EHW v Secretary, Department of Education

[2022] NSWCATAD 140

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EHW v Secretary, Department of Education [2022] NSWCATAD 140

Hearing dates:

21 December 2021

Date of orders:

16 May 2022

Decision date:

16 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Gracie, Senior Member

Decision:

1. Affirm the respondent’s Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 to:

a. refuse the applicant access to the information referred to in the Decision Schedule;

b. refuse to deal with those parts of the Access Application in reliance on s 60(1)(d) of the Government Information (Public Access) Act 2009 (NSW).

2. The correct and preferable decision in the Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 is to refuse to deal with those parts of the Access Application in reliance on s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW).

Catchwords:

ADMINISTRATIVE REVIEW - government information (public access) - conclusive presumption against disclosure – privileged communications – care and protection of children - public interest in favour of disclosure – personal information - information concerning applicant’s children - public interest against disclosure – disclosure that may prejudice the agency’s functions – disclosure that may reveal personal information – disclosure that may expose a person to risk of harm, serious harassment or intimidation – where disclosure not in the best interests of a child - information protection principle and meaning of public disclosure - balancing of public interests – public interest test - overriding public interest against disclosure – agency’s discretion to refuse to deal with access application – information previously produced under subpoena – unreasonable and substantial diversion of resources

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Inclosed Lands Protection Act 1901 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185

Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60

Commissioner of Police v DYD [2020] NSWCATAP 224

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

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAD 19

Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48

Department of Education and Communities v VK [2011] NSWADTAP 61

Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29

ECN v Commissioner of Police (NSW) [2020] NSWCATAD 153

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

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

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Head v Commissioner of Police (NSW) [2010] NSWADT 27

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Jenkinson v Department of Education and Communities [2013] NSWADT 280

Kanak v NSW Department of Education [2017] NSWCATAD 206

Learmouth v Secretary Department of Education [2020] NSWCATAD 109

Leech v Sydney Water Corporation [2010] NSWADT 298

Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46

Medlyn v Commissioner of Police [2020] NSWCATAD 125

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Miskelly v Secretary, Department of Education [2019] NSWCATAD 48

Nasr v New South Wales (2007) 170 A Crim R 78

Office of Finance and Services v APV and APW [2014] NSWCATAP 88

Raven v University of Sydney [2015] NSWCATAD 104

Singh v Legal Aid Commission (No 2) NSWCATAD 5

Snape v Commissioner of Police [2022] NSWCATAP 63

Taylor v Destination NSW [2017] NSWCATAD 272

The Application of the Attorney General of NSW (2014) 341 ALR 340

Thomson v Commissioner of Police [2021] NSWCATAD 53

Transport for NSW v Searle [2018] NSWCATAP 93

Woolley v Lismore City Council [2013] NSWADT 10

YG and GG v Minister for Community Services [2002] NSWCA 247

Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175

Category:

Principal judgment

Parties:

EHW (Applicant)
Secretary, Department of Education (Respondent)

Also heard:
Dr K Johnson, Guardian ad Litem for EHW

Representation:

Counsel:
P Lange and J Rogers (Applicant)

Solicitors:
Quill Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/62204

Publication restriction:

1. Order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the confidential evidence, confidential submissions and the record of that part of the proceedings conducted in private on 21 December 2021 are confidential and are not to be released to either the applicant, his appointed Guardian ad litem or the public.

2. Order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the parts of these Reasons marked "Not for Publication" are confidential and are not to be released to the applicant, his appointed Guardian ad litem or the public.

3. Order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the applicant in these proceedings and those names specified in the Confidential version of these Reasons is prohibited and the name of the applicant will be referred to by pseudonym 'EHW' in the Tribunal's published reasons [2022] NSWCATAD 140.

REASONS FOR DECISION

Introduction

1. These proceedings concern requests by EHW (applicant) made to the Secretary, Department of Education (respondent) for the release of documents under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) relating to himself and his children from their time as students at [the school] between January 2017 and November 2018. For convenience I have referred to the Department of Education as the “the Department” or “agency”.

2. In mid to late 2018, the applicant was involved in a number of incidents involving staff at [the school] that resulted in him being denied entry to the school pursuant to the Inclosed Lands Protection Act 1901 (NSW) (Inclosed Lands Protection Act).

3. On 17 July 2019, the applicant served on the respondent an Access Application under the GIPA Act to release documents to him. The respondent challenged the validity of the Access Application. The applicant then amended his Access Application on 8 August 2019.

4. In a decision dated 2 September 2019 (Original Decision), the respondent refused to deal with the (amended) Access Application, relying on s 60 (1)(d) and (e) of the GIPA Act because the documents sought by the applicant were subject to a subpoena or otherwise available to him pursuant to a court order and/or the applicant was a party to current court proceedings and could apply to the court for such documents.

5. On 16 December 2019 in District Court proceedings 2018/361833 (District Court proceedings), the applicant served on the Department a subpoena for production of documents. Certain documents were produced by the Department on 21 February 2020. On 5 March 2020, general access was granted by the court to the documents produced by the Department.

6. On 26 September 2019, the applicant sought an internal review of the respondent's Original Decision. On 21 November 2019 and again on 15 December 2019, the parties agreed to further amend the Access Application. A further amended access application (Access Application) was finally agreed between the parties on 15 December 2019 for:

All information already searched for and collated by [the school] about myself and my children.

7. On 30 January 2021, the respondent issued its Internal Review Decision that upheld the respondent's Original Decision based on the refusal under s 60(1) (d) and (e) of the GIPA Act to disclose the documents sought by the applicant.

8. On 25 February 2020, the applicant filed in the Tribunal an Application for Administrative Review (Application) of the respondent's Internal Review Decision dated 30 January 2020. The sole ground stated for the Application was that the "decision is wrong".

Procedural Directions

9. On 20 October 2020, the Tribunal remitted the Internal Review Decision to the respondent for reconsideration.

10. On 8 December 2020, the respondent affirmed part of the Internal Review Decision, provided access to some of the information sought by the applicant (a bundle of approximately 993 pages of documents) and refused to provide access to some of the information based on an overriding public interest against disclosure (Further Decision).

11. On 9 March 2021, at the request of the respondent, the Tribunal remitted the Further Decision because the Department acknowledged that it had erroneously believed that a bundle of documents (approximately 1659 pages) had been produced in answer to the subpoena for production served on 16 December 2019 in the District Court proceedings when only 232 pages of that bundle of documents had in fact been produced. It was that 1659 page bundle of documents that the respondent had relied upon to refuse to deal with some of the information in the Further Decision.

12. In response to the Tribunal's orders of 20 October 2020 and 9 March 2021, the respondent provided its reconsideration of the Further Decision in a Notice of Decision dated 15 April 2021. The 15 April 2021 Notice of Decision was filed in the Tribunal on 16 April 2021 and the documents to be released to the applicant were provided to him on 16 April 2021.

13. On 20 April 2021, the applicant confirmed to the Tribunal and the respondent his intention to seek a review of the 15 April 2021 Notice of Decision (reviewable decision).

14. On 3 May 2021 the Tribunal appointed Dr Katherine Johnson as guardian ad litem (GAL) for the applicant.

Legal principles

15. The legal principles under consideration are not in dispute.

16. The Application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

17. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

3. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

4. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   18. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

Government Information (Public Access) Act 2009 (NSW)

19. In respect of access applications, s 9 (1) of the GIPA Act relevantly provides:

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.

20. The Notice of Decision dated 15 April 2021 is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act.

21. In an administrative review under s 100 of the GIPA Act, in this case there are several provisions of the GIPA Act of particular relevance to the Tribunal's consideration of the Reviewable Decision.

22. Section 5 of the GIPA Act provides:

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

23. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

24. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

25. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

26. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

27. Section 14 relevantly provides:

1. Public interest considerations against disclosure

2. 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.

3. 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.

4. The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

   28. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

   29. Section 53 provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

30. Section 55 pertains to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. Section 55 states:

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.

31. Section 73 requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

32. Section 105 of the GIPA Act places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

Grounds relied upon by the respondent

33. The Reviewable Decision contained a "Schedule" that identified the documents (by reference to page numbers) not provided to the applicant and the grounds relied upon by the respondent to refuse access (Decision Schedule).

34. The respondent relied upon three broad categories under the GIPA Act to have the Tribunal affirm the Reviewable Decision and refuse the release of further information to the applicant. These are (in the order relied upon by the respondent):

Firstly, a conclusive presumption against disclosure

35. The first concerns certain "conclusive presumptions" of an overriding public interest against disclosure in sch 1 of the GIPA Act. Those grounds concern matters involving:

1. Clause 5 of sch 1: client legal privilege or legal professional privilege;

2. Clause 10 of sch 1: care and protection of children under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act).

Secondly, public interest considerations against closure

36. The second ground concerns "public interest considerations" against disclosure under s 14 (2) of the GIPA Act and the s 14 Table. Those grounds are referrable to:

1. clauses 1(d) and 1(f) of the s 14 Table: that disclosure may prejudice the supply of confidential information that facilitates the effective exercise of the agency's functions or prejudice the effective exercise of the agency's functions;

2. clause 3(a) of the s 14 Table: that disclosure may reveal an individual's personal information;

3. clause 3(b) of the s 14 Table: that disclosure may contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) or a health privacy principle under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act);

4. clause 3(f) of the s 14 Table: that disclosure may expose a person to a risk of harm, serious harassment or intimidation;

5. clause 3(g) of the s 14 Table: that disclosure is not in the best interests of the child.

Thirdly, a refusal to deal with the Access Application under s 60 of the GIPA Act

37. The third ground raised by the respondent is under s 60 of the GIPA Act. That section permits an agency to exercise its discretion to refuse to deal with an access application in certain circumstances. The grounds relied upon by the respondent under s 60 of the GIPA Act are:

1. s 60(1)(a): that dealing with the Access Application would require an unreasonable diversion of the Department’s resources;

2. s 60(1)(d): that the information sought is or has been the subject of a subpoena or court order for the production of documents and is available to the applicant.

Parties' Submissions

38. The respondent lodged three sets of written submissions:

1. the first was a submission of 202 paragraphs dated 2 July 2021 (submissions in chief).

2. the second submission was dated 27 August 2021 (Reply Submissions) and was in reply to written submissions dated 12 August 2021 served by the GAL on behalf of the applicant.

3. the third submission by the respondent was dated 20 December 2021 (Further Reply Submissions) and was in reply to the applicant's written submissions dated 3 December 2021 (lodged on 10 December 2021).

39. The applicant's written submission that was prepared by his counsel for the hearing was dated 3 December 2021 (applicant’s submission). That written submission reflects the oral submissions advanced by his counsel at the hearing. I have therefore mostly had regard to those submissions of 3 December 2021 and the accompanying oral submissions in understanding the case advanced on behalf of the applicant, rather than the earlier written submission made on behalf of the applicant by the GAL dated 12 August 2021, before the applicant retained counsel.

40. The applicant did not lodge or seek to rely on any evidence.

41. In summary, and dealing with the grounds that are challenged in the order that the respondent has raised them as set out above, the applicant contends (using the sub-headings in the applicant's written submissions of 3 December 2021) that:

The claim for client legal privilege and legal professional privilege

1. the respondent (who bears the onus) has failed to establish "that proper confidence was maintained in any (alleged) advice passing between officers of the respondent, primarily in chains of emails;

2. some of the communications do not involve lawyers and includes "recipients ... outside of the organisation deemed to be the client",

3. the respondent has not established why the advice was sought and that the dominant purpose of the communication was for the purpose of seeking legal advice;

4. the mere fact that a communication involves a solicitor does not demonstrate that legal professional privilege attaches to that communication.

Public interest considerations in favour of disclosure

1. significant weight should be given to the statutory presumption in favour of disclosure, particularly where the information concerns an applicant's child or children;

2. the respondent ought to have had proper regard to the definition of "personal information". A "factor in favour of disclosure is an applicant's personal information or the personal information of a child, where the applicant is the child's parent and the disclosure of the information is reasonably considered to be in the child's best interest": citing the Commonwealth Information Commissioner's Freedom of Information Guidelines (Commonwealth FOI Guidelines).

Unreasonable diversion of resources

1. in response to the respondent stating that there could be a further 612 pages that may be responsive to the Access Application but that further processing of the Access Application would be a substantial diversion of the Department's resources, even if further time was needed to be spent on the request, it could not be considered "excessive" when it is the result of the respondent's own mistakes in considering its own material and where the respondent does not seem to know whether the documents have been produced to the applicant pursuant to a subpoena;

2. section 60(1)(d) of the GIPA Act cannot apply where there are or may be documents that have not been produced to the applicant pursuant to the subpoena previously issued by him.

Personal information

1. as set out above, the applicant relied upon the Commonwealth FOI Guidelines in regard to the meaning of “personal information” but in relation to documents withheld by the respondent on the grounds that they contain “personal information”, the applicant did not press for the release of “private information, such as telephone numbers";

2. in the case of the respondent's reliance on the evidence of Detective Sergeant (Det Sgt) McQueen, the applicant contended that in all except one case, the respondent has previously disclosed the identity of the maker of a statement provided to police and many of the "final versions of various statements and documents has already been provided to the applicant in other proceedings."

Matters not Pressed

1. the release of any documents withheld in reliance on the Care and Protection Act was not pressed by the applicant on the proviso that the Tribunal review those claims to be satisfied that they properly come within the scope of cl 10 of sch 1 of the GIPA Act;

2. the applicant did not press the matters in respect of cl 3(g) of the s 14 Table, namely that disclosure was not in the best interests of a child.

Respondent's evidence

42. The respondent lodged and relied upon the following evidence in support of her contention that the Tribunal should affirm the Reviewable Decision to refuse access to the information withheld by the respondent:

1. affidavit of Jenni Pendergast of 1 July 2021: Exhibit A. Ms Pendergast is the Principal Information Access Officer/Manager, Legal Services Directorate of the Department;

2. affidavit of Matthew McQueen of 1 July 2020 (Exhibit B) together with a confidential version of that same affidavit (Confidential Exhibit B). Det Sgt McQueen is assigned to the Fixated Persons Unit of the NSW Police Force (the Police);

3. affidavit of Mark Barraket of 20 May 2021 (Exhibit C) together with a confidential version of that same affidavit (Confidential Exhibit C). Mr Barraket is the Executive Director of School Performance at the Department;

4. affidavit of Alex Sakis of 1 July 2021 (Exhibit D) together with a confidential version of that same affidavit (Confidential Exhibit D);

5. report of Ms Mina Candalapas dated 15 May 2021: Confidential Exhibit E (tendered on that confidential basis with the applicant's consent). [Not for Publication];

6. the Reviewable Decision dated 15 April 2021 including the Decision Schedule and the bundle of documents in the redacted form released to the applicant: Exhibit F. Confidential Exhibit F is the same bundle of documents in an unredacted form that was not released to the applicant but was referred to in the private hearing that was held with the respondent’s legal representative (as discussed below);

7. affidavit of Tram Nguyen of 25 August 2021: Exhibit G. Ms Nguyen is a solicitor employed by the Crown Solicitor of NSW and has the carriage of this matter on behalf of the respondent;

43. I acknowledge that I derived considerable assistance in considering the evidence adduced by the respondent by the extensive cross referencing and footnotes in the respondent’s written submissions.

Confidential exhibits, confidential submissions and hearing in private

44. During the hearing, a private session was held with Ms Nguyen, in accordance with s 107(2) of the GIPA Act. That sub-section provides that at a hearing on review, where the Tribunal is satisfied that it is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure, the Tribunal is required to receive that information and any submissions in confidence and in the absence of the public, the applicant and his or her representative(s).

45. I reviewed the confidential exhibits referred to above and received oral submissions from Ms Nguyen during the private session, having particular regard to the confidential bundle of documents comprising Confidential Exhibit F.

46. I made a suppression order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the release of the confidential evidence, confidential submissions and the record of that part of the proceedings conducted in private on 1 February 2021, to either the applicant or to the public.

47. In addition, I have made an order for non-publication of those parts of these Reasons marked "[Not For Publication]” that are confidential and are not to be released to the applicant or to the public.

Applications to Anonymise Certain Names

48. Immediately prior to the publication of these Reasons, the applicant informed the Tribunal by an email that he requested further consideration of the adequacy of the respondent’s disclosure in light of new information of which the applicant said that he only became aware after the hearing of his Application. The email from the applicant did not explain or provide any particulars of that new information or its specific relevance to the matters raised by his Application. The applicant’s request was not prepared by his appointed legal representatives who appeared on his behalf at the hearing or his GAL. Neither his legal representatives, the GAL or the respondent were copied into the email received by the Tribunal.

49. The applicant was informed by the Tribunal that publication of these Reasons was imminent and that if any application as outlined by the applicant in the email was to made, it should made by the applicant’s lawyers or the GAL and done so urgently.

50. Nothing further was received by the Tribunal in respect of the matters outlined in the applicant’s email referred to above. However, there was an Application for Miscellaneous Matters made by the applicant and requests received by email from the applicant and the GAL [Not For Publication] to either anonymise certain names in the Reasons beyond the confidentiality and non-publication orders previously made at the hearing or restrict the publication of the Reasons entirely.

51. The respondent was afforded the opportunity of providing a response to those requests. The parties were asked if they had any objection to the Tribunal dealing with these matters on the papers under s 50(2) of the NCAT Act. Neither party notified the Tribunal of any objection to that course.

52. The respondent provided a written submission received on 10 May 2022. The submission traversed many issues raised by the various late applications for anonymisation. Those matters need not be addressed for present purposes. Suffice to state that the respondent “neither opposes or consents” to the making of orders to anonymise certain names in the Reasons before publication. Given the content of the respondent’s submissions and the issues raised for anonymisation, and without any confidentiality redactions being made to those submissions, I direct that the respondent’s submissions received on 10 May 2022 in their entirety, be accepted on a confidential basis and be marked “Confidential”.

53. I am satisfied that in balancing the interests of open justice with the considerations for the making of an order for non-disclosure and non-publication in this case, a limited form of protection is warranted and preferable to a complete restriction on publication.

54. I therefore make a further order under s 64(1)(a) to prohibit the disclosure and any reference to the applicant’s name and the name [Not for Publication of the School. I am satisfied that such an order is in the best interests of [Not for Publication]. I am also satisfied that the requests for anonymisation are based on serious concerns in relation to the safety, well-being and privacy of certain people if an order for anonymisation of those persons was not made. In the circumstances, these Reasons have now be amended before publication to anonymise [Not for Publication the names of EHW and the School] The other requests for the anonymisation of certain names need not be ordered as those names do not feature in these Reasons.

Consideration

Conclusive presumption against disclosure

Privilege

55. The first issue for consideration is whether there are certain "conclusive presumptions" that constitute an overriding public interest against disclosure under sch 1 of the GIPA Act. This first ground concerns the disputed claim for withholding production by reason of client legal privilege or legal professional privilege under cl 5 of sch 1.

56. In relation to the claims of privilege, I include both client legal privilege and legal professional privilege as provided by cl 5 of sch 1 in the GIPA Act. For the reasons that follow, I am satisfied that it was open to the respondent to withhold information from the applicant in reliance upon those grounds where privilege was claimed.

57. The pages of the Decision Schedule in respect of which the respondent claimed privilege were identified by the respondent in paragraph 76 of the submissions in chief, namely:

Pages 1, 2, 3, 6, 9, 11, 12, 16, 19, 20, 29, 31, 36, 38-40, 43, 45-53, 55-57, 64-65, 68, 75-76, 82, 84-85, 87-89, 91-96, 98-99, 107, 115, 119-120, 128, 136, 165-166, 168-170, 234, 277-278 and 282 (collectively, the privilege documents).

58. In dealing with the respondent’s contentions, it is convenient to set out in full, paragraphs [76]-[85] of the respondent’s submissions in chief:

76. … [the privilege documents] contain communications between the Legal Services Directorate of the Department and/or senior school staff at [the school] Public School, the relevant Director, Educational Leadership for [the school] Public School, the relevant Executive Director, School Performance for [the school] Public School, the relevant Director, Office of the Deputy Secretary, School Performance for [the school] Public School and a director of the Health and Safety Directorate of the Department.

77. Pages 2-3, 6, 39-40, 47-48, 50-51, 53 and 136 are emails containing a request for advice and/or the advice provided in relation [Not for Publication].

78. Pages 1, 9, 16, 29, 31,36, 38-39, 43, 45, 64-65, 68,75-76, 107, 119-120, 128, 166, 169-170, 234, 277-278 and 282 are emails containing requests for advice and/or the advice provided in relation to [Not for Publication]

79. Pages 11, 12, 19-20, 45-47, 49-50, 52-53, 55-57, 115, 165 and 168-169 are emails containing requests for advice, the provision of information relevant to that advice and the advice provided in relation to [Not for Publication].

80. Page 165, 168-169 also contains a request for advice and/or the advice provided regarding [Not for Publication].

81. Pages 82, 84, 85, 87-89, 91-96, 98-99 are emails containing requests for advice and/or the advice provided in relation [Not for Publication]

82. Legal officers employed in the Legal Services Directorate are required to hold a current practising certificate and expected to provide impartial and independent legal advice to the Department [citing the affidavit of Jenni Pendergast (Ex A) at [39] and annexure N].

83. The respondent submits that it is apparent from an examination of the information on those pages referred to above at [76] that the redacted information is privileged within the meaning of cl, 5(1) of Sch, 1 to the GIPA Act. That is, it [sic] clear that:

a. the communications were between a lawyer (Bessie Fainnu, Margaret Baker and Sarah Hargans of the Legal Services Directorate) and client (Mr Barraket, Nicole Molloy, Serena Petriella, Leanne Garber, Mr Sakis, Rod Megahey and Sylvia Corish);

b. the communications reveal the nature of the legal advice sought from or provided by the Legal Services Directorate; and

c. the communications were for the dominant purpose of providing legal advice.

84. The respondent has not expressly waived her privilege in relation to the information contained in the documents. Nor is there any evidence to suggest that the respondent acted inconsistently with maintaining that privilege.

85. Therefore, the respondent submits that the Tribunal would be satisfied, with respect to the information referred to above at [76], that it is to be conclusively presumed that there is an overriding public interest against disclosure of the information.

59. I do not accept the applicant’s submission that a communication between staff employed at [THE SCHOOL] and the Department involves a communication outside the “organisation” where the Department is deemed to be the client. I agree with the respondent that [THE SCHOOL] does not have a legal identity separate from the Department, which itself does not have a separate legal identity from the Crown. The [THE SCHOOL] staff are in the employment and ultimately under the direction and control of the respondent as the Head of the Department. In my view therefore, a communication between staff within the Department for the purpose of exercising a supervisory role or providing guidance to staff employed at [THE SCHOOL] does not involve a communication outside the Department or cause that communication to lose its otherwise confidential character.

60. I am satisfied that the respondent has established that proper confidence was maintained in respect of the privilege documents (including legal advice), that mostly comprise email chains passing between officers of the Department, including lawyers in the Legal Services Directorate, for the dominant purpose of seeking and discussing legal advice.

61. I am therefore satisfied that the privilege documents attract the conclusive presumption against disclosure claimed by the respondent under cl 5 of sch 1 of the GIPA Act.

Care and Protection Act

62. As stated above, the applicant did not press for the release of any documents withheld in reliance on the Care and Protection Act under cl 10 of sch 1 of the GIPA Act. However, as requested by the applicant, I have reviewed the documents withheld by the respondent under cl 10 of sch 1.

63. For the reasons discussed below, I am satisfied that the redacted information in pages 42, 143-161, 218, 224, 238, 241 and 245 in the Decision Schedule (collectively the Care and Protection Act documents) attract the conclusive presumption against disclosure under cl 10 of sch 1 of the GIPA Act.

64. The first of the issues in relation to the Care and Protection Act documents is the respondent’s contention that pursuant to cl 10 of sch 1 of the GIPA Act, there is an overriding public interest against disclosure of information contained in a report to which s 29 of the Care and Protection Act applies since they are the contents or extracts of a report made by a person in relation to a “child” or “class of children”.

62. Sections 24 and 27 of the Care and Protection Act provides for s 29 reports to be made to the Secretary, Department of Communities and Justice, concerning a child or young person, or a class of children or young persons, “at risk of significant harm” (which is defined in s 23).

63. Section 27(l) of the Care and Protection Act provides for mandatory reporting by “mandatory reporters” in the case of a child “at risk of significant harm”. These “mandatory reporters” include "a person who, in the course of his or her professional work ... delivers ... education [and] children's services ...wholly or partly, to children" and "a person who holds a management position in an organisation the duties of which include direct responsibility for, or direction supervision of, the provision of...education [and] children's services...wholly or partly, to children".

64. An alternative reporting arrangement is provided by s 27A of the Care and Protection Act. Section 27A(5) provides that a mandatory reporter may (subject to certain conditions and arrangements) refer a matter to an assessment officer in which case s 27A(7) provides that certain protections provided by s 29 will apply to such a referral.

65. I accept the evidence of Mr Sarkis in Exhibit D at [22] to [25] which explains how the respondent is a "relevant agency" under s 27A of the Care and Protection Act and that assessment officers employed in the Department's Child Wellbeing Unit are regarded as "assessment officers" for the purposes of s 27A of the Care and Protection Act. Therefore, any report by a mandatory reporter to the Child Wellbeing Unit is a "referral of a matter to an assessment officer" and a "report" to which s 29 may apply.

66. As the respondent submitted, the purpose of s 29 is to "provide protections to persons who make reports in good faith ... concerning children or young persons who are at risk of harm or are homeless ... for the obvious reason that persons criticised or otherwise referred to in such reports may visit consequences on the reporter and the prospect of that occurring may deter or inhibit persons from making reports": citing The Application of the Attorney General of NSW (2014) 341 ALR 340 at [24].

67. I am satisfied that the referral of a matter to an assessment officer in accordance with s 27A is a report for the purpose of s 29 of the Care and Protection Act.

68. Having reviewed the information contained in the pages of the reports made to the Department referred to at [95]-[98] of the respondent’s submissions in chief, I accept the respondent submissions at [95] to [98] that:

95. Pages 42, 144, 218, 238, 224 and 241 contain information that was the subject of a report to the Child Protection Helpline operated by the Department of Family and Community Services (‘FACS'), now the Department of Communities and Justice.

96. Page[s] 143,158 and 161 are correspondence or documents from FACS regarding reports made to it, setting out the details of the reporter and some details of the report, received by FACS.

97. Pages 145-I46 and 160 contain the answers provided in completing the mandatory reporter guide, which recommended a report be made to the Child Wellbeing Unit.

98. Page[s] 151-152, 156-157 and 159 contain the answers provided in completing the mandatory reporter guide, which recommended a report be made to the Child Protection Helpline.

72. In relation to the above paragraphs, the respondent submitted at [99] of the submissions in chief that the above reports made to the respondent come within s 29 of the Care and Protection Act because:

…

1. the pages referred to at [95]-[96] state that a report was made in relation to the information contained therein and/or contain engagement or reference numbers;

2. the mandatory reporter guide requires staff to answer several questions about the circumstances of a child or young person to help them assess the level of risk of harm and therefore the answers to the question would likely reflect the information contained in any report made;

3. the date on pp. 145-146 and 160 of the mandatory reporter guide recommendation to call the Child Wellbeing Unit coincides with the date for when a mandatory reporter guide recommendation was provided for an incident recorded on pp, 238 and 262, which was noted to have resulted in a call to FACS. Therefore, the Tribunal should infer that a report was made containing the information in the mandatory reporter guide;

4. the date on pp, 156-157 and 159 of the mandatory reporter guide recommendation to report to the Child Protection Helpline is the same date that a report was disclosed to have been made on p. 42. Therefore, the Tribunal should infer that a report was made about the information contained in the answers of the mandatory reporter guide; and

5. pages 151-152 has a handwritten notation that the Child Protection Helpline was called and FACS provided an engagement number. Therefore, the Tribunal should infer that a report was made about the information contained in the answers of the mandatory reporter guide.

73. I accept that submission. Further, at [101] of the submissions in chief, the respondent identified pages 147-I48, 153-155, 238 and 245 of the Care and Protection Act documents that contained information the subject of reports made to the Department’s Child Wellbeing Unit.

74. In relation to those pages at [101] identified by the respondent as containing information in a report made to the Child Wellbeing Unit, the respondent submitted at [102] to [103]:

102. Pages 149-150 contain the answers provided in completing the mandatory reporter guide, which recommended the user to document and continue relationship/monitor. However, on the same day, p, I47 discloses that a phone call was made to the Child Wellbeing Unit about the same child.

103…

(a) the pages referred to at [101] state that a call or report was made to the Child Wellbeing Unit in relation to the information contained therein and/or contain relevant reference numbers; and

(b) the date on pp. 149-150 of the mandatory reporter guide recommendation to document and monitor is the same date that a call to the Child Wellbeing Unit in relation to the same child was noted to have been made in p. 147. Therefore, the Tribunal should infer that a report was made about the information contained in the answers of the mandatory reporter guide.

75. I agree that the information contained in the pages referred to in [101] of the respondent’s submissions in chief should be taken to have been made to the Child Wellbeing Unit for the purposes of s 29 of the Care and Protection Act and to invoke the protections afforded by s 29. Further, I am satisfied in the circumstances, that it is to be conclusively presumed pursuant to cl 10 of sch 1 of the GIPA Act that there is an overriding public interest against disclosure of that information comprising the Care and Protection Act documents.

Public Interest Test: s 13 GIPA

76. Where there is no conclusive presumption against disclosure in relation to disputed information, as stated above, s 13 of the GIPA Act requires the Tribunal to determine whether, “on balance” there are public interest considerations in favour of disclosure which outweigh the public interest considerations against disclosure.

77. In Transport for NSW v Searle [2018] NSWCATAP 93 at [104], the Appeal Panel held that the application of the public interest test requires a broad value judgment to be made, having regard to the objects of the GIPA Act, the general presumption in favour of disclosure of government information, and the following principles set out in s 15 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.

Considerations in favour of disclosure

78. Section 12(1) of the GIPA Act provides that “there is a public interest in favour of the disclosure of government information”. Section 12(2) of the GIPA Act provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.

79. The respondent contended that there were two public interest considerations that arise in favour of disclosure relevant to the information contained in the Decision Schedule, namely:

1. the general public interest in favour of the disclosure of government information, relying on ss 3 and 12(1) of the GIPA Act; and

2. that some of the information sought is the personal information of the applicant or information relating to the applicant's children, referring to s 55(1)(a) and (2) and “point (d)” of the legislative note to s 12(2) of the GIPA Act that provides, as an example, “personal information” as a public interest consideration in favour of disclosure.

80. In his submissions at [6] and [7], the applicant generally accepted the application of those two broad principles in respect of the public interest considerations that arise in favour of disclosure (and he did not suggest any additional factors).

81. The Appeal Panel has found that the weight to be attributed to the first of those two considerations will depend on the “functions of the agency to which the access application is directed, and the character of the information”: Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 at [52]. I accept the respondent’s submissions in chief at [109] to [111] in relation to the first consideration:

109. In this case, the information sought in the Amended Access Application might shed light on the applicant's children's academic performance, behaviour and interactions at [the school] Public School and how various stakeholders within the Department and the other government agencies interact to manage the applicant's conduct and the impacts it had on members of the [the school] Public School community.

110. Some light has already been shed to the applicant about this from:

a. the information already available to the applicant in the 1163 pages of documents produced under the 16 December 2019 Subpoena and the 14 April 2020 Subpoena [which are discussed later in these Reasons in the context of the evidence of Ms Pendergast] which is a personal factor of the applicant that may be taken into account under s. 55(1)(c); and

b. the 124 pages of information that have been released in response to the Amended Access Application without redactions under the 15 April 2021 Decision.

111. Accordingly, it is submitted that this consideration in favour of disclosure should be accorded less weight or be more readily outweighed in applying the public interest test to the information contained in the 257 pages in dispute in these proceedings.

82. As to the second consideration, namely that some of the information sought by the applicant is his personal information or information relating to his children, both parties accept that prima facie, significant weight is to be accorded in favour of a parent being made aware of information held by an agency about him or her with respect to his or her children.

83. The applicant also submitted that significant weight should be given to the statutory presumption in favour of disclosure where the information concerns his children by reference to the Commonwealth FOI Guidelines. The applicant submitted that the respondent ought to have had regard to the definition of "personal information" in the Commonwealth FOI Guidelines, in particular that a "factor in favour of disclosure is an applicant's personal information or the personal information of a child, where the applicant is the child's parent and the disclosure of the information is reasonably considered to be in the child's best interest".

84. In Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 at [47], the Tribunal gave significant weight to the fact that while the parent in that matter did not have custody of his children because they lived with his former partner, he retained parental responsibility over them.

85. The respondent submitted that there is no evidence in these proceedings that the applicant has parental responsibility over his children or for any such inference to be made that he has such control.

86. The respondent’s Further Reply Submissions, which I accept, stated at [5] to [7]:

5. It is significant whether or not the applicant has parental responsibility over his children, because it is the existence of that responsibility which is the basis upon which the common law assumes a parent will act in the best interests of the child (citing The Secretary, Department of Health and Community Services (NT) v JWB & SMB (1992) 175 CLR 218 at 239-240).

6. The Commonwealth Freedom of Information Guidelines, which the applicant seeks to rely on, merely acknowledge that a parent seeking access to their child’s information where the disclosure is in the child’s best interests is a factor in favour of disclosure for the purposes of the Freedom of Information Act 1982 (Cth). It does not advance the applicants submission that the Tribunal should accord the public interest consideration great weight in the context of the GIPA Act. If anything, the guidelines work against the applicant’s submission because they only recognise there to be a public interest consideration in favour of disclosure when the disclosure is in the best interest of the child for their information to be disclosed to their parent.

7. In circumstances where the Tribunal ought to conclude that the applicant does not have parental responsibility over his children, the Tribunal could not be satisfied that the disclosure of their personal information to the applicant would be in their best interests. Accordingly, insofar as the Tribunal accepts that the public interest consideration in favour of disclosure applies in the manner formulated by the applicant, the respondent submits that the Tribunal would be satisfied that it should be given little weight.

87. I therefore find that other than the rebuttable statutory presumptions in favour of disclosure, the applicant’s “personal” factors in favour of disclosure should only be afforded moderate weight.

Considerations against closure: s 14(2) and the s 14 Table

88. The s 14 Table sets out the only considerations against disclosure that may be taken into account by a respondent in applying the public interest test. As set out above, there are five separate grounds relied upon by the respondent to refuse disclosure that are referrable to consideration listed in the s 14 Table.

1. Clause 1(d) and (f)

89. The first ground raised is under cll 1(d) and (f) of the s 14 Table. For convenience, these are dealt with together because they are closely related. Clause 1(d) deals with circumstances where disclosure may prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions and cl 1(f) is concerned with disclosure that may prejudice the effective exercise of the agency's functions.

90. The information to which cll 1(d) and (f) applies, includes:

1. emails between senior staff at [THE SCHOOL], the Director, Educational Leadership for [THE SCHOOL], the Executive Director, School Performance for [THE SCHOOL], the Director, Health and Safety Directorate of the Department and/or members of the Police;

2. file notes of interactions involving the applicant at [THE SCHOOL]; and

3. incident reports involving the applicant at [THE SCHOOL].

91. At paragraph [128] of the respondent’s submissions in chief, the respondent identified the following pages of the Decision Schedule for which she contends the considerations in cll 1(d) and (f) of the s 14 Table apply:

Pages 1, 7, 10, 13, 15, 17, 21-22, 23-24, 27, 29, 32, 33-35, 58, 62, 66-67, 77, 82-83, 90-91, 95, 103, 105-108, 110, 112-113, 132-135, 137, 163, 164, 167-168, 204-205, 216, 224 226-232, 234-236, 238, 241-244, 246, 248-251, 256, 259, 262, 272-274, 276, 280, 282, 294, 298, 300, 303, 305-308, 312, 316-317, 321, 351, 354, 356, 359-360, 363, 368 and 374-377 (referred to for convenience as the “paragraph [128]” pages).

92. There are some minor discrepancies between the list in the respondent’s submissions at paragraph [128] and the affidavit evidence lodged on behalf of the respondent. For example, in support of the grounds raised by cll 1(d) and (f), Mr Sarkis in his affidavit (Exhibit D) refers to pages 17-18 (only page 17 is listed in the submissions at [128]) and pages 252-253 (these are not listed in the submissions at [128]). Under the grounds raised by cll 1(d) and (f), Mr Barraket in his affidavit (Exhibit C) refers to page 18 (but not page 17 listed in the submissions at [128]) and page 253 (which is not listed in the submission at [128] but is referred to by Mr Sarkis, as well as page 252 - although Mr Barraket does not mention page 252).

93. Having reviewed the pages identified above, and compared them to the Decision Schedule, I am satisfied that the position set out in the respondent’s submission in chief is correct and align with the reasons encompassed by cll 1(d) and (f) of the s 14 Table set out in the Decision Schedule. Given the volume of material that the respondent’s witnesses have dealt with in their affidavit evidence, it is understandable that there may be some errors of detail and I do not find that these matters detract from the overall reliability of the affidavit evidence adduced by the respondent’s witnesses.

94. By reference to the paragraph [128] pages, the respondent submitted, uncontroversially in my view, that the Department has the following relevant functions:

1. to provide educational services to students in government schools, including managing issues that arise from day-to-day school operations;

2. to ensure the health and safety, welfare and wellbeing of its staff and students, including by:

1. providing and maintaining a work environment without risk to health and safety under Pt 2 of the Work Health and Safety Act 2011; and

2. complying with its child protection obligations under the Care and Protection Act by recognising and identifying safety, welfare and wellbeing concerns early on to provide effective care and protection; and

3. to manage and investigate complaints made about school and departmental staff.

95. I do not accept the applicant’s submission at [24] that the functions of the Department, including [THE SCHOOL], does “not extend to special processes or procedures that need to be shielded from persons who would abuse that knowledge”.

96. The applicant’s submissions contended at [24] that the Department's functions “can be contrasted with those of other governmental agencies where confidential information is deserving of protection, such as the procedure for the installation of surveillance devices. The State has a legitimate interest in protecting such procedures. The same cannot be said in respect to the Department, which can be described as exercising functions of an administrative nature.”

97. Given the clear interplay of child protection obligations and the means to ensure the health and safety of Department employees in the workplace, including by the proper conduct by the Department of its investigative functions, I am satisfied that the functions of the Department (including [THE SCHOOL] staff), includes special processes or procedures for the protection of persons from those who may abuse knowledge of those special processes or procedures. The unchallenged evidence of Mr Sarkis (in both Exhibit D and Confidential Exhibit D) explained those specific Departmental processes and procedures, which I accept.

95. In relation to the respondent’s concern that the disclosure of information in some of the paragraph [128] pages may prejudice the respondent’s role in dealing with possible criminal conduct and supplying information to the Police and welfare agencies, Det Sgt McQueen said at paragraph 15 of his affidavit (Exhibit B and Confidential Exhibit B):

15. I have been provided with copies of pages 1,7, 17, 24, 27, 32, 34, 35, 62, 66, 67, 77, 102, 103,105, 107-110, 112, 113, 117,132-135, 140, 163, 164, 215, 256, 257, 259, 262, 263, 273, 275, 303, 321,359, and 360 referred to in a schedule to the Department of Education's decision of 15 April 2021 (Decision Schedule). I understand that some or all of the information contained in those pages, [Not for Publication] have not been provided to EHW. I believe that the release of the information contained in these pages could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. This is because the [Not for Publication].

99. Det Sgt McQueen referred separately to other documents that were not in the paragraph [128] pages (some of which I mentioned above in relation to the discrepancy with that list and the affidavit evidence). Det Sgt McQueen deposed at paragraphs [16] and [17] of Exhibit B and Confidential Exhibit B (the numbering is out of sequence in the original) as follows:

16. I have been provided with copies of pages 18, 162, 172, 154, 155, 183 and 217 referred to in the Decision Schedule. I understand that some or all of the information contained in those pages, which are emails between [the school] Public School staff and/or me, handwritten notes [Not for Publication] reporting an incident involving EHW, and NSW Police witness statement cover pages containing personal information, have not been provided to EHW. I believe that the release of the information contained in these pages could reveal the identity of an informant or prejudice the future supply to police of information from an informant. While the information contained in pages 154 and 155 were disclosed to EHW in the course of a prosecution after they had been typed up by NSW Police in the brief of evidence, if the handwriting were disclosed, it may lead to the identity of any note writer being established.

17. For example, page 18 reveals or tends to reveal the identity of multiple informants and the disclosure of that page would prejudice the future supply of information from any informant. The page reveals that [Not for Publication] I am particularly concerned that if the contents of the page were disclosed, EHW may take action against those persons and other persons would be reluctant to come forward and report their concerns.

100. In relation to some of those same documents and some additional documents not referred to by Det Sgt McQueen, in the context of the work health and safety obligations of the Department, Mr Sarkis deposed as follows at [27] to [37] of his affidavit (Exhibit D and Confidential Exhibit D):

27. Pages 1,7, 10, 13, 15, I7-I8, 2I-24, 27, 33-35, 77, 90, 106, 108-109, 110, 117, 134-135, 167, 216, 252-253, 272-274, 276, 280, 294, 303, 305-308, 312, 316, 317, 351, 359-360, 363, 368, and 374-377 contain emails between Ms Molloy, Mr Barraket, other School and Departmental staff (including me) and/or Detective Sergeant Matthew McQueen regarding:

a. Mr EHW's circumstances (including the status of his bail application and the court orders in place to protect Mr EHW's children);

b. the requests for advice in relation to Mr EHW's conduct (including safety concerns expressed by School students and staff about Mr EHW);

c. the advice (including strategies) provided to address Mr EHW conduct or manage the risks posed by Mr EHW, including specialist advice from the Legal Services Directorate, Work Health & Safety Directorate, the School Security Unit and the Child Wellbeing Unit; and

d. the actions and steps taken to manage the risks posed by Mr EHW's conduct.

28. Page[s] 66, and 67 contain emails [Not for Publication].

29. Pages 102-104 and 303 (which contains emails that appear on pages 103-104) contain emails from Ms Molloy to Mr Barraket regarding a subpoena that she had received. The redacted part of the email discloses that [Not for Publication].

30. Pages 112-113, I32, L33 contain emails between the School's staff and various police officers in relation to:

a. [Not for Publication]

b. [Not for Publication]

c. [Not for Publication]

31. Page 163 contains a handwritten note by a member of the School's staff recording discussions at a staff meeting about Mr EHW and his children. The redacted information refers to [Not for Publication.

32. Pages 204-205 contains a file note of a meeting between School staff and Sergeant Rohan Hull-Moody. The redacted parts set out [Not for Publication].

33. Page 254 is an email from [Not for Publication]

34. Pages 256-262 contain incident reports created by Department staff members recording numerous incidents involving Mr EHW and the School. The reports contain advice about managing Mr EHW and support measures implemented to assist teachers and staff at the School. The redacted parts of the reports disclose that [Not for Publication]

35. I am concerned that release of the information referred to above at paragraphs 27-34 could prejudice the supply to the Department of information that is required for the Department to discharge its work health and safety obligations. This is because the emails contain discussions between me, police and/or Departmental and School staff about Mr EHW's conduct and managing the risk to staff and students posed by Mr EHW which are sent and received on the understanding that the contents of the emails are restricted to those who need to know. If the contents of those emails were released, I believe that the candid and complete provision of information may be inhibited. This, in turn, could prejudice the effective exercise by the Department of its function of protecting the wellbeing of its students and staff, which greatly depends on having all the information so that the risk can be proactively and accurately assessed.

36. Moreover, I believe that the provision of the information that had been understood to have been provided on a need to know basis will exacerbate the anxiety, stress and fear the staff at the School still have in regard to Mr EHW. This will in turn affect the ability of the staff to perform their educative functions.

37. I am also concerned that, if the contents of the pages referred to above at paragraphs 27-34 were released, the Department's duty to protect its students and staff could be prejudiced. This is because Mr EHW will be able to gain insight into:

a. the risk minimisation measures and strategies taken by the Department, thereby allowing Mr EHW to take steps to circumvent these measures and strategies in the future; and

b. resources that the Department will allocate to certain incidents and when it does so, thereby allowing Mr EHW to take steps to circumvent any future use of those resources.   

101. The applicant contended that the factual context of the non-disclosure of information should be considered, in which case there would be no prejudice caused to the respondent’s functions arising from the release of disputed information to the applicant. At [25] of the applicant’s written submissions, it was submitted that the applicant knows the identity of the persons who made the reports made about him, having been served with documents in respect of apprehended violence orders and child protection proceedings. He also contended that there is no prospect that his children will return to [THE SCHOOL].

102. As to the former submission, applying the reasoning of the Appeal Panel in Snape v Commissioner of Police [2022] NSWCATAP 63 (eg at [39]), the fact that the identity of a person is known to the applicant (by whatever means including by an earlier access application) is irrelevant to the question of disclosure and the Tribunal is obliged to consider each access application on its own merits. The manner in which the identity of those persons has been previously disclosed to the applicant was through documents served on him in court proceedings. However, that has not been made “public” in the same way that it would be publicly and unconditionally disclosed “to the world” by the release of that same information to the applicant under the GIPA Act: see s 73(1).

103. As to the latter submission, I agree with the respondent at [25] that these factual circumstances do not detract from the respondent’s contention that cll 1(d) and (f) apply, given the impact that the disclosure of such information could have on the effective exercise of the respondent’s functions.

104. Further, the respondent submitted that within the paragraph [128] pages, that pages 10, 58, 17, 22, 23, 24, 27, 33, 35, 77, 82-83, 95, 106, 110, 112-113, 132-133, 163, 167, 204-205, 226, 246, 248-251, 256, 259, 262, 321, 359-360, 363, 368 and 375-376 additionally contain information relating to risk assessments and the Department’s safety and security measures and strategies to address and manage the applicant's conduct at [THE SCHOOL] or conduct that was reported to [THE SCHOOL].

105. The respondent submitted at [131] to [136] (omitting evidentiary references and citations in the footnotes):

131. Of those pages identified at [128], within them are Pages 32, 62, 107 and 368 that additionally contain communications between police and [the school] Public School in relation to staff providing police statements.

132. So too in the case of Pages 1, 29, 66, 101, I05, 282 and 303, they additionally contain information relating to subpoenas issued to staff at [the school] Public School and concerns about the subpoenas and being required to attend court.

133. Pages 1,7, 15, 21, 22, 23, 27, 34, 35, 90, 134-135, 168, 274, 276, 280 and 312 contain an information exchange between [the school] Public School, the relevant Director Educational Leadership and/or the Legal Services Directorate regarding the issuing, serving or varying a [sic] banning notices under the Inclosed Lands Protection Act 1901 by [the school] Public School to the applicant or the applicant's breach of a notice.

134. The Tribunal would be satisfied that the redacted information in the pages referred to above at [130]-[133] was provided to the Department on a confidential basis given that:

a. assurances are provided that information relating to the management of incidents at schools will be kept on a need-to-know basis;

b. assurances are provided that information provided to police in relation to an alleged offence are kept confidential;

c. measures are put in place to ensure information is kept on a need-to-basis [sic], including by:

i. restricting access to files to school staff;

ii. requiring staff to have particular clearances to work on some incidents; and

iii. requiring staff to enter into confidentiality agreements to work on some incidents;

d. several pages bear markings that the contents of the pages are confidential; and

e. the contents of the pages contain sensitive information and discussions that would reasonably be assumed to be confidential.

135. The respondents [sic] submits that the Tribunal would be satisfied that the release of the redacted information in the pages referred to above at [130]-[133] would prejudice the effective exercise of the Department's work health and safety functions because:

a. students and staff would feel that they would not be able to communicate frankly to resolve any sensitive issues, which could lead to:

i.a reduction in the reporting of incidents because they may not feel safe in coming forward;

ii.an incomplete reporting of incidents; and

iii. a deterioration of the health and wellbeing of staff and students because they would be stressed about the information they provided being known and the effect it might have on others who had provided it to them on a confidential basis;

b. reveal the risk minimisation measures and strategies and resources deployed at [the school] Public School to address the risks posed by the applicant and provide persons with an insight into the measures, strategies and resources deployed by the Department, which would enable them to take steps to circumvent them in the future; and

c. reveal who made reports about the applicant's conduct and expose them toreprisal.

136. This in turn, would impair the Department's ability to:

a. proactively and effectively respond to risks posed to the safety and wellbeing of staff and students, because the Department may not have all the relevant information it needs to assess the risks or the strategies that could be put in place;

b. ensure health and safe workplaces by preventing or removing risks to the physical and psychological safety and wellbeing of staff;

c. ensure the child protection processes it has in place are enacted without interference; and

d. provide appropriate levels of support and guidance to staff to respond to various risks and situations as senior school staff and executives in the Department need to be able to candidly discuss how to best manage and resolve various sensitive issues affecting the school's operations.

106. In this respect, I accept the evidence of Det Sgt McQueen in Exhibit B and Confidential Exhibit B at [15]:

15. I have been provided with copies of pages 1,7, 77, 24, 27, 32, 34, 35, 62, 66, 67, 77, 102, 103,105, 107-110, 112, 113, 117,132-135, 140, L63, 164, 215, 256, 257, 259, 262, 263, 273, 275, 303, 321,359, and 360 referred to in a schedule to the Department of Education's decision of 15 April 2021 (Decision Schedule). I understand that some or all of the information contained in those pages, which are emails between [the school] Public School staff, Department of Education staff and/or me, and Safety and Security Directorate Incident Reports, have not been provided to EHW. I believe that the release of the information contained in these pages [Not for Publication].

107. Further, in relation to the impact of disclosure of the redacted information in the paragraph 128 pages (including those set out above in the respondent’s submissions at paragraphs [131] to [132]), the effect of the evidence of Mr Barraket in Exhibit C was that the release of that redacted information would prejudice the effective exercise of the Department's educative functions: eg at [16]. Mr Barraket explained in his affidavit at [22] that this was because [THE SCHOOL] staff time would be diverted from focusing on the educational needs of students and instead, it would be focussed on responding to the increased health and safety risks resulting from the disclosure of information to the applicant.

108. Mr Barraket deposed at [20] to [26] of Exhibit C and Confidential Exhibit C in relation to his concerns if the redacted information was disclosed to the applicant, as follows:

20.I have been provided with copies of various pages referred to in a schedule to the Department of Education's decision of 15 April 2021 (Decision Schedule). I understand that some or all of the information contained in those pages have not been provided to Mr EHW.

21. [Of the paragraph 128 pages with the slight variation referred to above] … pages 1,7, 10, 15, 17-18, 2I, 27, 77, 90, 167, 216, 253, 274, 276, 280, 368 contain emails between Nicole Molloy, the Principal of the School, me and/or staff employed in the Work Health and Safety Directorate or the Legal Services Directorate of the Department:

a. [Not for Publication]

b. [Not for Publication

c. [Not for Publication]

d. [Not for Publication]

22. I would be very concerned if the information contained in those pages were released as it would:

a. heighten the fear and anxiety about Mr EHW that still exists among staff at the School;

b. alert Mr EHW of the measures that have been or might be put in place or provide him with insight as to when the measures will be imposed, which will enable him to come up with workarounds to circumvent those measures;

c. reveal the identities of individuals who have made reports against him and could expose them to reprisal or otherwise compromise their security;

d. reveal to Mr EHW [Not for Publication]

e. potentially impact the Department's ability to ensure the child protection processes it has in place are enacted without interference and therefore compromise student safety and wellbeing; and

f. impact on the Department's ability to comply with its work, health & safety obligations to ensure health and safe workplaces for employees and visitors by hindering future interactions and responses with Mr EHW and the support provided to staff to prevent or remove risks to their physical and psychological safety and wellbeing.

23. Page 280 also contains the mobile numbers of two Departmental staff. In light of my previous interactions with Mr EHW which suggests that he has boundary issues outlined above, I would be concerned if those mobile numbers were provided to him. It would expose the staff members to the likely risk of frequent phone calls from Mr EHW and hinder them from being able to attend to urgent situations that warrant calls to their mobiles.

24.Pages 298, 300,354 and 356 contain emails between:

a. Ms Molloy and me regarding the [Not for Publication]

b. Sylvia Corish and me regarding the [Not for Publication]

25. Page 377 contains [Not for Publication].

26. I would be concerned if the information contained in these pages were disclosed as it may:

a. expose those persons to reprisal which would affect their wellbeing and therefore impact on the Department's ability to manage the risks to staff wellbeing caused by Mr EHW's conduct; and

b. impact on the Department's ability to effectively carry out its complaint handling processes in the future in relation to any complaints made by Mr EHW.

109. Further, the evidence of Mr Sarkis in Confidential Exhibit D at [40] to [48] in relation to the paragraph [128] pages (with the slight variation to which I have referred above), and which I accept, stated:

40. Pages 17-18 [Not for Publication

41. Page 140 contains an email between Ms Petriella [Not for Publication]

42. Pages 162 and 216 are copies of the same document, [Not for Publication]

43. Page 164 [Not for Publication].

44.Page 217 contains [Not for Publication]

45. I am concerned if the contents of pages 17-18, 140, 162, 164, 216-217 were released, the Department's duty to protect [Not for Publication] could be prejudiced as Mr EHW may seek to contact and/or further intimidate [Not for Publication] Furthermore, I am concerned that if the contents of these pages were released, [Not for Publication].

46. Page 58 contains [Not for Publication].

47.Page 321 contains emails between Mr Barraket and Ms Molloy regarding the provision of a response to Mr EHW. The redacted part discloses that [Not for Publication].

48. I am concerned that the disclosure of the information contained in page 58 and the redacted information in page 321 may disclose the identity of a person who made a report to an assessment officer that a child is at risk of significant harm.

110. A large number of the paragraph [128] pages were also identified as coming within cll 1(d) and (f) because of the possible effect of disclosure on the Department’s complaint handling functions. It is convenient to set out in full the respondent’s confidential submissions in chief at [138] to [144] in support of public interest considerations against disclosure:

138. Further, Pages 13, 62, 230-231, 272-273, 316-3I7, 354-356 and 377 are internal communications between [the school] Public School and staff in the Department for the purposes of handling and/or responding to the applicant's and his former wife's complaints in relation to the banning notices issued to him under the Inclosed Lands Protection Act 1901 and the effect it has on his ability to drop off and pick up his children.

139., Pages 137, 251-252 are internal communications between [the school] Public School, the Employee Performance and Conduct Directorate (“EPAC”) of the Department and/or the relevant Director, Educational Leadership for [the school] Public School for the purposes of handling/or and responding to the applicant's complaint that an out of school care coordinator allegedly assaulted one of the applicant's children.

137. The respondent's submissions in chief at [158] stated that the pages in the prosecutor's brief referred to by Det Sgt McQueen at [16], [19] and [21] and the application for the ADVO were not tendered in open court in a hearing. Det Sgt McQueen is not so clear about that matter. He says that only that the ADVO did not proceed to a hearing (at [20]) and that the witness statement served without a witness cover sheet mentioned at [21] was not tendered and the witness did not give evidence (not that the hearing did not proceed at all).

138. However, the correctness of the respondent’s submission in chief at [58] was not challenged by the applicant in his written submissions or by his counsel at the hearing. I therefore accept that the submission at [158] is correct and it is intended to also refer to the two signed witness statements referred to in paragraph [19] of Exhibit B about which Det Sgt McQueen did not say whether those statements were tendered in open court at a hearing.

139. Based on the above, I therefore accept that it is immaterial that the applicant may be aware of some or most of the personal information in the redacted parts of the paragraph [156] pages. That personal information has not been publicly disclosed within the meaning of cl 3(a) of the s 14 Table. In my view, and adopting the respondent’s submissions set out above, I am satisfied that none of the personal information redacted in the paragraph [156] pages has been revealed in the sense of having been “publicly disclosed”.

140. I therefore accept that cl 3(a) applies as a consideration against disclosure of the personal information the subject of the paragraph [156] pages and that this should be given significant weight when applying the public interest test.

3. Clause 3(b)

148. The third ground relied upon by the respondent is cl 3(b) of the s 14 Table, namely that disclosure may contravene an information protection principle or a health privacy principle.

149. Applicant did not engage with this consideration in his submissions.

150. As is often the case, the paragraph 156 pages the subject of the claim under cl 3(a) in respect of personal information in the Decision Schedule also invites consideration of the application of cl 3(b) to that same information.

151. For cl 3(b) to apply, the Tribunal must be satisfied that the disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act or a health privacy principle under the HRIP Act. For present purposes, it is the information protection principle in s 18 of the PPIP Act that is relevant. Section 18(1) relevantly provides:

(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 ..."

152. The respondent submitted that the personal information contained in those pages was collected for the purposes of managing the effect of the applicant's conduct on [THE SCHOOL] staff so that disclosure of that personal information under the GIPA Act would not fall within any of categories of disclosure permitted by s 18, such that it would contravene the information protection principle in s 18.

153. The respondent submitted that for there to be a breach of s 18 of the PPIP Act, an individual's personal information must have been disclosed to a person or body outside an agency: citing Department of Education and Communities v VK [2011] NSWADTAP 61 at [21]. The respondent further submitted in reliance on Nasr v New South Wales (2007) 170 A Crim R 78 at [127] and [132], that the essence of a disclosure of information is making known to a person information that the person did not previously know.

154. While a disclosure of information in response to an access application under the GIPA Act is a disclosure “to the world” because no conditions can be imposed, if the applicant is already aware of any of the redacted personal information in the paragraph 156 pages, then in the particular circumstances referred to above, there has no "disclosure" for the purposes of s 18 of the PPIP Act if the information were disclosed under the GIPA Act.

155. I accept that for there to be a breach of s 18 of the PPIP Act, the Department must make personal information known to a person outside the Department and that it was personal information that was not previously known to that person.

156. I therefore find that cl 3(b) should be given a moderate degree of weight when applying the public interest test.

4. Clause 3(f)

157. The fourth ground is cl 3(f) of the s 14 Table, which is concerned with disclosure that may expose a person to a risk of harm, serious harassment or intimidation. For cl 3(f) to apply, the Tribunal must be satisfied that the disclosure of the information could reasonably be expected to expose a person to a risk of harm, serious harassment or serious intimidation.

158. The respondent identified in paragraph [174] of the submissions in chief the following pages of the Decision Schedule as coming under cl 3(f) as they contain the identities and contact details of persons:

35, 60-61, 80, 92, 95, 105, 114, 121-I22, I25-126, 130, 137, 254 and 289 (referred to for convenience as the “paragraph [174]” pages).

159. The applicant’s submissions at [27]-[30] contend that “little weight” should be given to this ground. However, in light of the following unchallenged evidence of Det Sgt McQueen, I reject the applicant’s submission. Det Sgt McQueen deposed in Confidential Exhibit B at [3] to [9] that:

3. In July 2018, I was assigned an investigation regarding the harassment of staff at [the school] Public School. The subject of the investigation was , (EHW), who at the time had three of his daughters enrolled at [the school] Public School. At the time, EHW and his children were residing at (non publication) and commuting a considerable distance via public transport each morning and afternoon so the children could still attend the school.

4. Prior to my involvement with [the school] Public School, EHW had been served a number of banning notices under the Inclosed Lands Protection Act 1901 preventing him from entering [the school] Public School, The basis of these were allegations of abusive, violent and threatening behaviour by EHW against others, mainly female teachers at [the school] Public School entrusted with educating his children' When served with the banning notices, which had to be done by police due to concerns about EHW,S behaviour, he spoke with police in an abusive and aggressive manner. When served a banning notice by the police at his home, EHW threw it on the ground, stomped on it and said, “The cunt's not served!"

5. The reporting of EHW's abusive, violent and threatening behaviour by staff at [the school] primary School dramatically increased after a report was made by a member of staff at the private after school care company attached to [the school] Public School [Not for Publication].

6. [Not for Publication]

7. EHW attempted to prevent senior staff at [the school] Public School, including the Principal, Deputy and Assistant Principals, from talking to his children and his children from attending the office section of the school. [Not for Publication] EHW then commenced an endless campaign of complaints regarding virtually every level of the Department of Education including the Principal and the Director, Educational Leadership.

8. [Not for Publication]

9. [Not for Publication]

160. I accept the respondent’s submissions in chief at [170] to [173] as follows:

170. "Harm", for the purposes of the GIPA Act, has been construed to refer to "a real and substantial detrimental effect on a person" and includes a detrimental effect "to a person's physical, psychological or emotional wellbeing" [citing AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 (“AEZ”) at [85]; DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114].

171. The Tribunal is not required to consider whether the risk of harm is "likely" to occur [citing Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]. Nor is it appropriate for the Tribunal to assess the gravity of the risk of harm [citing Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [45]. The Tribunal only needs to be satisfied that the disclosure of information could reasonably be expected to expose a person to a "risk of harm".

172. "Harassment" refers to conduct that would make a person "offended, worried, tormented, distressed or harassed" in the circumstances [citing AEZ at [89]. "Intimidation" refers to "make timid, or inspire with fear, overawe, cow" [citing AEZ at [90]-[93].

173. The use of "serious" in cl, 3(f) requires the intimidation or harassment to be "heavy, weighty or grave, and not trifling or transient". [citing AEZ at [94]]. It is not satisfied by future dealings between an agency's officers and applicant being tense, uncomfortable or awkward [citing Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Winn v The Hills Shire Council [2020] NSWCATAD 14 at [73]. Nor is the requirement met by the applicant's motive, which regard may be had to, to access the information being to ascertain whether anyone within the agency should be prosecuted for an offence [citing Pallier v NSW State Emergency Service [2016] NSWCATAD 293 at [87].

161. In any event, the redactions in respect of the paragraph 174 pages except for pages 121-122, 130, 137 and 254 concern the mobile telephone number of Mr Sarkis. The evidence of Mr Sarkis in Exhibit D at [49] was that he uses that mobile telephone number for both “personal and work purposes.” Irrespective of the risk of harm to Mr Sarkis by the release of that information, as mentioned above, the applicant submitted at [34] of his written submissions that he “does not press for private information, such as telephone numbers”.

162. I therefore do not need to make a finding in respect of cl 3(f) concerning those specific pages relating to Mr Sarkis’ mobile telephone number and which were not pressed by the applicant.

163. In the case of pages 121-122 and 254, those pages contain redactions of the identities and contact details (including mobile phone number and email address) of persons involved with the out-of-school hours care provider, “Helping Hands [the school]”. As I understand the applicant’s submission referred to above, those redacted details are not pressed either.

164. In relation to the remaining page, namely page 137, the respondent did not refer to that page in her written submissions and it simply appears to have been overlooked in being dealt with in relation to the matters under cl 3(f). It was however dealt with in relation to cl 3(a) set out above.

165. I have reviewed page 137 and I am satisfied that the deleted parts relate to the mobile telephone number of the partnership manager for Helping Hands [the school] and another person who is described as “not a DoE employee”. Therefore, I have dealt with this remaining page in the same way as those above which contain personal information such as telephone numbers.

166. Accordingly, I need not determine the issues raised under cl. 3(f) or consider the weight to be attributed to it in the balancing of considerations under the public interest test since the redactions relied upon under cl 3(f) concern items of personal information that have not been pressed by the applicant.

167. However, if I am wrong in either my understanding of the basis upon which the redactions were made under cl 3(f) or the scope of the matters not pressed by the applicant, on the basis of the evidence referred to above by Det Sgt McQueen and the respondent’s submissions in chief at [176] and [178], I would otherwise have afforded significant weight to cl 3(f) when applying the considerations under public interest test.

5. Clause 3(g)

168. The fifth ground is cl 3(g) of the s 14 Table, namely that disclosure is not in the best interests of a child. The challenge to the respondent’s reliance on this ground was not directly pressed by the applicant but he requested the Tribunal to review the documents withheld under that ground to be satisfied that the provisions of cl 3(g) properly apply.

169. Clause 3(g) of the s 14 Table is concerned with the interests or more broadly, the rights, of the child in a generic sense and not in the context of the particular child to which the information relates: Medlyn v Commissioner of Police [2020] NSWCATAD 125 at [115]-[116]; Commissioner of Police v DYD [2020] NSWCATAP 224 at [61].

170. One factor that is to be given significant weight is a child's privacy rights, including in relation to "aspects of their conduct at school and observations about their parents' relationship breakdown”: Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 at [67]. As submitted by the respondent, the Tribunal has noted that it is "difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA Act application”: citing Miskelly v Secretary Department of Education [2019] NSWCATAD 48 at [127].

171. The respondent identified in paragraph [183] of the submissions in chief the following pages of the Decision Schedule as containing information relating to the applicant's children and other children at [THE SCHOOL] in support of the application of cl 3(g):

18, 42, 140, 217, 244-245, 247 and 250 (referred to for convenience as the “paragraph [183]” pages)

172. Having reviewed the documents in their unredacted form in Confidential Exhibit F, I am satisfied that it was open to the respondent to withhold the release of certain documents under this ground.

173. I accept the following from the respondent’s (confidential) submissions in chief at [184] to [186]:

184. Pages 18, 217 and 247 contain information regarding [Not for Publication].

185. Pages 140 and 244 contain information regarding [Not for Publication].

186. The respondent submits that that cl. 3(g) applies to the information referred to above at [183]. From the nature of the information, it is self-evident that cl. 3(g) should be accorded significant weight in the application of the public interest test given the risks posed, as set out in the McQueen Affidavit at [15]-[17].

174. Much of the evidence in support of considerations under cl 3(f) referred to above have equal relevance under this ground in cl 3(g). Although I have not restated that evidence here in this part of my reasons, I have had regard to it, and in addition, the following evidence of Det Sgt McQueen in Confidential Exhibit B at [15] to [18]:

15. … I understand that some or all of the information contained in those pages [at paragraph 183], [Not for Publication], have not been provided to EHW. I believe that the release of the information contained in these pages could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. This is because the [Not for Publication ]

…

17. For example, page 18 reveals or tends to reveal the identity of multiple informants and the disclosure of that page would prejudice the future supply of information from any informant. The page reveals that [Not for Publication] I am particularly concerned that if the contents of the page were disclosed, EHW may take action against those persons and other persons would be reluctant to come forward and report their concerns.

18. In regard to the pages referred to in paragraphs 15-16 that were provided to me, I believe that:

a. the release of the information in those pages would prejudice the prevention,

detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. [Not for Publication] I am concerned that any information in those pages, if those pages were provided to EHW will assist him avoid detection, [Not for Publication].

175. Based on the above matters, I find that significant weight should be given to this consideration under cl 3(g) against disclosure, when balancing the public interests in favour of disclosure and the public interests against disclosure under the public interest test.

Refusal to deal with the Access Application under s 60 of the GIPA Act

176. The final ground raised by the respondent is under s 60 of the GIPA Act that permits an agency to exercise its discretion to refuse to deal with an access application in certain circumstances.

177. There are two matters relied upon by the respondent under s 60 of the GIPA Act, namely:

1. section 60(1)(a): that dealing with the Access Application would require an unreasonable diversion of the respondent's resources; and

2. section 60(1)(d): that the information sought is or has been the subject of a subpoena or court order for the production of documents and is available to the applicant.

178. The respondent’s submissions in chief do not appear to contend that the respondent is advancing these two grounds in the alternative but the proposed orders sought by the respondent do seem to suggest that: at [202.a] and [202.b]. In any event, these two matters overlap although I have dealt with them separately because s 60(1)(d) was relied upon in the Reviewable Decision and s 60(1)(a) was not.

179. In part, the issues arising under s 60(1)(d) informs the nature of the matters to consider under s 60(1)(a). Therefore, it is convenient to deal with the parties’ submissions and the respondent’s evidence in respect of s 60(1)(d) first.

Documents previously produced under subpoena

180. The respondent submitted that certain information sought by the applicant is or has been the subject of a subpoena or court order for the production of documents and was produced to the applicant.

181. The applicant contended that s 60(1)(d) of the GIPA Act cannot apply where there are or may be documents that have not been produced by the Department pursuant to subpoenas previously issued by the applicant. The applicant submitted that s 60(1)(d) cannot apply in this case because the respondent cannot identify or does not know whether documents have been produced under subpoenas issued by the applicant to the Department.

182. The applicant’s submissions criticised the affidavit evidence of Jenni Pendergast (Exhibit A) which revealed errors in the processing of the production of documents under the Access Application and production under subpoenas issued by the applicant to the Department.

183. Ms Pendergast explained the steps taken by her and the Department to compare the 993 pages of documents produced under the Access Application (GIPA Bundle) and a 1659 page bundle of documents produced pursuant to a subpoena issued by the applicant on 16 December 2019 (Subpoena Bundle). Ms Pendergast stated that 61 hours was incurred in dealing with that process and concluded that there was 182 pages identified from the GIPA Bundle that had not been produced in the Subpoena Bundle.

184. The respondent accepted that Ms Pendergast was mistaken in her initial understanding that 1659 pages had been produced in response to the 16 December 2019 subpoena. Those 1659 pages appears to have included 919 pages produced by the Department pursuant to a later subpoena issued by the applicant dated 14 April 2020.

185. I accept the applicant’s submission that there was clearly some inefficiency and wasted time in the 61 hours spent by the Department on the 1659 bundle of documents. However, as I explain later, in my opinion, very little turns on this error.

180. The evidence is that on becoming aware of the error, Ms Pendergast directed a fresh review to be undertaken. This time the review was to compare the GIPA Bundle with documents produced under both the 16 December 2019 and 14 April 2020 subpoenas. Ms Pendergast deposed at [25] of her affidavit that the review of the documents produced under both subpoenas took the respondent 15 hours and established that “there were 381 pages in the GIPA Bundle that contained information which fell within the scope of Mr EHW’s access application and had not been previously provided to Mr EHW”.

181. If that was an accurate statement by Ms Pendergast, then it is difficult to see why the respondent raised cl 1 (d) which is predicated on information having been produced and therefore “made available” to an applicant under a subpoena that has requested the same information as an access application. The respondent’s submissions in chief accept this at [192].

182. I agree with the applicant’s submission at [12] that s 60(1)(d) cannot apply if documents have not been produced to the applicant by way of a subpoena.

183. However, the Decision Schedule identified the following pages 219-223, 224, 226, 232-233, 236-240 and 245-246 as having been “released in subpoena documents” to the applicant.

184. Notwithstanding the apparent error made by Ms Pendergast if I have properly understood her evidence, it does not detract from the respondent’s contentions because the Decision Schedule and the respondent’s submissions are consistent: see [191.a] of the submissions in chief. At [193] the respondent submitted that the applicant “already had access” to “some of the information” contained in those same documents. Accordingly, I am satisfied that pages 219-223, 224, 226, 232-233, 236-240 and 245-246 of the Decision Schedule have already been made available to the applicant within the meaning of s 60(1)(d) and it was open to the respondent to refuse to deal with the Access Application in respect of those pages.

Unreasonable diversion of resources

191. The issues canvassed above raise a related issue as to whether there are or may be some documents in the remaining 612 documents referred to by Ms Pendergast that may come within the Access Application and that may not have been already produced under any subpoenas. The state of the evidence does not permit me to make a reliable assessment or finding in answer to that question, notwithstanding the inference the respondent seeks to make from the matters referred to at [193] of the submissions in chief.

192. Ms Pendergast deposed that she spent 4 hours reviewing and where appropriate redacting, some or all of the 381 pages withheld under the Reviewable Decision. By reference to the 381 pages redacted or withheld under the Reviewable Decision and the 993 pages in the GIPA Bundle, there are a remaining 612 pages that may not have been produced under the subpoenas issued by the applicant to the Department. Ms Pendergast estimated that it will take a further 29 hours to review the 612 pages to assess whether they have been previously produced under subpoena.

193. Ms Pendergast deposed in Exhibit A that there have been seven subpoenas issued by the applicant to the Department in litigation between June 2018 and February 2020 and in respect of which the Department has produced documents. The evidence of Ms Pendergast is that the Department has 8 staff in its Information Access Unit to deal with all information requests under the GIPA Act. Ms Pendergast deposed that the Department has already spent approximately 98 hours in processing the applicant’s GIPA requests for documents in the last three financial years (excluding the time also spent responding to production pursuant to the subpoenas) in the context of the Department having received an annual total of 539, 698 and 934 access applications respectively in each of those years.

194. Having regard to the above matters, which the applicant did not challenge in cross examination of Ms Pendergast, I do not accept the applicant’s submission that even if further time was needed to deal with the request, it could not be considered "excessive" when it is the result of the Department’s own mistakes in considering its own material or that the Department does not seem to know whether the documents have been produced to the applicant pursuant to a subpoena.

195. I do not accept that all of the 61 hours of the initial review was wasted since that review would have facilitated and expedited the later review that was undertaken by Ms Pendergast and to which I have referred above.

196. Ms Pendergast deposed that in her estimation, based on the time spent in reviewing the 182 pages the subject of the Further Decision and the 381 pages the subject of the Reviewable Decision, and her experience generally in dealing with access applications, it would take her 29 hours to further consider whether the information in the 612 pages was information not already been produced in response to the 16 December 2019 and 14 April 2020 subpoenas. I accept the evidence that it took Ms Pendergast approximately 16 hours to review and consider 381 pages (171 of which she had previously reviewed and considered), so that as the respondent submitted in its Further Reply Submissions at [26]:

26. If anything, Ms Pendergast provides a conservative estimate of the time that would be taken to consider those 612 pages.

197. In relation to the estimate of an additional 29 hours to undertake a review of the 612 pages, I accept the unchallenged evidence of Ms Pendergast in Exhibit A, particularly given her knowledge of this particular matter and her experience generally in dealing with access applications.

198. The respondent also submitted in the Further Reply Submissions at [27]:

27. The applicant appears to conflate the issue of the respondent refusing to review the information contained in 612 pages to determine if there is an overriding public interest against disclosure which applies to them with the obligation in s. 53 of the GIPA Act to conduct reasonable searches … They are not the same and, to the extent that the applicant is suggesting that the respondent has not undertaken reasonable searches, that should be rejected. Ms Pendergast deposes to the 993 pages being the subject of a signed Search Officer declaration that confirmed all available searches were performed in relation to the access application and all information located being provided.

199. I accept that submission.

200. The issue for consideration now is whether s 60(1)(a) of the GIPA Act, that was not relied upon in the Reviewable Decision, can be relied upon to permit the respondent to refuse to deal further with the Access Application as it would constitute an unreasonable and substantial diversion of the Department’s resources.

201. The complicating aspect of the respondent’s reliance on s 60(1)(a) is that s 60(4) of the GIPA Act requires an agency to give an access applicant a reasonable opportunity to amend an access application before refusing to deal with it on the basis that it would cause an unreasonable diversion of resources.

202. As stated above, s 60(1)(a) was not relied upon in the Reviewable Decision or in any of the earlier decisions made by the respondent in respect of the applicant’s access applications. Perhaps for that reason and for the avoidance of doubt, the respondent invited the applicant in her submissions in chief at [201] to further amend his Access Application to try and satisfy the requirement under s 60(4). The applicant did not seek to further amend the Access Application.

203. However, the applicant did not submit in these proceedings that the respondent’s reliance on s 60(1)(a) was invalid or should be set aside for non-compliance with s 60(4). The applicant appears to have accepted that the sole issue arising under s 60(1)(a) was a factual contest as to whether the evidence of Ms Pendergast was reliable and why it should not be accepted. I have found that her evidence was generally reliable and that it should be accepted.

204. The “invitation” made by reference to s 60(4) seems to be offered to satisfy the precondition for the respondent’s proposed order that the correct and preferrable decision that the Tribunal should make is for the respondent to refuse to deal with that part of the Access Application in reliance on s 60(1)(a) of the GIPA Act.

205. While there is a degree of artificiality about the question of compliance with s 60(4) in this context, particularly where there had been several earlier amendments to the scope of the Access Application and the final scope was made by agreement, I am satisfied that having regard to the above matters, including that the applicant did not seek to further amend his Access Application, the additional time required to deal further with the applicant’s Access Application would be an unreasonable diversion of the Department’s resources in light of the material already produced to the applicant both pursuant to the GIPA processes and by the subpoenas issued by him.

206. Therefore, having regard to the above considerations in the context of s 60(3A) of the GIPA Act, I am satisfied that on balance, those considerations outweigh the considerations in s 60(3B). The respondent’s reliance on s 60(1)(a) in these proceedings to refuse to deal further with the Access Application is justified. The correct and preferrable decision is for the respondent to refuse to deal with the additional 612 pages under s 60(1)(a) because it would cause an unreasonable and substantial diversion of the Department’s resources.

Conclusion

207. The Notice of Decision dated 15 April 2021 should be affirmed. I am satisfied that:

1. the privilege documents (as defined in these reasons) attract the conclusive presumption against disclosure claimed by the respondent under cl 5 of sch 1 of the GIPA Act;

2. the Care and Protection Act documents (as defined in these reasons) attract the conclusive presumption against disclosure claimed by the respondent under cl 10 of sch 1 of the GIPA Act; and

3. having regard to the factors and the weight to be attributed to the considerations raised by reference to the s 14 Table of the GIPA Act and balancing those considerations in the context of the public interest test under s 13 of the GIPA Act, I find that the public interest considerations against disclosure significantly outweigh the public interest considerations in favour of disclosure and that therefore, there is an overriding public interest against disclosure of the information contained in the redacted pages in the Decision Schedule;

4. it was open to the respondent to refuse to deal with the Access Application in respect of information under the grounds provided by s 60(1)(d) of the GIPA Act;

5. the correct and preferrable decision is for the respondent to refuse to deal with the additional 612 pages under s 60(1)(a) because it would cause an unreasonable and substantial diversion of the Department’s resources.

Orders

208. I make the following orders pursuant to s 63 of the ADR Act:

1. Affirm the respondent’s Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 to:

1. refuse the applicant access to the information referred to in the Decision Schedule;

2. refuse to deal with those parts of the Access Application in reliance on s 60(1)(d) of the Government Information (Public Access) Act 2009 (NSW).

2. The correct and preferrable decision in the Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 is to refuse to deal with those parts of the Access Application in reliance on s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW).

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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

Amendments

17 May 2022 - Anonymisation

Decision last updated: 17 May 2022