Collins v Secretary, Department of Education

[2025] NSWCATAD 151

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Collins v Secretary, Department of Education [2025] NSWCATAD 151

Hearing dates:

14 April 2025

Date of orders:

23 June 2025

Decision date:

23 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member

Decision:

(1)   The decision under review is set aside. The applicant is granted access in full to the information the subject of the application.

(2) Order 3 of the orders made on 14 April 2025 pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) is vacated.

Catchwords:

ADMINISTRATIVE LAW; Government Information (Public Access) Act 2009; access to information; public interest considerations in favour of disclosure; public interest factors against disclosure; weighing considerations; discharge of onus; whether disclosure could reasonably be expected to prejudice the supply of confidential information

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Freedom of Information Act 1989

Government Information (Public Access) Act 2009

Cases Cited:

Burke v Health Education and Training Institute [2016] NSWCATAD 194

Challita v Department of Education and Training [2010] NSWADT 175

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

Community Resources Network v Department of Communities and Justice [2022] NSWCATAD 363

Davis v Secretary, Department of Education [2022] NSWCATAD 55;

DQE v University of Sydney [2019] NSWCATAD 132;

Eastman v Nepean Blue Mountains Local Health District [2022] NSWCATAD 263;

EIF v Legal Aid [2020] NSWCATAD 113;

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

Hansen v Commissioner of Police (NSW) [2020] NSWCATAD 89;

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Jones v NSW Department of Education [2017] NSWCATAD 51

Leech v Sydney Water Corporation [2010] NSWADT 298

Potts v Commissioner of Police [2022] NSWCATAD 86

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Transport for NSW v Searle [2018] NSWCATAP 93

Webb v Port Stephens Council [2022] NSWCATAD 404

Category:

Principal judgment

Parties:

Paul Collins (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Applicant (Self-Represented)
The Crown Solicitor (Respondent)

File Number(s):

2024/00431245

REASONS FOR DECISION

Introduction and background

1. The applicant is an English teacher at Camden Haven High School (CHHS) where he has worked for 24 years.

2. In 2021, two faculties at CHHS: the English faculty, and the Human Society and its Environment faculty, were subject to a “culture review” which was conducted by consultants Altius (the Culture Review). While various members of staff including the applicant made contributions to the Culture Review, such as participating in focus groups, the resulting report has not been provided to them, nor to anyone at the school other than the principal.

3. In 2022, a School Development Review (SDR) was conducted of the school. Unlike the Culture Review, this is a process of the respondent’s department which is conducted by reference to a policy and procedure encapsulated in a “School Development Review Team Leader Manual” (SDR Manual). To undertake the SDR, a review team spent a week at the school (1-5 August 2022) conducting interviews and undertaking observations.

4. On 7 August 2022, an Exit Presentation (in the form of a PowerPoint presentation) (Exit Presentation) was delivered to the staff of CHHS at a whole school staff meeting (which the applicant did not attend) outlining aspects of the SDR. During that presentation, staff were apparently informed that the final report would be shared only with the school’s principal.

5. A report was then prepared (SDR Report) which was endorsed by the region’s Executive Director, School Performance, on 25 August 2022. The SDR Report was shared with the school Principal. It was not made available to other teachers at the school.

6. On 6 March 2024, Mr Collins made an application pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to the findings of the Culture Review, and for the complete findings of the SDR.

7. On 11 March 2024, the respondent decided to grant “view only” access to the Exit Presentation, and to refuse to release the remainder of the information, i.e. the findings of the Culture Review and the SDR Report, on the basis that there was an “overriding public interest against disclosure”.

8. On 3 June 2024, the applicant applied to the NSW Information Commissioner (IC) for external review. By a recommendation made on 3 September 2024, the IC indicated that she was not satisfied that the Department had identified all public interest considerations in favour of disclosure. She also indicated that she was not satisfied that the Department had demonstrated that its reliance on items 1(d), (e), (f), (g) and (h) of the Table to s 14 of the GIPA Act, referring to public interest considerations against disclosure, was reasonably based. The IC recommended that the respondent make a new decision by way of internal review.

9. An internal review decision was made by Daniel French, the Department’s Executive Director, School Excellence, on 27 September 2024. By that decision, the Department determined that there was an overriding public interest against the disclosure of the information.

10. On 20 November 2024, the applicant sought review by the Tribunal of the decision to refuse him access to the information he sought.

Summary of decision

11. For the reasons set out in the remainder of this decision, the decision under review is set aside and the applicant is granted access in full to the information the subject of his application for review.

12. In summary, the Tribunal finds that the respondent has not met its onus of establishing that any of the public interest considerations against disclosure set out in the table to s 14 of the GIPA Act and on which it relied (cll 1(d), 1(f); 1(g) and 1(h)) is made out.

Relevant legislative framework

13. Section 3 of the GIPA Act sets out the objects of the Act. Included among those are the following:

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:

…

(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.

14. By s 5 of the GIPA Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

15. Section s 9(1) of the GIPA Act provides that 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.

16. Division 2 of Part 2 of the GIPA Act is headed “Public interest considerations”. Section 12 sets out an expressly non-exhaustive range of public interest considerations in favour of disclosure. Those articulated in s 12 include that disclosure of the information could reasonably be expected to:

1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance;

2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; or

3. ensure effective oversight of the expenditure of public funds.

…

17. By s 13 of the GIPA Act, there is an overriding public interest against disclosure, for the purposes of the 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.

18. By contrast with how s 12 is cast, as a non exhaustive, open ended set of examples of considerations in favour of disclosure, s 14(2) provides that 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”.

19. The part of that table that includes the provisions relied on by the respondent in this case is headed “Responsible Government” and provides as follows:

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)—

(a) prejudice collective Ministerial responsibility,

(b) prejudice Ministerial responsibility to Parliament,

(c) prejudice relations with, or the obtaining of confidential information from, another government,

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

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

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

20. Section 15 sets out a process for assessing whether there is an overriding public interest against disclosure 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.

21. Under s 55 of the GIPA Act, the personal factors of the applicant, being an applicant’s identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account.

22. Section 72 sets out ways in which access may be provided:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read,

…

(2) The agency must provide access in the way requested by the applicant unless—[among other things]

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

23. And by s 73, an agency may not impose conditions on the use or disclosure of the information though it may impose a condition as to how a right of access may be exercised, albeit “only to avoid there being an overriding public interest against disclosure of the information”.

24. Section 74 of the GIPA Act permits an agency to delete information from the copy of a record to be accessed “either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.” In other words, access may be provided with certain parts of the information redacted.

25. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1), including by:

“(a)   deciding to provide access to the information

….

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.”

26. Part 5 of the GIPA Act provides for review of decisions. By s 80(d) of the GIPA Act, a decision to refuse to provide access to some or all of the information sought by the applicant in his access application is a decision reviewable by the Tribunal, as is a decision about how to provide access. The Tribunal’s jurisdiction to conduct this review derives from s 100 of the GIPA Act, in combination with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

27. The role of the Tribunal on review is to make the “correct and preferable” decision, having regard to all relevant legal and factual information before it: see s 63(1) ADR Act. Section 63(2) of that Act provides that the “Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision”. This is frequently described as the Tribunal “standing in the shoes of the decision maker”. Critically, the Tribunal is not reviewing the legality of the decision under review but is required to make afresh the correct and preferable decision. Generally, it is not limited to doing so by reference only on the material that was before the decision maker.

28. The provisions of the GIPA Act referred to above apply where the applicant has made a valid “access application” seeking “government information”. No issue has been taken as to whether the applicant has made a valid “access application” under Part 4 of the GIPA Act, nor has the respondent contended that it is not relevantly an agency, nor that the information requested was not “government information” (see the definition of these terms in s 4 of the GIPA Act).

29. A distinctive element of the review process for applications to the Tribunal under the GIPA Act is that in this type of application, the respondent has the onus of establishing that the decision is justified (s 105(1) of the GIPA Act). Thus the respondent must establish, in this case, that there is an overriding public interest against disclosure, on one of the bases provided for in the table in s 14. It must also establish, if it meets the onus of persuading the Tribunal that one of those bases applies, that that public interest factor outweighs the public interest factors in favour of disclosure.

30. Finally, in relation to the process for undertaking reviews of this nature, s 107 provides that NCAT is to ensure that it does not disclose, in its reasons or otherwise, any information for which there is an overriding public interest against disclosure and must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if, in the opinion of NCAT, it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. The information the subject of the application in this case has been provided to the Tribunal on a confidential basis and has not been made available to the applicant prior to the making of the decision.

The Issue(s) in the case

31. The issues that the Tribunal must address in this review are:

1. Is there a public interest against disclosure of a kind identified in the table to s 14 of the GIPA Act that applies to release to the applicant of:

1. The Culture Review; and/or

2. The SDR Report.

2. If there is such a public interest against disclosure, does that interest outweigh the public interest in favour of disclosure of the information?

32. While the Exit Presentation was not initially the subject of a request for information by the applicant, the respondent has put that into contention by offering to provide a read-only version of it to the applicant. In light of that decision, the Tribunal also considers whether the respondent has met its onus of establishing that there is a public interest against disclosure in any other form that outweighs the public interest in favour of disclosure of the Exit Presentation.

The Respondent’s case

33. The respondent’s case was set out in the following:

1. Primary decision dated 11 April 2024, refusing access;

2. Internal review decision dated 27 September 2024 (IRD);

3. Affidavit of Daniel French affirmed 31 March 2025 (French affidavit) and filed 1 April 2025, and Exhibit DF-1 to the French affidavit (DF-1); and

4. Respondent’s submissions filed 1 April 2025 (RS).

The Respondent’s evidence

34. The sole witness for the respondent was Mr Daniel French, the Acting Deputy Secretary, Strategic Priorities, at the NSW Department of Education (whose substantive position is Executive Director of School Excellence). After the IC had recommended that the respondent make a new decision, Mr French conducted the internal review.

35. The Culture Review: Mr French outlined the process that was involved in the Culture Review, noting that of the 40 staff in the two relevant departments, 26 participated in a mix of semi structured focus groups and 10 staff in one-on-one interviews conducted by two psychologists. Consent forms were signed by participants and Mr French stated that he was “informed by Mr Kuchling [Director, Educational Leadership, who determined the GIPA Act application] that the Deputy Principal … advised him that staff were informed in the group interview sessions that the process was anonymous and confidential”. He was also apparently informed by Mr Kuchling that the recommendations of the Culture Review were provided to the then Principal of the school but never released to staff.

36. The SDR: Mr French explained the context in which a SDR is undertaken, which he stated was only in exceptional cases. This could be where a school has not achieved sustainable improvement after receiving significant support and/or where there is evidence to indicate that an SDR would be beneficial for the school’s future planning processes. He exhibited a copy of the SDR Manual to his affidavit.

37. Mr French was also not directly involved in the SDR. He advised that members of the review team signed a code of conduct which required that they “maintain the confidentiality of all information disclosed … as part of the SDR process”. Parents were also sent a letter that included the statement: “confidentiality is assured by the school development review team. Individual participants will not be identified at any stage when providing feedback”.

38. It was his understanding that when conducting interviews, members of the review team used “a standard script at the beginning of the interview which confirmed the confidentiality of the process and gave an assurance that names would not be recorded or divulged”. He also noted that the SDR report is “prominently marked as “Confidential””.

39. The SDR Manual includes the following statement:

This review is classified for department ‘staff only’ which is defined as staff of the school, the school principal, the Director, Educational Leadership, the Executive director, school performance, the deputy secretary, school performance north, and relevant department staff who are providing official, additional support to the school. The principal and Director, Educational Leadership should discuss how best to share the outcome of the review with the school community.

40. While Mr French acknowledged that the SDR Manual refers to “staff of the school”, he states that “as a matter of both policy and practice SDR reports are not broadly distributed or shared with the teaching staff of a school”. Instead, the findings and recommendations are communicated to staff and the broader school community via an “exit presentation”. Such a presentation took place on 7 August 2022.

41. Mr French considers that the strength of the SDR process is its ability to elicit responses from a broad range of stakeholders and that confidentiality is an important element of that process as it enables the frank and fearless participation of members of staff, students and the broader school community in the process. He is concerned that if information gathered as part of that process was disclosed under the GIPA Act, it would undermine stakeholder confidence in the confidentiality and integrity of the SDR process. In his view if the department “could not give meaningful assurances of confidentiality with respect to information supplied during an SDR ... it would be much more difficult for the department to obtain such information” and “individuals would be reluctant to participate if the confidentiality of their information could not be maintained”. He also expressed concern that disclosure of the report could have a negative impact on the functioning of the school and the health and well-being of staff of the school. He acknowledged that neither the SDR nor the Culture Review mentions any staff by name, but he considered that a reader would be able to draw inferences (or at the very least, engage in speculation) about who may have expressed certain opinions. This would “constitute a significant breach of trust of the staff who participated”. He considered there to be “significant risk that disclosure could exacerbate tensions or give rise to interpersonal conflict within the school community”.

42. As for the Exit Presentation, Mr French expressed concerns that release of it “beyond the controlled conditions of the staff meeting or view only access” could impact on the efficacy of the SDR and would limit or prevent the improvement of the school as it may increase workplace tension and decrease trust. He considered that not releasing the report was a way of not exacerbating interpersonal conflicts.

43. The applicant provided the Tribunal with a copy of a School Review Report of CHHS dated May 2003 which documented an analogous review of the school. That review was undertaken pursuant to an earlier departmental policy and the report had been provided to staff. Mr French was asked to explain the change in policy. While he agreed that the features of a current SDR are similar to those previously undertaken, he stated that “the manual was strengthened” and one of the reasons for the change was to ensure that people feel that their confidentiality and privacy is addressed.

44. Mr French did not identify any particular part of the SDR Manual that expressly provided that an Exit Presentation could not be provided to a staff member other than on a view only basis. In his affidavit, he indicated that his concerns about the wider release of the Exit Presentation “relate to the potential impact on staff wellbeing, and the consequent impact on the efficacy of the SDR”.

45. Mr French agreed that as he was not involved in the process directly, he could not say definitively that the staff were told that they would not get a copy of the report, but he would expect that to have happened.

46. The applicant asked him whether, in light of his stated concern about a possible exacerbation of interpersonal conflict, if there was tension between staff and the principal, and the principal was the only person given a copy of the reports, he considered that would equally give rise to potential interpersonal conflict. He stated that the principal is always privy to amounts of information with which the staff are not provided.

47. In summary, Mr French emphasised that the policy of not releasing the SDR and the decision not to release the culture review were both directed at ensuring “full and frank disclosure by participants”, without which “the effectiveness of an SDR to interrogate and investigate issues which may be limiting school excellence would be … compromised”.

The Respondent’s submissions (RS)

48. After setting out the background to the Culture Review and the SDR, and a summary of the legislative framework governing the GIPA Act, the respondent contended that its decision to refuse access to the requested information was supported by the public interest considerations against disclosure provided for in the table pursuant to s 14 of the GIPA Act at clauses 1(d); 1(f), 1(g) and 1(h) (set out above at [17]).

49. The RS summarise Mr French's affidavit, and outline some of the general principles that govern the application of the public interest test. Turning to the case before the Tribunal, the respondent identified the following public interest considerations that favour disclosure of the relevant information as follows:

1. disclosure of the information could reasonably be expected to inform the public about the operation of agencies, and, in particular, their policies and practices for dealing with members of the public; and

2. disclosure of the information could assist the applicant to understand the procedures and processes of the SDR.

50. The applicant had raised as an additional factor favouring disclosure that it might reveal whether there had been breaches of the respondent’s obligations under work health and safety legislation. A further personal consideration in favour of disclosure (referring to s 55(2) of the GIPA Act), was the applicant’s status as a teacher with many years of service at the school.

51. The respondent contended that each of cll 1(d), 1(f), 1(g) and 1(h) applies to the information in this case and that those factors outweigh the factors in favour of disclosure.

52. After referring to some of the authorities that had considered cl 1(d) (the text of which is set out above), the respondent drew attention to Mr French’s evidence that participants in both processes were assured of confidentiality. This included that members of the SDR review team signed a code of conduct that required them to maintain the confidentiality of all information disclosed as part of the process; there was a letter sent to parents indicating that “confidentiality is assured”; and were said to have used a script at the beginning of the interview that confirmed the confidentiality of the process and gave an assurance that individual names would not be recorded or divulged.

53. It was submitted that the report (the SDR) was “prominently marked” as confidential; and it was also stated that the concern with maintaining confidentiality will be evident from the fact that individual participants are not named nor are contributions attributed to any identified participant. It was further submitted that SDR reports (as undertaken pursuant to the relatively new policy) “have never been released to staff, the school community or the public at large”.

54. The respondent also contended that disclosure of the confidential information would “prejudice the supply of such information in the future”, on sensitive issues such as the conduct of colleagues and disclosure under the GIPA Act would, in Mr French’s view, “undermine stakeholder confidence in the confidentiality and integrity of the SDR processes”. It would also be at odds with the Departmental policy and the assurances of confidentiality given to participants.

55. The respondent cited a number of authorities that have dealt with the issue of the likely prejudice to the future supply of confidential information, i.e. with cl 1(d) of the table attached to s 14 and submitted that confidential information is “essential to the effective exercise of the respondent’s functions”.

56. The respondent then addressed cl 1(f) (disclosure would prejudice the effective exercise of agency functions) and reiterated some of the evidence Mr French had given, particularly his concern that there was a significant risk that disclosure could exacerbate tensions or give rise to interpersonal conflict. It was his view that this outcome would “have a further prejudicial effect on the effective exercise of the respondent’s functions”.

57. Clause 1(g) concerns whether disclosure would result in the disclosure of information provided to an agency in confidence. The respondent emphasised that it does not rely on the part of this clause that relates to an action for breach of confidence.

58. The respondent pointed out that the word “reveal” as used in that clause is defined to mean “disclose information that has not already been publicly disclosed”. The respondent contends that the information in question is information that has not been publicly disclosed, and thus cl 1(g) applies. During oral submissions, the respondent indicated that it would provide some references to the Tribunal of any relevant case law that had considered this clause.

59. The final consideration dealt with was cl 1(h) in relation to which it was submitted that disclosure of the information would prejudice the “conduct, effectiveness or integrity of any… review conducted by or on behalf of [the] agency by revealing its purpose, conduct or results” in future. Again the response relies on Mr French’s evidence, specifically contending that it would be inconsistent with express assurances of confidentiality and could exacerbate tensions or give rise to interpersonal conflicts.

60. The respondent referred to the decision in Challita v Department of Education and Training [2010] NSWADT 175 which it contended was an analogous case where the Tribunal found there was an overriding public interest against the disclosure of an audit report concerning the Department’s selective schools unit.

61. The respondent submitted that the public interest factors against disclosure were more weighty than those in favour, emphasising also that disclosure is effectively “to the world at large”.

62. The respondent also submitted that as the Exit Presentation reflects the key findings and outcomes of the SDR, its unconditional disclosure under the GIPA Act would itself give rise to each of the public interest considerations against disclosure that are relied on for the SDR report. Exit Presentations are intended to take place in a controlled environment with appropriate staff support available. Public release could “increase workplace tension and decrease trust”. This is despite the acknowledgment by the respondent that the level of detail is much less than in the SDR and thus the considerations against disclosure may be attributed less weight than applies to the culture review and the SDR.

The applicant’s case

63. The applicant provided the following in support of his case:

1. A statement attached to his application for review headed “Reasons for requesting an external review”: 20 November 2024;

2. Statement dated 21 March 2025;

3. Submissions dated 11 April 2025.

64. In those documents, and in his oral evidence, he presented the following evidence and submissions:

1. The applicant has been employed by the department for 37 years, and for 24 years at CHHS. In that capacity, he participated in both the reviews that are the subject of his application for information.

2. Neither in the case of the Culture Review nor the SDR were participants advised that they would not receive copies of the outcomes of both reviews. It was not until the Exit Presentation (in the case of the SDR) that they were made aware that that was not the case.

3. As for the respondent’s contention that SDR reviews are never shared with staff, the applicant advised that the 2003 review report for CHHS was made available to staff of the school (and he provided a copy of it to the Tribunal). The people who conduct such reviews and write the reports are able to prepare reports without disclosing confidential information that can identify participants. He stated: “DET has continued to function well in the past after releasing these reports”.

4. The applicant participated in the Culture Review which he claims created considerable disruption at the school with some 25 teachers being taken out of classes for a day. He stated that participation was not voluntary but compulsory. There were three focus groups with 8-9 members each. A number of very sensitive matters were raised and it was already clear to at least the other members of the focus group what those issues were (and who had raised them).

5. In his view, failure to disclose the information would have the opposite effect to the one claimed by the respondent. Non-release would discourage participation since, if those staff who participate do not get to see the results of the process, they may consider it pointless in future to participate in similar reviews.

6. As for the argument that release might have the effect of identifying certain people, the applicant contended that if this were the case, then the guarantees of confidentiality must have been breached. And if the report was provided to the principal, and there were interpersonal issues between the principal and some staff, that would already have the effect the respondent claimed would flow from disclosure.

7. In relation to the Exit Presentation, the applicant was not at the school when the staff meeting was held on 7 August 2022. He also points out that the SDR Report had not been written at that stage.

8. The respondent was conflating the assurances of confidentiality given to participants with requiring the final reports to be confidential. He noted that the SDR Manual states “confidentiality is assured by the [SDR] team. Individual participants will not be identified at any stage when providing feedback to the principal and/or in the final report.” He contended that it was a “false equivalence” to find that because contributions were confidential, the report was also confidential.

9. The fact that a report is marked “confidential” has not prevented other documents with similar markings being released in the past.

10. As for the Exit Presentation, he drew attention to what is said in the SDR Manual:

The exit presentation PowerPoint should be converted to a PDF by the review team leader and provided to the principal to share with staff and the school's P&C at the same time as the draft report is provided.

11. The applicant submitted that the offer to permit him view-only access to this document demonstrates that the department is not following its own policy.

12. The inference to be drawn from some of the arguments put by the respondent about the new policy is that confidentiality was not an issue prior to 2019. But that is not the case, as the report dated 2003 makes clear. It does not identify any person by name but indicates the content of the issues that were raised.

Confidential hearing and proposed post hearing evidence

65. The Tribunal held a brief confidential hearing during which it asked the respondent to identify which specific parts of the two documents that had been provided to the Tribunal pursuant to an order made under s 64(1)(d) of the CAT Act it considered raised the concerns the subject of Mr French’s evidence and the respondent’s submissions. While some parts of the Culture Review provided to the Tribunal had been highlighted, the respondent did not submit that these were the relevant passages. Instead, the respondent agreed to provide that information following the hearing. The respondent did not, even on a preliminary basis, identify any specific parts of the SDR Report but also proposed providing that information in writing after the hearing.

66. In an open session, there was also discussion about what changes if any had been made to the policy or the Manual governing such reviews so that a review undertaken in 2003 could be provided to staff, but not one undertaken under the current policy. The following orders were made:

The Secretary, Department of Education is to give to the Tribunal on or before 2 May 2025, on a confidential basis, a statement addressing which parts of the confidential information (Exhibit R2) the Respondent considers specifically warrant a finding that disclosure would be contrary to the public interest.

The Secretary is also to send a note to the Tribunal and copy to the Applicant, on or before 2 May 2025, identifying the policy or policies that predated the 2019 policy for the conduct of the School Development Review.

67. No further material was provided to the Tribunal by the respondent. On 12 May 2025, the Tribunal wrote to the respondent advising as follows:

The Tribunal has received advice from a party about non-compliance with procedural directions.

… Failure to comply may result in any late submissions not being accepted by the Tribunal.

68. No response has been received from the respondent. The Tribunal infers that the respondent does not intend to provide any further material and has proceeded to make its decision on the material provided to the time of the hearing.

Consideration

69. There was little if any contest of a factual nature in this matter, save perhaps for the question of whether participation in the Culture Review was mandatory or voluntary, which, in the Tribunal’s view, does not require a finding to be made as it was not a matter in issue.

70. The relevant findings that must be made are whether the respondent has met its onus of establishing that there is a public interest against disclosure of the information sought (or part of it) pursuant to one or more of the factors relied on by the respondent (cll 1(d), (f), (g) and/or (h).

71. The appropriate approach to its task was set out in Potts v Commissioner of Police [2022] NSWCATAD 86 at [22] (and authorities cited there) as follows:

1. Identify public interest considerations in favour of disclosure;

2. Identify relevant public interest considerations against disclosure;

3. Attribute weight to each consideration; and

4. Determine whether the balance lies in favour or against disclosure of the government information.

72. That exercise takes place in the context of the legislation as a whole, including the objects and purposes, noting that s 3(2) provides:

3(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.

Considerations in favour of disclosure

73. The Tribunal finds that the following factors favour disclosure

1. The applicant has been a teacher at the school for many years and participated in each of the reviews the subject of his information request;

2. As a stakeholder, disclosure to him would assist him in understanding the process and content of each of the reviews, and enable him to assess whether any of what was addressed has been implemented;

3. Disclosure would enable the applicant to ascertain whether there had been any breaches of work, health and safety legislation and whether any of the assurances about confidentiality/non-identification had been breached.

4. Disclosure would encourage staff members to participate in future reviews as they would feel some ownership in the process; and

5. There is also the general statutory presumption in favour of disclosure (s 12(1)), which is emphasised in other parts of the Act (eg s 3(1); s 3(2); s 5; s 9(1)).

Factors against disclosure

74. “Could reasonably be expected to …”. In each of cl 1(d), (f), (g) and (h), the relevant statutory test requires that the disclosure of the information “could reasonably be expected to have” the stated effect; respectively in summary, “prejudice the supply of confidential information that facilitates the effective exercise of that agency’s functions”; prejudice the effective exercise of the agency’s functions; result in the disclosure of information provided to the agency in confidence; or “prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results”. Thus the Tribunal must consider whether the respondent has established that any of those identified effects could reasonably be expected to occur if the information was released.

74. The Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] summarised the authorities on whether something could “reasonably be expected to occur” relevantly as follows:

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.

[The Tribunal here set out an extract from McKinnon v Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [61] per Hayne J]…

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].

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].

76. Thus something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived:  see also Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40]-[41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

77. The term “prejudice” has been said to have 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].

78. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. And it is the respondent who carries the onus of establishing that effect, on the balance of probabilities: see Barrett, at [42].

79. The key evidence in support of the claims against disclosure was that of Mr French. He was also the decision maker in the internal review. Mr French frankly acknowledged that he had no personal knowledge of a number of the matters about which he gave evidence. A clear example of this from his affidavit is the following:

I am informed by Mr Kuchling that the Deputy Principal […] advised him that staff were informed in the group interview sessions that the process was anonymous and confidential.

80. While Mr French expressed concerns about what he thought would or could happen should the information be released, no concrete support was provided for that view. Nor did the respondent do more by way of evidence than proffer Mr French’s view of what he feared would happen: a view that was not supported by any other evidence.

81. Clause 1(d): The key statutory elements of establishing that cl 1(d) applies are that the information was obtained in confidence; that disclosure could reasonably be expected to prejudice the future supply of information; and that the information facilitates the effective exercise of the agency’s functions.

82. Each of those elements needs to be established by evidence. Mr French’s evidence about the manner in which the information was obtained was, as noted above, based only on what he understood to be the position as reported to him by others. In the view of the Tribunal, it is equally likely that the assurances of confidentiality were directed at ensuring the “non-identification” of any participant rather than “confidential” being used as some kind of assurance that the outcome of the review would not be published. Thus the Tribunal cannot be satisfied that the information was obtained in confidence. The Tribunal does not accept that the mere marking of the report as “confidential” is determinative of the basis upon which the information was provided. Nor does the Tribunal find persuasive the fact that SDR reports have never been released to staff as this refers only to those conducted under the policy dated 2019. The evidence before the Tribunal is that analogous reports were in fact provided to staff under a prior policy about which no information was provided to the Tribunal by the respondent. On that basis, the Tribunal is not in a position to find that there has been any significant change in the terms under which the SDR was conducted.

83. The respondent refers in its submissions at [56] to a number of decisions it contends support its claim that information of this kind has been held to be confidential when supplied during “analogous review and investigation processes”. Yet none of those cases is directly analogous. They either concern complaints handling or misconduct inquiries (DQE v University of Sydney [2019] NSWCATAD 132; EIF v Legal Aid [2020] NSWCATAD 113; Davis v Secretary, Department of Education [2022] NSWCATAD 55; Eastman v Nepean Blue Mountains Local Health District [2022] NSWCATAD 263; or attempts to obtain information about individual hirings or dismissals (e.g. Hansen v Commissioner of Police (NSW) [2020] NSWCATAD 89; or about a particular individual person: Community Resources Network v Department of Communities and Justice [2022] NSWCATAD 363. In no case was a report of a general review of an organisation such as a school the subject of the decision.

84. To the extent that the respondent referred to the SDR Manual in support of its contention that it was the policy of the respondent that reports not be released, the Tribunal notes that the policy itself cannot determine the issues that are required to be decided under the GIPA Act. In any event, to the extent that it may provide some evidence, the SDR Manual provides inconsistent information as to whether the resulting report is to be released.

85. While Mr French referred to a script that was used by those who conducted the SDR about assurances of confidentiality, no such script was in evidence. The only document in evidence that provided any indication of what was told to participants was the letter to parents extracted above which said “confidentiality is assured by the school development review team. Individual participants will not be identified at any stage when providing feedback”.

86. The Tribunal is not persuaded that the information elicited as part of the review was provided in confidence on an understanding that it would not be released, even in de-identified form. The Tribunal considers it more likely that those who provided information for the two reviews (such as the applicant did) expected the information to be taken into account, albeit in a manner that did not reveal the individual source, and that the information would then be made the basis of a report which would be available to stakeholders, without identifying anyone who participated.

87. As for whether release of the reports would prejudice the future supply of information, the Tribunal accepts Mr Collins’ submission that non-disclosure of the information is more likely to limit future participation rather than, as submitted by the respondent, the alternative. If stakeholders consider that they are excluded from any knowledge of the outcome of a review in which they participated they may well decide that there is no point participating in a similar future process.

88. The issue of whether the type of information being considered in this case “facilitates the effective exercise of the agency’s functions” was addressed by the respondent by the claim that “confidential information supplied during review processes is essential” to those functions. The respondent referred to the need for frank, open and fearless participation in the SDR process as part of the School Excellence portfolio’s architecture for school improvement, including in relation to sensitive issues. That is certainly the case, and a school cannot be effectively reviewed without obtaining the input of the people who work in it but as the evidence before the Tribunal shows, earlier reviews that dealt with sensitive issues were not withheld from participants.

89. Partial release/redaction of parts of the information? As noted above, the respondent has not taken up the opportunity provided to it to identify which parts of the reports provided in confidence to the Tribunal it contends have the effects it submits would occur if they were disclosed. In the RS, the attention was focused on the reports in full.

90. In Taylor v Office of Destination NSW [2018] NSWCATAD 195 the Tribunal said:

19 … [T]he Respondent has not identified for the Tribunal the specific information in each document which it says should be withheld on the basis of its concerns regarding disclosure, and that which can be released. The Respondent has instead applied the public interest test to the category of document, rather than identifying the relevant information in each document and applying the public interest test to the actual information. This approach attempts to short-cut the balancing exercise required by correct application of the GIPA Act.

20 It is the Respondent’s obligation to identify the information contained in each document which it says should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour. It is then the Respondent’s burden, pursuant to s 105(1) of the GIPA Act, to justify its decision through submissions and evidence.

91. In the present case, in the course of the confidential hearing, the respondent identified some passages in the Culture Review (but none in the SDR Report) that it said referred to concerns that had been raised by some members of the school community (such as unprofessional behaviour by a small minority of staff). However, it did not, as it said it would, follow that up with specific references in writing.

92. As Mr Collins pointed out in the public part of the hearing, highly sensitive issues were raised in focus groups each comprising 8 or 9 teachers and are therefore already known to at least the other participants in the focus groups where they were raised.

93. For these reasons, the Tribunal finds that the respondent has not established that cl 1(d) applies to the information the subject of the review.

94. Clause 1(f): disclosure would reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions. This requires the respondent to establish what is the relevant function it relies on and how it could reasonably be expected to be prejudiced. It is said (RS [67]) that disclosure would prejudice the core functions of providing quality education in government schools. The respondent relies on Mr French’s evidence that was the subject of its case in relation to cl 1(d), and repeats his concerns about the negative impact on the functioning of the school and health and wellbeing of staff that disclosure might have. The respondent also suggests that disclosure could lead to speculation about who might have said what, and that may “exacerbate tensions or give rise to interpersonal conflict within the school community”. That concern was not the subject of any concrete evidentiary material which would permit the Tribunal to find that this possible impact “could reasonably be expected to occur”. For this reason the Tribunal finds that the respondent has not established that the public interest identified in cl 1(f) is made out.

95. Clause 1(g): disclosure could reasonably be expected to result in the disclosure of information provided to an agency in confidence. The respondent has the onus of establishing that the information was obtained in confidence; and disclosure could reasonably be expected to result in the disclosure of information that was provided in confidence. In its submissions, the respondent repeated and relied on the same evidence as it did for cl 1(d). The respondent was asked by the Tribunal if it relied on any authorities that referred specifically to cl 1(g) and the respondent agreed to provide that information after the hearing. However, no further information was received.

96. In those circumstances, and in view of its finding in relation to clause 1(d), the Tribunal finds that the respondent has not met its onus of establishing that clause 1(g) applies, that is, that disclosure could reasonably be expected to result in the disclosure of information provided to the agency in confidence.

97. Clause 1(h): disclosure might reasonably be expected to prejudice the conduct effectiveness or integrity of any audit, test investigation or review by revealing its purpose, conduct or results …” This requires the respondent to identify the particular audit or test it relies on; and in particular, how disclosure of the information would result in revealing the purpose, conduct or results of that audit, test etc.

98. In Burke v Health Education and Training Institute [2016] NSWCATAD 194 the tribunal did not accept that the disclosure of information about an investigation would have the effect of revealing its “conduct” because the applicant already knew, in broad terms, how the investigation had been conducted: at [109]. The same is the case here: the applicant was directly personally involved in the Culture Review and the SDR and is aware of how each was conducted. And in Jones v NSW Department of Education [2017] NSWCATAD 51, while the tribunal accepted that the release of the information could reasonably be expected to prejudice the effectiveness of an investigation, it would not do so by “revealing its purpose, conduct or results”. Accordingly, 1(h) of the Table did not apply (at [78]). The respondent relied on Challita v Department of Education and Training [2010] NSWADT 175 which was a case determined under an analogous, but not identical provision of the former Freedom of Information Act 1989. It also concerned an audit that was part of a broader process overseen by the Auditor General. The Tribunal considers that this decision does not assist the respondent as the relevant provision did not refer to the need to show that the effectiveness of the audit would be prejudiced by “revealing its purpose, conduct or results”.

99. In light of those authorities, the Tribunal finds that the respondent has not established that cl 1(h) has any relevant application to the issue of whether either the Culture Review or the SDR Report ought to be released.

The Exit Presentation?

100. The applicant sought access to the findings of the Culture Review and to the SDR. He has been offered access to the Exit Presentation, though on a view-only basis.

101. The Exit Presentation is clearly not the information he was seeking. As for the information he was seeking, s 72(2) provides that the agency must provide access in the way requested by the applicant unless one of the matters identified in clauses (a)-(d) applies. These include that to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs or would breach copyright (compare Webb v Port Stephens Council [2022] NSWCATAD 404 at [98]-[99]).

102. As noted above, the SDR Manual suggests that the Exit Presentation, in a pdf form, is to be provided to staff. To the extent that the applicant continues to seek a copy of that presentation (which is not either the findings of the Culture Review or the SDR Report), the Tribunal finds that, for the same reasons that apply to the Culture Review and the SDR Report, none of the considerations relied on by the respondent to seek to resist disclosure is established in relation to the Exit Presentation.

103. In circumstances where the respondent has not established any of its grounds for contending that there was a public interest consideration against disclosure, it is not strictly necessary for the Tribunal to weigh the considerations in favour of disclosure against those that supported non disclosure. However, the factors in favour of disclosure are clearly weighty and the tribunal repeats those set out at para 73 above and finds they apply to the Exit Presentation.

Information to be released in full

104. To the extent that there might have been some deletions made to the information pursuant to s 74 when it is provided to the applicant, the respondent did not take up the opportunity that was afforded to identify any particular parts of the information that it contended were the parts that gave rise to the public interest arguments it raised. In those circumstances, there is no basis upon which the Tribunal could direct that release be in any form other than in full

Orders

1. The decision under review is set aside. The applicant is granted access in full to the information the subject of the application.

2. Order 3 of the orders made on 14 April 2025 pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) is vacated.

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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: 23 June 2025