not personal information of the applicant. Taking into account the public interest considerations in favour of disclosure, the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be disclosed to the applicant.

Page 123 of 802

71. This page contains two redactions.

72. The first redaction is made in reliance upon cll 3 (a) and (b). The Tribunal is not satisfied that the redacted information is personal information. It should be released to the applicant.

73. The second redaction is made in reliance upon s 74 of the GIPA Act which allows an agency to redact irrelevant information.

74. The Tribunal does not have jurisdiction to review a decision that particular information is outside of the scope of an access application: see s 80 of the GIPA Act and e.g Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 at [102]– [106]; Jackson v University of New South Wales [2019] NSWCATAD 224 at [204] – [205]; Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178 at [46] – [49].

75. This reasoning applies generally to the information redacted by the respondent in reliance upon s 74.

Page 148 of 802

76. This page contains one redaction, made in reliance upon cll 3 (a) and (b). It is personal information of both a third party and the applicant and this is a factor both against and in favour of disclosure. Taking into account the public interest considerations in favour of disclosure (including that the information is personal information of the applicant), the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure do not outweigh the considerations in favour of disclosure. The redacted information should be disclosed to the applicant.

Page 152 of 802

77. The redaction on this page has been made solely in reliance on cl 1(f). As the Tribunal is not satisfied that the public interest consideration in cl 1(f) has been established, there are no public interest considerations against disclosure and this information should be released to the applicant.

Page 158 of 802

78. This page contains one redaction, made in reliance upon cll 3 (a) and (b). The Tribunal is not satisfied that the redacted information is personal information. It should be released to the applicant.

Page 245 of 802

79. This page contains five redactions.

80. The first redaction is made in reliance upon cll 3(a) and (b). It contains a name and to this extent it need not be considered further as access to names is not pressed by the applicant. However, the remainder of the redacted information is not personal information and should be released to the applicant.

81. The second redaction is made in reliance upon cll 3(a) and (b). It contains two words. The first word is a name it need not be considered further as access to it is not pressed by the applicant. The second word is not personal information and should be released to the applicant.

82. The third redaction is made in reliance upon cll 1(f) and cll 3(a) and (b). For the reasons set out above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) is made out. The redacted information contains names and telephone numbers and to this extent it need not be considered further as access to this information is not pressed by the applicant. However the remainder of the redacted information is not personal information and should be released to the applicant.

83. The fourth and fifth redactions are made in reliance upon cll 3(a) and (b). The redacted information is personal information of a third party but not the applicant and this is a factor against disclosure. Taking into account the public interest considerations in favour of disclosure, the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party), the Tribunal finds that on balance the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be disclosed to the applicant.

Pages 251 and 737 of 802

84. This page, which appears as pages 251 and 737, contains one redaction, made in reliance upon cll 3(a) and (b). It is personal information of a third party but not the applicant and this is a factor against disclosure. Taking into account the public interest considerations in favour of disclosure, the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party and in particular the nature of that information), the Tribunal finds that on balance the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be disclosed to the applicant.

Pages 376-377 of 802

85. These pages contain five redactions, made in reliance upon cll 3(a) and (b). In each case, the redaction is the name of a person other than the applicant. As the applicant does not press for access to names, this information need not be considered further.

Pages 471-472 of 802

86. These pages contain two redactions, made in reliance upon cll 3(a) and (b).

87. The first redaction is the name of a person other than the applicant. As the applicant does not press for access to names, this need not be considered further.

88. The second redaction contains the names of two persons other than the applicant, together with some telephone numbers. As the applicant does not press for names or telephone numbers, those names and telephone numbers need not be considered further. However, there is other information which has been redacted but which does not fall within cll 3(a) and (b). Hence, for that other information, there is no public interest consideration against disclosure and it should be provided to the applicant.

Page 582 and 585 of 802

89. This page, which appears as pages 582 and 585, contains one redaction, made in reliance upon cll 1(f) and 3(a) and (b). For the reasons set out above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) is made out.

90. As to cl 3, the redacted information contains (twice) the name of a person other than the applicant. As the applicant does not press for names, that information need not be considered further.

91. There is also other information which has been redacted but which does not fall within cll 3(a) and (b). Hence, for that other information, there is no public interest consideration against disclosure and it should be provided to the applicant.

Page 583 and 586 of 802

92. This page, which appears as pages 583 and 586, contains three redactions.

93. The first redaction has been made in reliance on cll 1(f) and 3(a) and (b). As noted above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) has been established. As to cll 3(a) and (b), the redaction information contains a name and a telephone number, which need not be considered further. The remainder of the redacted information is not personal information and should be released to the applicant.

94. The second redaction has been made in reliance on cll 1(f) and 3(a) and (b). As noted above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) has been established. As to cll 3(a) and (b), the redacted information contains names and email addresses, which need not be considered further. The remainder of the redacted information is not personal information and should be released to the applicant.

95. The third redaction has been made in reliance on cl 3(a) and (b). It contains personal information of a third party but not the applicant and this is a factor against disclosure. Taking into account the public interest considerations in favour of disclosure, the personal factors of the application in favour of disclosure and the sole consideration against disclosure (being that the information is personal information of a third party and in particular the nature of that information), the Tribunal finds that on balance the considerations against disclosure outweigh the considerations in favour of disclosure. The redacted information should not be disclosed to the applicant.

Pages 595 and 597 of 802

96. This page, which appears as pages 595 and 597, contains one redaction, made in reliance upon cll 1(f) and 3(a) and (b). For the reasons set out above, the Tribunal is not satisfied that the public interest consideration in cl 1(f) is made out.

97. As to cll 3(a) and (b), the redaction contains the name and telephone number of a person other than the applicant. As the applicant does not press for names or telephone numbers, that name and telephone number need not be considered further. However, there is other information which has been redacted but which does not fall within cll 3(a) or (b). Hence, for that other information, there is no public interest consideration against disclosure and it should be provided to the applicant.

Second issue: whether the respondent made a decision that it did no hold information and if so, whether that decision is the correct and preferable decision

98. The applicant also expressed concerns that the respondent’s searches were inadequate.

Submissions

99. In paragraphs 62 to 90 of her 2 June 2020 submissions, the applicant drew attention to various matters including:

1. an email on page 78 referring to a meeting, but no records of that meeting having been produced;

2. discrepancies in information provided to her as to the dates within which an audit was conducted.

100. These matters raise some questions as to the adequacy of the search undertaken.

101. The respondent did not address the question of the adequacy of searches undertaken in its submissions dated 25 May 2020 (which preceded the applicant’s 2 June 2020 submissions) or in its 2 February 2021 submissions (which succeeded the applicant’s 2 June 2020 submissions).

102. At paragraph 17 of her 4 April 2021 submissions, the applicant reiterated her concern that adequate searches had not been undertaken.

Consideration

103. Section 53 of the GIPA Act provides that an agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

104. The Tribunal does not have jurisdiction under s 80 of the GIPA Act to review the adequacy of a search undertaken by an agency: Klaric v Commissioner of Police [2020] NSWCATAP 153 at [33]. However, it does have jurisdiction to review a decision that government information is not held by an agency: see s 80(e) of the GIPA Act and Klaric. In the present case, there is no express decision that the respondent does not hold information responsive to the access application other than the 802 pages it has identified, however such a decision is implicit in the 11 December 2020 Decision, which includes: “I consider that reasonable searches have been undertaken in response to your application in compliance with s 53 of the GIPA Act. Based on the information available to me, I am satisfied that all records that exist relevant to your request have been identified and provided to me for consideration”.

105. The jurisdiction of the Tribunal to review implicit decisions that information is not held by an agency was the subject of detailed analysis by Senior Member Lucy in Amos v Central Coast Council [2018] NSWCATAD 101 at [15] – [33]. Senior Member Lucy concluded that the Tribunal did have such jurisdiction under s 80(1)(e) of the GIPA Act. At [30] – [33], Senior Member Lucy stated:

“30 The parties did not refer me to any Appeal Panel authority on the question of whether an implicit decision of an agency that it does not hold information is reviewable. However, in my own research on the issue, I found both relevant authority at first instance, and in the Appeal Panel.

31 The Tribunal has reviewed an agency’s implicit decision that it does not hold information on many occasions (see, for example, Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 and MJ v Department of Education and Communities [2014] NSWCATAD 12). In Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8], the Appeal Panel made the following comments about the source of the Tribunal’s power to consider a challenge to the question of whether an agency had found all the information responsive to an access application:

“The question of whether all documents have been located becomes a reviewable decision in the following way. If the agency's answer is that it has no further documents in relation to the information sought, that is a decision 'that the information is not held by the agency' (s 58(b). A decision that government information is not held by an agency is a reviewable decision (s 80(e)). Such a decision may be said to be an implied decision in any decision responding to an access application.”

32 There is thus considerable authority to the effect that the Tribunal may review an implied decision that an agency does not hold information, including at the Appeal Panel level. The parties did not raise, in Robinson, the question of whether the Tribunal has jurisdiction to review an implied decision. Both parties assumed that it could. As far as I am aware, the power of the Tribunal to review an implied decision under the GIPA Act not been challenged in any other Tribunal proceedings. Notwithstanding this, the Appeal Panel expressed a clear view about its powers to review an implied decision in Robinson, stating at [9]:

“In 2008 the Court of Appeal ruled that FOIA, properly construed, did not give the Tribunal jurisdiction to examine inadequacy of search. The provisions now found in GIPA respond to that gap in FOIA.”

33 This must be a reference to the ADT Appeal Panel case and an expression of a view that the GIPA Act is intended to overcome that decision. I consider that I am bound to follow the Appeal Panel’s finding to the effect that an implied decision is a reviewable decision (see Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [196] and, to similar effect, R v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600 at 616 per Stephen J).”

106. The approach taken in Amos has been followed subsequently: see, e.g., Roberts vCommissioner of Police, NSW Police Force [2018] NSWCATAD 127 at [18]; Pearson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 113 at [15] – [16]; Chetcuti v The University of Sydney [2020] NSWCATAD 164 at [45]-[46].

107. Consistent with that line of authority, the Tribunal has jurisdiction to review the implicit decision that the respondent holds no other documents responsive to the access application.

108. In Wojciechowska v Cmr of Police [2020] NSWCATAP 173, an Appeal Panel discussed the approach to be taken on a review of a decision that information is not held by an agency. As the Appeal Panel emphasised in that case, the respondent bears the onus of satisfying the Tribunal that the decision that information is not held is the correct and preferable decision; and an important consideration is the adequacy of the searches undertaken.

109. The Tribunal has reviewed the 18 March 2020 Decision, the 25 May 2020 Decision, the 11 December 2020 Decision and the applicant’s submissions. Having done so, it is clear that:

1. the respondent has stated that it has conducted reasonable searches, but has not provided any explanation as to what searches it has done beyond stating that hard copy files and electronic files were “…searched by the areas likely to hold the information requested”. For example, there is no indication of the words used to interrogate electronic databases;

2. the applicant has raised some concerns which suggest that there might be other documents responsive to the application; and

3. the respondent has not addressed those concerns.

110. As noted above, no affidavit evidence was filed.

111. In these circumstances, the Tribunal is not satisfied that the implicit decision that the respondent does not hold information responsive to the access application other than the 802 pages identified as potentially responsive is the correct and preferable decision. The appropriate order is to remit this aspect of the proceeding to the respondent for further consideration.

Orders

112. For the reasons set out above, the Tribunal makes the following orders:

1. The decision of the respondent under s 58(1)(d) of the Government Information (Public Access) Act 2009 to refuse access to information because of an overriding public interest consideration against disclosure of the information is:

1. varied, by granting the applicant access to the following information within 28 days of the date of these Orders:

1. each of pages 14, 16, 28, 36, 78, 148, 152 and 158 in their entirety;

2. page 123, save to the extent it has been redacted in reliance upon s 74 of the Government Information (Public Access) Act 2009;

3. page 245, save to the extent that the previously redacted portions contain names, telephone numbers or text redacted from the 18 October 2019, 1.12 pm email;

4. pages 471 – 472, save to the extent that the previously redacted portions contain names or telephone numbers;

5. page 582, save to the extent that the previously redacted portions contain names;

6. page 583, save to the extent that the previously redacted portions contain names, email addresses, telephone numbers, or text contained in the third redacted box;

7. page 585, save to the extent that the previously redacted portions contain names (other than the applicant’s name);

8. page 586, save to the extent that the previously redacted portions contain names, email addresses, telephone numbers, or text corresponding to that contained in the third redacted box on page 583;

9. page 595, save to the extent that the previously redacted portions contain names or telephone numbers;

10. page 597, save to the extent that the previously redacted portion contains names or telephone numbers;

2. otherwise affirmed;

2. The implied decision of the respondent under s 58(1)(b) of the Government Information (Public Access) Act 2009 that it does not hold any information responsive to the access application other than the 802 pages provided to the Tribunal (“Decision”) is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration;

3. The respondent is to affirm the Decision, vary the Decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicant and the Tribunal, within 28 days of the date of these Orders;

4. The applicant is to inform the Tribunal and the respondent whether she wishes to proceed with the application for review of the Decision, or withdraw her application in respect of that decision, within 49 days of the date of these Orders;

5. If the applicant decides to proceed with her application for review, she is to request the Registry to relist the matter for directions when she informs the Tribunal of her decision in accordance with Order 4 above;

6. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:

1. The applicant is to be identified by the pseudonym “CLT”;

2. The identity of the applicant is not to be disclosed by the respondent or any other person and she is to be referred to as “CLT”.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 20 August 2021