FGK v Legal Aid NSW

[2021] NSWCATAD 308

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FGK v Legal Aid NSW [2021] NSWCATAD 308

Hearing dates:

14 December 2020, 24 May 2021

Date of orders:

22 October 2021

Decision date:

22 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law –access to government information – access application – prejudice supply of confidential information - prejudice effective exercise of agency's functions - personal information - confidential material - false or unsubstantiated allegations about a person that are defamatory - applicant's personal factors - not be in the best interests of a child - contravention of any other Act or statutory rule that prohibits the disclosure of information - whether public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Legal Aid Commission Act 1979 (NSW)

Legal Profession Uniform Law (NSW)

Family Law Act 1975 (Cth)

Privacy and Personal Information Protection Act 1988 (NSW)

Cases Cited:

AFW v WorkCover Authority of NSW [2013] NSWADT 51

Alexander v University of Sydney [2008] NSWADT 214

Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.

Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60

Commissioner of Police & New South Wales Police Force v Camilleri [2012] NSWADTAP 19

Director of Public Prosecutions v Smith [1991] 1 VR 63

EIF v Legal Aid NSW [2020] NSWCATAD 113

Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113

Flack v Commissioner of Police, NSW Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

McKinnon v Blacktown City Council [2012] NSWADT 44

McKinnon v Department of Treasury [2006] HCA 45.

Medlyn v Commissioner of Police [2020] NSWCATAD 125

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

Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278

Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588

Robinson v Department of Health [2002] NSWADT 222

Taylor v Destination NSW [2017] NSWCATAD 272

Van der Wall v University of Sydney [2008] NSWADT 213

Category:

Principal judgment

Parties:

FGK (Applicant)
Legal Aid NSW (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Crown Solicitors Office (Respondent)

File Number(s):

2020/00248732

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis. That material is not to be published or released to the Applicant, without further order of the Tribunal.
Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 the names of the Applicant, the Applicant’s children and the Independent Children's Lawyer are not to be disclosed.

Reasons for Decision

Introduction

1. In these reasons I have limited discussion of some issues to avoid the possibility of inadvertently identifying Family Court proceedings and parties to those proceedings. I have also anonymised the identity of some individuals for the same reason. In these reasons the Applicant is to be known as FGK.

2. In an access application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") the Applicant requested information held by Legal Aid NSW (“Legal Aid” or “the Respondent”). His request concerns a particular Independent Children's Lawyer (“the ICL”). He requested:

a.   All Legal Aid NSW complaints in relation to [the ICL], including actions, correspondence, emails, minutes, internal memos, reports, decisions and findings with Legal Aid NSW's Grants Division, Professional Practices Branch and Monitoring Committee

b.   All details of the Legal Aid NSW complaint in relation to [the ICL], involving [the Applicant and his children] in relation to the family law matter before the Federal Circuit Court in Sydney …, including actions, correspondence, emails, timeframes for resolution, minutes, reports, decisions, internal memos, and findings with Legal Aid NSW's Grants Division, Professional Practices Branch and Monitoring Committee.

3. The ICL was appointed as the Independent Children's Lawyer in family law proceedings involving the Applicant. She was discharged from that role on the Applicant’s application. She is also the subject of complaints made by the Applicant to the Respondent and to the Office of the Legal Services Commissioner (“the OLSC”). The Applicant seeks the requested information for use in relation to the OLSC complaint and in relation to potential litigation against the ICL and the Respondent.

The determination

4. The Applicant submitted a complaint about the ICL to the Respondent and also expressed his dissatisfaction with the Respondent's response to his complaint. He made a second complaint in regard to the Respondent's complaints management processes. He subsequently made the access application.

5. The Respondent determined to release correspondence to and from the Applicant in relation to his complaint but refused access to all other information that fell within the scope of the access application.

6. The Applicant sought internal review of the decision. On review, the Respondent determined to release an additional document but otherwise determined to refuse access to the balance of information requested. There are 66 documents in issue (“the withheld information”).

7. The Applicant sought external review by the Information Commissioner who found that the Respondent's decision was justified, and made no recommendations.

8. The Applicant has applied to the Tribunal for external review.

9. The ICL has exercised her right to appear and make submissions in the proceedings.

10. The Applicant’s access application concerns information related to a range of family law proceedings. With the exception of the ICL, other individuals whose information is included in the information in issue have not been notified of the proceedings or the right to appear and be heard. As will become apparent, I have determined that information concerning those individuals should not be released and therefore it is not necessary to give notification to those individuals.

Application to reopen proceedings

11. Following the hearing of the application the Tribunal’s decision was reserved. The Applicant subsequently applied to have the matter reopened to allow further information to be admitted into evidence. The information relates to a coronial inquiry and issues concerning Family Court proceedings in an unrelated matter, a further complaint to the Respondent concerning an ICL and medical evidence relating to the Applicant’s children. The Applicant contends that the information highlights systemic issues within the Respondent and that the impact on his children is significant.

12. I have decided not to admit the further material. In my view, the material is either not relevant to the issues to be decided in this matter or touches on issues that have already been raised in the material that is already before the Tribunal.

The withheld information

13. The Respondent has provided the withheld information to the Tribunal on a confidential basis (“the Confidential Bundle”). The Respondent adopted a reference to the withheld information by page numbers in the Confidential Bundle and by two separate categories. The Respondent described the withheld information as:

Category A - "internal correspondence relating to the Applicant's complaint" - Documents 45 - 66 in the Confidential Bundle; and

Category B - "all Legal Aid NSW complaints in relation to [the ICL]" - Documents 1 - 44 of the Confidential Bundle.

14. I will adopt that system of identification.

The Issue before the Tribunal

15. The issue for determination is whether the correct and preferable decision is to release the withheld information.

Applicable legislation

16. The object of the GIPA Act as stated under section 3(1) is to open government information to the public. The GIPA Act is to be interpreted and applied so as to further its object. The meaning of "government information" is broad. Section 4 provides that government information means information contained in a record held by an agency. Access is only restricted when there is an overriding public interest against disclosure.

17. Part 2 of the GIPA Act provides the mechanism by which a member of the public can make an access application for government information to an agency. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) gives a person who makes a valid access application a legally enforceable right of access to government information unless there is an overriding public interest against disclosure of the information.

18. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information and, further, that nothing in the GIPA Act limits any other public interest 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 of government information. Individual interests in seeking information may coincide with the public interest.

19. The term ‘public interest’ is not a defined or fixed concept. In Director of Public Prosecutions v Smith [1991] 1 VR 63 the Supreme Court of Victoria Appeal Division found:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals".

20. Section 13 of the GIPA Act sets out the "public interest test" for determining whether there is an overriding public interest against disclosure of information in the following terms:

13 Public interest test

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

21. The test in section 13 requires the Tribunal as decision-maker to attribute weight to each consideration for and against disclosure, and determine whether the balance of the public interest lies in favour of, or against, disclosure of government information: Hurst v Wagga Wagga City Council [2011] NSWADT 307; Flack v Commissioner of Police, NSW Police [2011] NSWADT 286. The GIPA Act provides no set formula for calculating the weight of considerations for determining whether one set of considerations outweighs the other, and the Tribunal has stated that "any reasonable approach that follows section 15 principles seems to be acceptable ... it is really a matter of placing identified considerations in order of priority or importance": Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 at [96]. The balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].

22. Section 14(2) of the GIPA Act relevantly provides that the public interest considerations listed in the Table to section 14 are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Public interest considerations in favour of disclosure

23. The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. The Respondent has identified the following public interest considerations in favour of disclosure of the withheld information:

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

2. disclosure could reasonably be expected to inform the public about the operations of Legal Aid and, in particular, its policies and practices for dealing with complaints from members of the public.

3. issues relating to ICLs and more broadly issues relating to family law proceedings involving children are a matter of public importance and disclosure of some of the information sought may contribute to informed debate on such issues

4. some of the information requested contains personal information of the Applicant.

5. the Applicant's personal factors in favour of providing the access. The Applicant has a legitimate interest in understanding how his complaint has been handled.

24. I agree that these are relevant public interest in favour of disclosure of the withheld information

Public interest considerations against disclosure

25. The Respondent has identified a number of public interest considerations against disclosure. It relies on the public interest considerations against disclosure in clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b), 3(e), 3(g) and 6 of the table to section 14 of the GIPA Act.

26. Clause 1 of the table to section 14 of the GIPA Act provides:

1. Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

…

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

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

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

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

...

27. Clause 3 of the table to section 14 of the GIPA Act provides:

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a)   reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

(e)   reveal false or unsubstantiated allegations about a person that are defamatory,

…

(g)   n the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

28. Clause 6 of the table to section 14 of the GIPA Act provides:

6(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

29. “Personal information” is defined in clause 4 of Schedule 4 to GIPA Act in the following way:

4 Personal information

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

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

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

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

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

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

30. The expression “personal information” is defined in section 4 of Privacy and Personal Information Protection Act 1998 (NSW) (“the PPIP Act”) in a manner similar but not identical to the manner in which it is defined in the GIPA Act.

31. Section 18 of the PPIP Act provides:

18 Limits on disclosure of personal information

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

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

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

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

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

32. Section 55 of the GIPA Act provides for the consideration of personal factors of application. Section 55 provides:

55 Consideration of personal factors of application

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

(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.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note—

An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

33. Section 73(1) of the GIPA Act provides:

73 Access to be unconditional

(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.

34. The Respondent acknowledges that the Applicant has significant concerns regarding the conduct of the ICL in the context of his family law proceedings, and that he has legitimate motives for seeking access to information. The Applicant's motive for seeking information is a personal factor that tends to lend weight to considerations favouring the disclosure of the requested information under section 55 of the GIPA Act in so far as he seeks information relating to his own complaint.

35. Where an application for review of a reviewable decision is made to the Tribunal, section 105(1) of the GIPA Act provides that 'the burden of establishing that the decision is justified lies on the agency'. That is, the Respondent bears the onus to establish that the information to which the Applicant has sought access should not be released.

36. As a person who could be aggrieved by the Tribunal’s decision, the ICL has a right under section 104 of the GIPA Act to appear and be heard. She has exercised that right and she opposed the release of the withheld information. Section 104 of the GIPA Act provides:

104 Right of appearance before NCAT

(1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.

(2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).

(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

37. Section 113 of the GIPA Act provides certain protections in respect of actions for defamation or breach of confidence:

113 Protection in respect of actions for defamation or breach of confidence

(1) If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made—

(a) no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and

(b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency.

(2) Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.

38. Section 121 of the Family Law Act 1975 (Cth) places restrictions on the publication of any account of proceedings before the court. Section 121 provides:

121 Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

1. A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

2. Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:

   (a) it contains any particulars of:

   (i)   the name, title, pseudonym or alias of the person;

   (ii)   the address of any premises at which the person resides or works, or the locality in which any such premises are situated;

   (iii)   the physical description or the style of dress of the person;

   (iv)   any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

   (v)   the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

   (vi)   the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

   (vii)   any real or personal property in which the person has an interest or with which the person is otherwise associated;

   being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

   (b) in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or

   (c) in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.

(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.

(5) An offence against this section is an indictable offence.

(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

(9) The preceding provisions of this section do not apply to or in relation to:

(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or

(b) the communication of any pleading, transcript of evidence or other document to:

(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or

(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or

(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or

(d) the publishing of a notice or report in pursuance of the direction of a court; or

(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or

(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:

(i) a separate volume or part of a series of law reports; or

(ii) any other publication of a technical character; or

(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or

(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or

(ii) to a person who is a student, in connection with the studies of that person; or

(g) publication of accounts of proceedings, where those accounts have been approved by the court.

1. Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.

Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.

1. In this section:

court includes:

(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and

(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.

electronic means includes:

(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

39. Section 25 of the Legal Aid Commission Act 1979 (NSW) (“the LAC Act”) provides:

25 Solicitor-client relationship

(1) The relationship arising by virtue of this Act between a solicitor, whether the solicitor is the Chief Executive Officer or a member of staff of the Commission or from a law practice to whom work is assigned under this Act, and an applicant for legal aid or a person to whom legal aid is granted shall be the relationship as between a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client.

(1A) The relationship that arises as referred to in subsection (1) between a solicitor and a person who is an applicant for legal aid or who is a person to whom legal aid is granted arises only in the context of functions performed by the solicitor in the course of acting for the person as solicitor. That relationship does not arise therefore in the course of the exercise of functions under this Act in arranging for a law practice to act on behalf of the person.

(2) The like privileges as those which arise from the relationship of a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client shall arise between the Commission or a committee established under this Act and an applicant for legal aid or a person to whom legal aid is granted.

(3) Without affecting the generality of subsection (1) or (2), the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid.

(4) Nothing in subsection (1), (2) or (3) applies in respect of--

(a) the conduct of any matter necessary for the proper administration of this Act (including an agreement or arrangement referred to in section 72A),

(b) proceedings for an offence connected with the administration of legal aid,

(c) any disciplinary proceedings under the Legal Profession Uniform Law (NSW) ,

(d) any proceedings by which the Commission is seeking to recover money from a person in respect of whom legal aid has been granted,

(e) an investigation or inquiry under the Ombudsman Act 1974 ,

(f) the exercise by the Auditor-General of his or her functions under this Act or any other law,

(g) the carrying out by a person of any research approved by the Commission, being research carried out in a manner that ensures that the identity of an applicant for legal aid or a person to whom legal aid is granted is not disclosed to other persons,

(h) the divulging of information to a person concerning an application for legal aid made by or on behalf of the person (including such matters as the basis for the refusal of any such application),

(i) the divulging of information to a person to whom legal aid has been granted concerning the administration of the grant of legal aid,

(j) the divulging of information for the purpose of facilitating the conduct of alternative dispute resolution under Part 3A,

(k) the divulging of information obtained from a person, with the consent of that person, or

(l) the divulging, with the consent of the Commission, to any court or tribunal of information or a document concerning any of the following matters--

(i) whether or not an application for legal aid has been made by a particular person,

(ii) whether such an application was granted or refused,

(iii) the grounds on which such an application was granted or refused (including information as to the means of the applicant),

(iv) whether a person has appealed against the refusal of such an application.

(5) The Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person, court or tribunal the identity of a person from whom the Commission, the committee, the Chief Executive Officer or the member of staff receives information concerning--

(a) a breach or alleged breach of a condition on which legal aid has been granted or provided, or

(b) a breach or alleged breach of a requirement of this Act or the regulations (for example, a failure to notify the Commission of a change in the means or circumstances of a legally assisted person as required under section 38A (1)), or

(c) the commission or alleged commission of an offence in connection with the administration of legal aid.

(6) For the purposes of this section--

(a) an applicant for legal aid includes a person who requests legal advice but no other form of legal aid, and

(b) a person to whom legal aid is granted includes a person to whom that advice is given, and

(c) an application for legal aid includes a request for that advice.

40. Section 26 of the LAC Act provides:

26 Divulging of certain information prohibited

(1) A person engaged in the administration of this Act must not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid.

Maximum penalty--50 penalty units or imprisonment for 6 months.

(2) This section does not prevent the divulging of information or a document if the information or document is divulged--

(a) in connection with the administration of legal aid, or

(b) as referred to in section 25 (4).

(3) This section does not limit the operation of section 25. Consequently, a member of the Board, a member of a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission cannot be required to divulge any information or document merely because the divulging of the information or document is not prohibited by this section.

(4) For the purposes of this section, an application for legal aid includes a request for legal advice but no other form of legal aid.

Material before the Tribunal

41. The withheld information has been filed with the Tribunal on a confidential basis. The Respondent relies on written submissions and the evidence of Ms Melissa Burgess, the Acting Manager of its Professional Practices Branch (“the PPB”). Ms Burgess attended the hearing and was cross-examined. The Applicant relies on his own evidence. He provided a statement and written submissions. The ICL provided a statement and made written and oral submissions.

The ICL’s position

42. The ICL is largely in agreement with the Respondent’s view that the withheld information should not be released. She contends that the release of the information sought by the Applicant would be an invasion of her privacy and have the potential to cause her irreparable professional harm. She submitted that the Applicant’s intention is to have her removed from the roll of legal practitioners and to pursue monetary compensation.

43. She stated that as far as she is aware there were no complaints to the Respondent prior to November 2019 nor are there multiple complaints. Accordingly, as far as she is aware, the documentation that the Applicant seeks does not even exist.

44. She further submitted that if the Respondent does hold the requested information it should not be provided to the Applicant in circumstances where it has not even been provided to her.

45. She submitted that the Applicant has incorrectly stated that he requires information for the Law Society of NSW and/or the Office of the Legal Services Commission. She submitted that if either of those bodies required information then a request would be made directly of the Respondent. There would be no requirement that the Applicant obtain that information through a GIPA access application. Further, if the Law Society of NSW and/or the Office of the Legal Services Commission required information relating to other families, it would be obtained directly from those persons.

46. She further submitted that the Applicant has demonstrated through his submissions to this Tribunal that he is prepared to engage in defamatory actions and that he would likely misuse any other information provided to him.

The Respondent’s case

47. The Respondent has the onus of establishing that the decision is justified. As noted, it relies on the evidence of Ms Melissa Burgess who provided a statement, attended the hearing and was cross-examined.

Ms Melissa Burgess

48. Ms Burgess is responsible for managing the appointment of private legal practitioners to Legal Aid panels and compliance with the Respondent’s Quality Standards. Private solicitors appointed to these panels may be assigned work on behalf of persons in receipt of legal aid. The type of work assigned to panel solicitors includes ICL work.

49. Prior to July 2020, the appointment and management of private solicitors to panels was governed by Division 2 of Part 3 of the LAC Act. Those procedures are no longer prescribed by legislation, but are managed in accordance with the Respondent’s internally developed policy frameworks. In particular:

1. the Respondent’s Quality Standards apply to all legal practitioners who undertake legal aid work, and set out Practice Standards, Client Service Standards, Panel Requirements and Law Practice Requirements;

2. The process for removal from a panel is now set out in the Removals Process Guidelines.

50. Additionally, panel lawyers are required to enter into a Panel Service Agreement with the Respondent, which sets out the terms on which it is agreed that the panel lawyer will undertake legal work on behalf of the Respondent. The Agreement includes provisions dealing with removal from a panel where there has been a breach of the Agreement.

51. The PPB is responsible for monitoring the performance of Panel lawyers and ensuring their compliance with the Quality Standards and the requirements of their service provision agreements.

52. Ms Burgess explained that the ICL was assigned work as an ICL under that scheme and was subsequently removed from the ICL panel. Ms Burgess was involved in the processes leading up to that removal.

53. Ms Burgess identified the withheld information as including:

1. complaints made by individuals other than the Applicant, information provided in connection with those complaints including court documents from family law proceedings, and correspondence with those individuals;

2. correspondence with the ICL relating to the complaints, including her response; and

3. internal correspondence within the Respondent regarding the management of complaints.

54. Ms Burgess observed that the ICL’s responses include her personal information and the ICL did not consent to her responses being provided to the Applicant. The internal correspondence relating to the Respondent’s management of the complaints also includes personal information and reveals details of the family law proceedings to which the complaints relate.

55. Ms Burgess is also aware of the Applicant's complaint regarding the ICL.

56. She provided details in regard to how the Respondent dealt with the complaint and identified the correspondence that took place between the Respondent and the Applicant and between the Respondent and the ICL in relation to that complaint. She also outlined the approach that the Respondent took in relation to the Applicant’s GIPA access application.

57. In regard to complaints regarding panel lawyers Ms Burgess explained:

Members of the public may access information about making complaints on the Respondent's website. The website has provision for making a complaint through an online complaints form. Complaints may also be made verbally by telephone, verbally in person, by email, or by completing the Feedback process through the Respondent's website.

Where an applicant lodges a complaint through the Respondent's website, they are prompted to indicate whether or not they consent to their complaint being provided to the practitioner. Where a complaint is received by some other channel, such as email, contact will usually be made with the complainant to ask whether or not they consent to their complaint being passed on by the practitioner.

Once a complaint is received by the Respondent, a letter is sent to the complainant, confirming receipt and advising that it the complaint is being considered. On occasion, it may be necessary to seek further information or clarification from the person raising the complaint.

Where the PPB receives a serious complaint, or is notified of a potential serious issue, the PPB conducts an initial assessment to determine whether further investigation is warranted. As part of this process, the PPB may consider other sources of information as well, including consideration of court transcripts, previous correspondence or complaints data records. The primary purpose of this preliminary review is to ascertain whether there has been a potential breach of the Panel Service Agreement.

Following this preliminary review, a determination is made as to whether the complaint warrants further investigation and/or action and whether any immediate action is required (such as ceasing to allocate matters for the duration of the investigation). Issues arising on the preliminary review also form the basis for correspondence sent to the practitioner about whom the complaint is made.

A letter will then be sent to the practitioner, advising them that a complaint has been made and asking them to respond to the issues raised within a particular timeframe, usually 28 days. Where the complainant has consented, a copy of the complaint will be provided to the practitioner for their review and response.

On occasion, a complainant will not consent to their identity being revealed to the practitioner. In those circumstances, the complainant will not be identified, so long as it is possible to still convey the substance of the complaint and the issues raised in a manner allowing the practitioner to understand the issues and respond. For example, it may be possible to obtain transcript from proceedings and identify issues arising by reference to that transcript, without identifying the person who initial raised the concerns.

Once a response from the practitioner is received, an assessment will be made as to whether there has been a breach of the Panel Service Agreement. A submission is prepared by a solicitor in the PPB for the Deputy CEO which includes a table of evidence received, any response received from the practitioner, and a recommendation as to what action to take. Possible outcomes include that no further action be taken; a requirement that the practitioner undertake training; conditional panel membership such as limited the number of legally aided matters the practitioner can have, or removal from the Panel.

The practitioner will then be advised of the outcome of the complaint and any further action that will be taken. Where there has been a decision to remove the practitioner from a panel, the removal takes immediate effect.

58. Ms Burgess stated that high standards of confidentiality are observed at all times during the complaints management process. If a complainant does not wish to be identified or involved in the process, their wishes are respected. Similarly, any response received from the practitioner will be treated confidentially and, as a matter of practice, is not provided to the complainant without the practitioner's consent. As a matter of practice, information obtained in the course of considering and responding to a complaint would not be disclosed outside the complaint process.

59. Ms Burgess also stated that where complaints have been made by clients of the Respondent, the Respondent is bound by the client/practitioner relationship and the obligations of confidentiality that attend that relationship. This relationship is recognised in sections 25 and 26 of the LAC Act. It is also her experience that confidentiality is maintained as a matter of practice, and that information is not disclosed outside the complaint management process, except to the extent that the law requires.

60. Ms Burgess also stated that in her experience stakeholders in a complaint management process expect that the process will be managed confidentially.

61. She stated that in order to carry out its functions of monitoring the compliance and conduct of panel lawyers the Respondent relies on people raising concerns about practitioners. It is vital to the performance of the PPB's functions that individuals are able to raise concerns without the fear of their information being publicly disclosed.

62. She is concerned that the disclosure of the identity of complainants or information supplied would be considered a breach of trust. She believes that complainants, particularly other practitioners, would be reluctant to raise issues and make complaints in the future if their confidentiality could not be adequately assured. Treating complaints with confidentiality provides the complainants with confidence that they can make a complaint that will be investigated, and that their identity and personal or sensitive information will be protected.

63. Ms Burgess is also concerned that if complaints or allegations are unsubstantiated or unfounded the disclosure of information could lead to damage to the professional reputation of the individuals who are the subject of the allegations.

64. She also noted that much of the withheld information relates to the conduct of family law proceedings. The information is highly sensitive in nature, including information about personal relationships within families, details of interpersonal conflicts, and information relating to children. She referred to section 121 of the Family Law Act and noted that there is a strict prohibition on the publication or dissemination of information relating to family law proceedings.

65. Ms Burgess did not vary her evidence in any material sense under cross-examination.

The Respondent’s submissions

66. Ms Mattes provided both written and oral submissions in support of the Respondent’s decision.

The Applicant’s case

67. The Applicant relies on his own evidence and submissions. He provided a statement in which he set out details in relation to a complaint about the ICL that he made to the Respondent in November 2019. He also noted that he has submitted a complaint to the OLSC in relation to the ICL.

68. The Applicant provided medical information in relation to his children. He also provided various news articles in relation to evidence given at an inquest in the NSW Coroners Court in relation to a family case that is unrelated to the Applicant.

69. It is his position that it is overwhelmingly in the public interest to release the withheld information to hold the ICL and the Respondent accountable for their actions. He submitted that he needs to access the withheld information to determine his legal case against the ICL and potentially the Respondent. He says that OLSC has requested the information as part of its investigation into his complaint against the ICL.

70. In the alternative he submitted that if the Tribunal finds that it is not in the public interest to release the information in its original form, then it should be released in a redacted form, suitably redacted to protect the personal and health information of the parties involved in any other complaints against the ICL.

Discussion - Public Interest Considerations against disclosure

71. There are 66 documents in issue. The withheld information has been provided to the Tribunal on a confidential basis. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to this material. The Respondent has also provided a detailed index to the withheld information. It includes complaints made by individuals other than the Applicant; information provided in connection with those complaints, including court documents from family law proceedings; correspondence with those individuals; correspondence with the ICL relating to the complaints, including her response; and internal correspondence within the Respondent regarding the management of complaints. As noted, the Respondent has identified the withheld information as falling into two categories:

1. internal correspondence relating to the Applicant's complaint (Category A); and

2. other complaints received by the Respondent in relation to the ICL (Category B).

72. Documents 1 - 44 of the Confidential Bundle relate to Category B. Documents 45 - 66 in the Confidential Bundle relate to Category A.

73. The Respondent's decision was to refuse access to all information falling within Categories A and B on the basis that there were overriding public interest considerations against disclosure of the information.

The Table to section 14

74. The Respondent has identified a number of clauses in the table to section 14 as relevant public interest considerations against disclosure. It is submitted that the considerations against disclosure at clauses 1(d), 1(e), 1(f), 1(g), 3(a), 3(b), 3(e), 3(g) and 6 of the Table to section 14 apply with respect to the withheld information. That is, the disclosure could reasonably be expected to:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions - clause 1(d);

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency - clause 1(e);

3. prejudice the effective exercise by an agency of the agency's functions - clause 1(f);

4. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence - clause 1(g);

5. reveal an individual's personal information - clause 3(a);

6. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 - clause 3(b);

7. reveal false or unsubstantiated allegations about a person that are defamatory - clause 3(e);

8. not be in the best interests of the child where the personal information is about a child - - clause 3(g); and

9. contravene a provision of another Act or statutory rule that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions - clause 6.

75. In contrast, the Applicant submitted that either the considerations against disclosure fail, are trivial or are ultimately overwhelmed by those public interest considerations favouring disclosure.

Clauses 1(d) and 1(f) - prejudice supply of confidential information; prejudice effective exercise of agency's functions.

The Respondent’s arguments

76. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions (clause 1(d)). Relatedly, it is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)).

77. The relevant elements of clause 1(d) are that:

1. the information was obtained in confidence;

2. the information facilitates the effective exercise of the agency's functions; and

3. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future.

78. The Respondent submits that the withheld information was supplied as part of its process for receiving and managing complaints about practitioners appointed to its panels. It relies on the evidence of Ms Burgess that high standards of confidentiality are observed throughout this process. In particular, Ms Mattes referred to Ms Burgess’ evidence that:

1. it is her experience that all stakeholders in the complaints management process (including complainants, the practitioners about whom the complaint has been made and Legal Aid staff) have an expectation that the information they have supplied will be managed confidentially; and

2. it is her experience that confidentiality is maintained as a matter of practice and that information is not disclosed outside the complaint management process, and not outside of the Respondent except to the extent the law requires.

79. The Respondent submits that the emphasis it places on confidentiality is apparent from certain aspects of the complaints management process and it is also apparent from the face of the documents in issue. In particular, when a person makes a complaint through the Respondent's website, they are asked whether or not they consent to their complaint being provided to the practitioner. Where a complaint has been made by some other channel, the Respondent will follow up with the complainant to ascertain whether they consent to their complaint being provided. Where consent is not given, the complainant's identity will not be disclosed.

80. Any response received from a practitioner in relation to a complaint is also treated confidentially and, as a matter of practice, it is not provided to a complainant. This would only be provided with the practitioner's consent.

81. Where complaints are made by clients of the Respondent, the complaint is made in the context of a solicitor-client relationship. The Respondent submits that in that situation sections 25 and 26 of the LAC Act apply to the information.

82. The Respondent submits that, in effect, panel lawyers act as agents of the Respondent in their provision of legal services to the Respondent's clients. It contends that, to the extent that the PPB monitors the conduct and compliance of panel lawyers, and responds to complaints about them, this process is analogous to investigations of internal complaints and allegations of employee misconduct. Ms Mattes referred to the decision in EIF v Legal Aid NSW [2020] NSWCATAD 113 at [83] where Senior Member Mulvey stated:

“It is accepted that panel lawyers are not employees of the respondent. However, in considering the functions of the respondent as set out in Division 2 of Part 3 of the LAC Act, the same considerations apply in my view. The respondent can assign work to panel solicitors and in doing so place conditions on members of panels, investigate breaches of service provision agreements and undertake audits with respect to the work carried out by those panel lawyers. Those functions are analogous in my view to the way in which information is provided relevant to investigations with respect to what could be expected of an employee/employer relationship”.

83. Ms Mattes referred to the Appeal Panel decision in Commissioner of Police & New South Wales Police Force v Camilleri [2012] NSWADTAP 19 at [28] – [29] as support for the submission that the second limb of clause 1(d) is not concerned with whether a particular complainant whose complaint is disclosed would in future refuse to supply relevant information. Rather, the question as to prejudice is to be determined at a broader operational level. Clause 1(d) is concerned with the question of whether disclosure of this type of information would impair the general ability of the agency to obtain that type of information in the future. Ms Mattes noted Ms Burgess’ evidence that:

1. she is concerned that people would consider disclosure of their information to be a breach of trust, and would cause people to be reluctant to raise issues and make complaints in the future if their confidentiality could not be adequately assured;

2. legal practitioners and judicial officers can be particularly reluctant to make complaints about other practitioners if their confidentiality cannot be assured; and

3. she is concerned that the disclosure of practitioners’ responses to complaints would lead to practitioners being less forthcoming in their responses to complaints, and unwillingness to participate in the complaints management process.

84. Ms Mattes submits that the Tribunal should accept that the disclosure of the complaints is likely to adversely affect the future flow of information. The disclosure of complaints and information generated in the investigation of complaints could reasonably be expected to prejudice the future supply of that information.

85. Ms Mattes referred to the decision in EIF v Legal Aid NSW at [86] where Senior Member Mulvey stated:

“I accept Ms Dimos’ [the Manager, Professional Practices Branch (PPB), in the respondent’s grants division] evidence in terms of her experience in processing complaints within the respondent’s PPB Division. She is aware of concerns of the complainants and the requests for confidentiality. She states that disclosure of complaints could indeed have a detrimental effect on the ability of the PPB to obtain similar information in the future. Ms Dimos states that disclosures by staff and non-staff are very important contributions to the PPB’s role of monitoring and managing serious complaints about panel lawyers. The inability of the PPB to ensure confidentiality in this regard, in my view, is vitally important to it facilitating the exercise of its function. Disclosure of such information, in my view, could reasonably be expected to prejudice the supply of that information in the future. The absence of the various sources of confidential information obtained by the respondent to investigate complaints would, in my view, compromise its ability to continue to conduct investigations in a fair and effective manner in the future”.

86. Ms Mattes referred to the decision in Robinson v Department of Health [2002] NSWADT 222 at [71] as support for her submission that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who hold relevant information. She submitted that if information obtained confidentially was to be provided to an applicant, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by the Respondent of its functions. Similarly, she referred to the decision in Alexander v University of Sydney [2008] NSWADT 214 at [33] - [35] where the Tribunal considered that the absence of confidential channels of communication would seriously inhibit the University's capacity to identify possible employee misconduct and it would compromise the ability of the University to continue to conduct investigations in a fair and effective manner.

87. Ms Mattes noted that the third limb of clause 1(d) involves consideration of the effect of disclosure on the effective exercise of the agency's functions. She submitted that disclosure of complaints information would prejudice the monitoring and compliance functions of the PPB. This, in turn, would prejudice the effective exercise of the Respondent's core functions of providing legal services to disadvantaged and vulnerable persons. She noted Ms Burgess’ evidence that:

1. the Respondent relies on persons raising concerns about practitioners in order to carry out its functions of monitoring the compliance and conduct of panel lawyers;

2. complaints trigger investigations by the PPB and, where appropriate, referrals to Deputy CEO to consider whether further action be should be taken against the practitioner;

3. without these complaints, potential breaches of service provision agreements would not be brought to the PPB's attention.

88. Ms Mattes submits that any reluctance on the part of individuals to make complaints or raise concerns about panel lawyers would have a negative impact on these functions. Additionally, any reticence on the part of practitioners to respond and participate in the complaints management process would reduce the effectiveness of that process.

89. In order to ensure that appropriate persons are assigned to perform panel work, it is critical that the PPB is able to receive complaints and investigate compliance by those lawyers with quality standards and the requirements of their service provision agreements.

90. It is submitted that in the circumstances of this matter the disclosure of confidential information, relating to the management of complaints about a panel lawyer, could reasonably be expected to prejudice the future supply of such information to the Respondent. The supply of such information is necessary for the effective exercise of the PPB's monitoring and compliance functions and, more broadly, Legal Aid's functions of providing legal services to its clients. For these reasons, the considerations against disclosure in clauses 1(d) and (f) of the Table to section 14 apply, and should be given considerable weight when balancing the public interest.

The Applicant’s arguments

91. The Applicant does not accept that the Respondent’s argument in relation to clauses 1(d) and 1(f) are applicable in circumstances where the agency has failed to manage the ICL scheme appropriately. He submitted that providing complete transparency will ensure public confidence in the Respondent’s processes related to ICL complaints and oversight. He submitted that individuals will complain if they have confidence in the processes and see clearly that their complaints are taken seriously and acted upon promptly. He argues that it is in the public interest that individuals know the processes are impartial and transparent. He contends that accountability and transparency would only encourage complainants to both come forward and make the relevant complaints. Through openness and public scrutiny the public can be satisfied that true accountability is in place where the Respondent’s actions may have led directly to the abuse and harm of children.

92. The Applicant observed that there is a failing in the Respondent's complaints process as it does not give a complainant an opportunity to respond to any submission put forward by a practitioner.

93. In relation to clause 1(f), he submitted that the primary duty of the Respondent is to act swiftly to remove any ICL who is acting inappropriately and putting children at risk of abuse and/or harm. He does not accept that complete transparency would prejudice the effective exercise of the agency's functions in this regard.

94. The Applicant disagrees with the position put forward by Ms Burgess and suggested that the Respondent should contact those families who were aggrieved by conduct of the ICL and ask that they give their consent for the release of their complaints. He submitted that consent would be given if it means that the ICL and the Respondent are held accountable.

95. With respect to the Respondent’s contention regarding the context of a solicitor-client relationship, the Applicant argues that children are not an ICL’s 'clients'. The ICL is there to represent their best interests, which does not form part of a standard "solicitor-client relationship".

96. The Applicant argues that there are multiple exceptions to the secrecy provision of section 26 of the LAC Act, including sub-section 25(4)(c) which concerns disciplinary proceedings under the Legal Profession Uniform Law (NSW). He submitted that disciplinary proceedings are underway as part of the OLSC complaint and investigation process.

97. In relation to evidence given by Ms Burgess the Applicant submitted:

Ms Burgess has been extensively quoted in the respondent's submissions, however, Ms Burgess is the individual who has overseen the complaints management process at the Respondent when the potential failures in the process associated with the ICL have taken place and as such it is submitted her reliability as a witness and expert has to be called into questioned.

98. In regard to the Respondent’s suggestion that its relationship with panel lawyers is analogous to that of an employee/employer relationship, the Applicant submits that the ICL has been removed from the panel and confidentiality is no longer relevant as she has acted outside of the Respondent’s Practice Standards. He also submitted that the health issues of a practitioner can have no relevance to a complaint about their performance as an ICL if their conduct results in the abuse and harm of children. He further submitted that there could be no personal information in a response provided by the ICL that should prevent her being held accountable for her actions and the abuse and harm of children.

99. The Applicant disputes the contention that the disclosure of practitioners’ responses to complaints could lead to practitioners being less forthcoming in their responses, and unwillingness to participate in the complaints management process. He submits that this is pure conjecture and must fail as potentially irrational, absurd or ridiculous. He argues that if an ICL has done nothing wrong there would be no possible reason for them not to respond to a complaint or participate in the complaints management process. He submits that any practitioner who refuses to participate in a complaint process should be immediately removed from the ICL panel.

100. Similarly, the Applicant disputes the claim that the disclosure of the complaints is likely to adversely affect the future flow of information. He submitted that the opposite is true and that accountability and transparency will result in an increase in complaints against ICLs.

101. He also disputes the contention that releasing the withheld information would prejudice the effective exercise of the Respondent’s core functions of providing legal services to disadvantaged and vulnerable persons. He submits that this contention is irrational, absurd or ridiculous as the only disadvantaged and vulnerable persons involved are the children who have been abused and harmed by an ICL.

102. Having regard to these matters, it is submitted that the considerations against disclosure should be given minimal weight when balancing the public interest.

Discussion

103. The Tribunal has recognised in a number of cases that the effective performance of an agency’s functions depends to a significant extent on the performance and management of its staff. Agencies rely on the cooperation of staff to obtain access to the best information on which to make findings and take action in cases of misconduct. The effective performance of an agency’s employer functions requires that complaints relating to employee misconduct are handled confidentially.

104. In the circumstances of this matter I am satisfied that the relationship between the Respondent and panel lawyers is analogous to that of an employee/employer relationship.

105. The Tribunal in Collins v Department of Finance, Service and Innovation (2018) NSWCATAD 60 at [61] cited the three steps the Tribunal should consider in determining the application of clause 1(d). The first being that the information was obtained in confidence, the second is that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future and, thirdly, the information facilitates the effective exercise of the agency’s function.

106. Clause 1(f) relates solely to the reasonably expectation of prejudice to the effective exercise of the agency’s functions concerning the information sought to be disclosed. The clause requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d), this provision has often been considered in relation to an agency’s assertion as to the importance of obtaining confidential information in order to exercise its functions effectively. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions.

107. The evidence in this matter establishes that the withheld information was obtained in confidence. The evidence of Ms Burgess establishes that the information facilitates the effective exercise of the agency’s function and it is her view that the disclosure of information could reasonably be expected to prejudice the supply of information to the agency in the future.

108. I do not agree with the Applicant’s submission regarding Ms Burgess’ reliability as a witness. I accept her evidence in regard to the consequences that could reasonably be expected from the disclosure of withheld information. The Applicant’s focus is on the specific complaints against the ICL However, the Tribunal has recognised in a number of cases that the question as to prejudice is to be determined at a broader operational level rather than with respect to a specific complaint.

109. I do not accept that the views that Ms Burgess has expressed are irrational, absurd or ridiculous. While I agree with the Applicant that accountability and transparency might result in increased participation by some individuals, it is my view that the more likely outcome from disclosure of the withheld information is reticence on the part of practitioners to respond and participate in the complaints management process. This is consistent with the view expressed by the ICL that the release of the information sought by the Applicant would have the potential to cause her irreparable professional harm. If other practitioners adopted a similar view it is likely that they would significantly limit the information that they would be prepared to provide to the Respondent if they became aware that their responses would be released in response to a GIPA access application.

110. Further, in a number of cases the Tribunal has accepted that revealing how an internal disciplinary matter is investigated is undesirable and may prejudice the effectiveness of future investigations.

111. In my view, this could indeed have a detrimental effect on the ability of the Respondent to obtain similar information in the future.

112. I agree with the Applicant that if it was possible to remove the name and identifying details of the individuals concerned, the overriding public interest against the release of the remainder of the document may not arise. However, for the reasons argued by the Respondent, those redactions are not practicable in the circumstances of this matter.

113. I agree with the Applicant that it is likely that individuals will engage with the Respondent if they have confidence in the complaint management processes and can see clearly that their complaints are taken seriously and acted upon promptly. However, in my view the maintenance of confidentiality of the information that is provided is an essential element if confidence in the processes is to be reached.

114. The arguments put forward by the Applicant regarding accountability and transparency are considerations in favour of the release of the withheld information and should be given reasonable weight. However, they are not conclusive. It is necessary to undertake a balancing process between the considerations in favour of release and those against release of the withheld information.

115. In my view, the Respondent’s ability to carry out its functions effectively would be limited significantly if the withheld information did not remain confidential. In these circumstances, disclosure of this information would reasonably be expected to prejudice the effective exercise of the Respondent’s functions Clauses 1(d) and (f) apply to each of the documents and should be given significant weight.

116. In my view, the considerations against release of the withheld information far outweigh those in favour of release when the competing considerations are balanced. Clauses 1(d) and (f) apply to each of the withheld documents and in my view are determinative of this matter. In the circumstances, the withheld information should not be released.

117. Having formed this view it is not necessary that I consider the other public interest considerations. Nevertheless, for completeness, I will deal with them briefly.

Clause 1(e) - reveal deliberation or consultation conducted, opinion, advice or recommendation given, prejudice deliberative process

The Respondent’s arguments

118. Ms Mattes submitted that it is apparent from the face of the withheld documents that they each reveal information that is in the nature of "deliberations" or "consultation conducted" with respect to the complaints, and "opinions, advice and recommendation[s]" given. This is particularly the case with:

1. correspondence with the ICL seeking her response to issues raised and her response; and

2. internal correspondence within the Respondent regarding complaints management.

119. Thus, she submitted, the first element of clause 1(e) is satisfied.

120. For clause 1(e) to apply, it must also be established that disclosure of this information would reasonably be expected to prejudice the deliberative process of government or an agency. Ms Mattes referred to the decision in Fire Brigade Employees' Union v Fire and Rescue NSW [2014] NSWCATAD 113 as support for her submission that the government or agency's deliberative processes may be described as the "internal thinking" on an issue. Principal Member Higgins stated at [58]:

58. The meaning of the term 'deliberative process' was considered by the AAT, in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in s 36 of the Commonwealth Freedom of Information Act 1982 (FOI Act (Cth)), as it applied at that time. Although cl 1(e) of the GIPA Act and s 36 of the FOI Act (Cth) (as it applied in 1984) are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive:

58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. ...

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. ... Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". ...

61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. ...

121. I agree with that view.

122. Ms Mattes referred to the decision in Van der Wall v University of Sydney [2008] NSWADT 213 at [36] as support for her submission that a relevant connection must be established between the deliberation as contained in the information that is in dispute and the deliberative processes that would be prejudiced.

123. She submitted that disclosure of information would prejudice future consultation and the deliberative process more generally, with respect to complaints about panel lawyers. She noted Ms Burgess’ evidence that internal consultations and deliberations are undertaken with the expectation that they are confidential. She also submitted that it is apparent from the documents that these internal deliberations often require engagement with the underlying facts and circumstances of the complaint and that this may be highly sensitive and reveal the personal information of persons who are involved. Staff may be reluctant to engage in frank and open discussion or, at least, to commit these deliberations to paper if these consultations were open to public scrutiny.

124. She also noted Ms Burgess’ view that any reluctance on the part of practitioners to participate in the complaints management process and to provide a fulsome response to issues raised would have a detrimental impact on the Respondent’s complaints management process.

125. For these reasons the Respondent contends that disclosure of information revealing deliberations and consultation in regard to complaints about panel lawyers would prejudice future deliberative processes as part of the complaints management process. Clause 1(e) applies as a consideration against disclosure of information revealing these deliberations and consultation.

126. Ms Mattes submitted that this likely prejudice also provides a further basis for the application of clause 1(f) as a consideration against disclosure.

The Applicant’s arguments

127. The Applicant submits that the Respondent’s arguments do not take into account the potential failure of the complaints management process within the agency and the urgent requirement to bring transparency to the inner workings of the ICL scheme. He submits that it is in the public interest that there is complete and utter transparency throughout complaints management processes to ensure that the Respondent acts first and foremost in the best interests of any children at risk of harm.

128. The Applicant submits that the first element of clause 1(e) is not satisfied. It is submitted that this conclusion is flawed. He says that the complaints management process failed and should be opened to public scrutiny. It is in the public interest to understand why the ICL was removed from the ICL panel and why she was not disciplined or removed earlier. He submits that it is in the public interest to determine if the Respondent realised it had made a grave error in not removing the ICL earlier.

129. It is submitted that it is the Respondent’s "thinking processes" and "wisdom” that need to be exposed to public scrutiny to determine if there was a systemic failure in the agency's internal oversight processes.

130. The Applicant disputes Ms Burgess’ belief that disclosure of the withheld information would prejudice future consultation and the deliberative process generally and with respect to complaints about panel lawyers. He submits that there is a fundamental flaw in Ms Burgess’ assertions that internal consultations and deliberations are undertaken with the expectation that they are confidential and that if these consultations were open to public scrutiny, staff may be reluctant to engage in frank and open discussion. He submits that the Respondent’s staff should be held fully accountable for their actions in processing complaints. There needs to be complete impartiality and transparency, and the "consultations and deliberations" should be totally open to public scrutiny.

131. He also disputes that there would be any reluctance on the part of practitioners to participate in the complaints management process or that they might be reluctant to provide a fulsome response to whatever issues have been raised. He submits that the Respondent’s submissions are flawed in that regard. Rather, he contends that disclosure of information revealing deliberations and consultation in regard to complaints about panel lawyers would provide public confidence in the agency's complaints management process.

132. He submits that the considerations against disclosure should be given minimal weight when balancing the public interest.

Discussion

133. The Respondent contends that this consideration is applicable to two categories of the withheld information: (a) correspondence with the practitioner seeking her response to issues raised and her response (Documents 10, 11, 23, 24, 25, 29, 30, 31, 36, 37, 38, 42 and 43) and (b) internal correspondence within Legal Aid regarding complaints management (Documents 7, 8, 9, 10, 11, 23, 24, 25, 29, 30, 31, 36, 37, 38, 39, 41, 42, 43, and 45-67).

134. “Deliberation” means “The action of deliberating: careful consideration with a view to decision”: see The Shorter Oxford English Dictionary. There can be no doubt that the release of the documents under consideration would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given.

135. The expression “deliberative processes” appears to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency: see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at [58] - [61].

136. The Tribunal has recognised in a number of cases that the release of records revealing sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues. Staff may feel inhibited in providing frank and honest views regarding such issues, or may decline to participate in the deliberative process altogether. Staff may also feel reluctant to commit their views in writing, and may only feel comfortable participating in deliberations orally: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.

137. In circumstances where any oral communication would remain confidential, officers should be able to do freely, in written form, what they could otherwise do orally. Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account. If they were to be released for public scrutiny, officers may feel reluctant to make a written record in the future, to the detriment of these processes and the public record: McKinnon v Department of Treasury [2006] HCA 45.

138. I accept the evidence given by Ms Burgess and I find that in the circumstances her concerns regarding the potential prejudice to the Respondent’s deliberative process that might follow as a consequence of releasing these documents are reasonable.

139. In my view, disclosure of this information could reasonably be expected to prejudice the Respondent’s deliberative process. Clause 1(e) applies to the identified documents and should be given significant weight.

Clause 1(g) - disclosure of information provided in confidence

The Respondent’s arguments

140. The Respondent submits that the information provided in connection with the complaints management process was provided in confidence. In particular, the Respondent relies on Ms Burgess' evidence regarding:

1. the expectations of all stakeholders as to confidentiality;

2. her experience that confidentiality is, as a matter of practice, strictly observed and that information is not disclosed beyond the complaints management process;

3. specific practices that reflect the confidentiality of information; and

4. the statutory context in which the information is supplied.

141. It is submitted that that the consideration against disclosure in clause 1(g) is engaged and should be given considerable weight.

The Applicant’s arguments

142. The Applicant does not accept the Respondent’s arguments as he contends that confidentiality only applies where the system in question is trusted by the public and contains the relevant levels of accountability and transparency.

143. He submitted that this consideration against disclosure is not engaged and should be given minimal weight.

Discussion

144. For this public interest consideration against disclosure to apply, it must be established that the information was provided in confidence. This is ultimately a question of fact. That requires examination by reference to the evidence concerning the conditions under which the information in issue was obtained: AFW v WorkCover Authority of NSW [2013] NSWADT 51 at [34].

145. In Commissioner of Police (NSW) v Camilleri, at [33], the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received".

146. I find that the withheld information was obtained in confidence and therefore the clause 1(g) is engaged. However, the possibility of an action for breach of confidence is restricted by section 113 of the GIPA Act.

147. In my view, there is public interest against disclosure of the information contained in those documents on the basis that the disclosure of the information provided to the agency was in confidence. This consideration should be given reasonable weight.

Clauses 3(a) and 3(b) - disclosure would reveal personal information and contravene privacy legislation

The Respondent’s arguments

148. The Respondent submits that a significant proportion of the withheld information contains the personal information of a number of individuals and that it would not be possible to redact or otherwise de-identify this information in such a way as to overcome these considerations against disclosure.

149. The Respondent relies on Ms Burgess’ evidence that the withheld information includes:

1. complaints made by individuals;

2. information provided in connection with those complaints (including court documents from family law proceedings);

3. and correspondence with the individuals who have made the complaints.

150. The Respondent submits that the identities of those who have made the complaints is apparent, as is the identity of a number of other individuals associated with the complainants who are named in the documents, in particular, other family members, including minors. Further, information relating to the ICL's conduct may be characterised as her personal information.

151. The complaints have been made in connection with the conduct of an ICL in family law proceedings. Much of the information relates to the conduct of those proceedings and can be characterised as highly sensitive in nature.

152. It is submitted that that there is considerable public interest against disclosure of information that has been supplied incidentally and is not directly related to the complaint regarding the ICL.

153. The Respondent further submits that the disclosure of this personal information would contravene section 18(1) of the PPIP Act. That section provides that a public sector agency must not disclose personal information to a person unless the disclosure is directly related to the purpose for which the information was collected and the agency has no reason to believe that the individual concerned would object to the disclosure, or the individual concerned is reasonably likely to have been made aware that information of that kind is usually disclosed to that other person.

154. It is submitted that the complaints were made in confidence and were treated confidentially by the Respondent. Personal information was collected by the Respondent for the purpose of receiving complaints and monitoring the performance and conduct of a panel lawyer. In those circumstances, disclosure of the information in response to an access application would not fall within any of the permitted forms of disclosure for which subsections 18(1) (a) - (c) of the PPIP Act provide. Therefore, disclosure of the information would contravene the section 18.

155. The Respondent further submits that these considerations are compelling and should be given significant weight when balancing the public interest.

The Applicant’s arguments

156. The Applicant does not accept that the withheld material cannot be released in a redacted form. He argues that the family law system functions perfectly well in publishing judgements and using pseudonyms to protect personal information of parties to the proceedings. He submitted that a similar process could be used for the information contained in the complaints made by other parties. He stated that the primary information that he is seeking is the number of complaints against the ICL, the primary basis for those complaints, the outcome of those complaints and whether those complaints resulted in disciplinary action against the ICL.

157. He submits that there is no reason why the complaints cannot be redacted to provide this key information and protect any third parties.

158. The Applicant does not accept that the withheld material is not directly related to his complaint regarding the ICL. He says that a relevant relationship exists because he is seeking the information to determine whether there was a pattern of inappropriate behaviour by the ICL beyond his case. Secondly he wishes to assess whether the Respondent was negligent in its handling of complaints related to the ICL.

159. In relation to the ICL’s personal information the Applicant submitted that the information does not need to be kept secret and should be opened for public scrutiny and it is in the public interest for this information to be released.

160. The Applicant contends that the public interest in favour of disclosure is significant given those objectives.

161. He submits that the considerations against disclosure are not compelling and minimal weight should be given to them when balancing the public interest.

Discussion

162. The expression “personal information” refers to information about an individual whose identity is apparent or can reasonably be ascertained from the information.

163. The disclosure of the complaints would, reveal the identity of the complainants and other individuals who were party to family law proceedings. It would also reveal the facts and circumstances that are the subject of the complaints as well as the opinions expressed by the complainants with respect to the ICL’s conduct. It would also reveal the ICL’s opinions and other personal information.

164. In McKinnon v Blacktown City Council [2012] NSWADT 44 the Tribunal held that information and opinions about the conduct of employees or contractors of the agency in the course of undertaking their duties was ‘personal information’ within the meaning of the GIPA Act.

165. The ICL’s opinions and other personal information is clearly captured by the GIPA Act definition of ‘personal information’. The information about other individuals is also their personal information. That information has not been publicly disclosed and disclosure to the Applicant would ‘reveal’ personal information.

166. In my view the release of the personal information contained within the withheld documents would contravene section 18(1) of the PIPA Act. None of the exceptions in subsections 18(1)(a) to (c) are engaged and therefore section 18(1) applies.

167. I do not agree with the Applicant’s suggestion that the withheld information can be redacted in a way that would de-identify this information to overcome these considerations against disclosure. I agree with the Respondent that because of the context in which the complaints have been made it is highly likely that even with the use of pseudonyms individuals would be identifiable. The release of information under GIPA is unconditional and effectively it is release to the whole world. In my view it is likely that anyone who knows the context of the particular family law proceedings that are the subject of the withheld information would be able to identify some of the individuals concerned.

168. In my view, there is public interest against disclosure of the information contained in those documents on the basis that the disclosure of the information would reveal personal information and contravene privacy legislation. This consideration should be given reasonable weight.

Clause 3(e) - reveal false or unsubstantiated allegations about a person that are defamatory

The Respondent’s arguments

169. The Respondent submits that the public interest consideration in clause 3(e) involves a two limb test: firstly, the allegations must be false or unsubstantiated; and secondly, the allegation must be defamatory.

170. The Respondent relies on views expressed in Hurst v Wagga Wagga City Council where Judicial Member Molony stated at [83] - [84]:

83. ... In helpful submissions on the issue the Information Commissioner said-

"49 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA).

50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory.

51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ...

52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed):

A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:

(1) disparaging him or her;

(2) causing others to shun or avoid him or her; or

(3) subjecting him or her to hatred, ridicule or contempt.

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.

53. The respondent has not considered whether the allegations are defamatory.

84. The construction pressed by the Information Commissioner is broadly consistent with that suggested by the editors of Robinson, NSW Administrative Law (Thompson Reuters) at 50.7270. I accept it.

171. The Respondent submits that some of the requested information contains allegations about the ICL that have not been substantiated, and which are defamatory in the sense that their disclosure would tend to be injurious to her professional reputation.

172. In addition, the Respondent submits that a number of documents include highly inflammatory allegations and assertions about individuals, made in the context of family law proceedings. That information is entirely unrelated to the ICL or any complaint made about her. The Respondent says that those allegations are undoubtedly defamatory in nature and that it is not in a position to assess the truth or otherwise of the allegations.

173. It is submitted that where the information reveals allegations of this nature, clause 3(e) applies as a consideration against disclosure, and should be given significant weight.

The Applicant’s arguments

174. The Applicant submits that any comments that are unrelated to the ICL or any complaint made about her could easily be redacted from the information.

175. He notes that the Information Privacy Commissioner was not satisfied that the Respondent had provided sufficient reasons to establish clause 3(e). The Information Privacy Commissioner noted that it is necessary to consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law.

176. The Applicant submits that any allegations against the ICL are likely to be true and substantiated.

177. He says that these considerations should not be applied as a factor against disclosure, and should be given minimal weight.

Discussion

178. The critical questions are whether the disclosure of the withheld information could reasonably be expected to reveal allegations that were defamatory and whether those allegations are false or unsubstantiated.

179. Pursuant to section 73(1) of the GIPA Act disclosure of the information cannot be made subject to conditions and therefore the disclosure would potentially reveal the allegations more widely than to the Applicant alone.

180. The ICL disputes the allegations and contends that the release of the information has the potential to cause her irreparable professional harm. She further submitted that the Applicant is prepared to engage in defamatory actions and that he would likely misuse any other information provided to him. She has indicated that she has already suffered significant damage to her professional reputation.

181. In my view, some of the allegations about the ICL that were made by the Applicant have not been substantiated and they are defamatory in the sense that their disclosure would tend to be injurious to her professional reputation.

178. I note the Applicant’s assertion that the allegations are true. However, I have no basis on which to assess the truth or otherwise of those allegations. The mere fact that the Respondent may have taken some action against the ICL does not mean that all or even some of the allegations have been substantiated.

179. In regard to allegations and assertions about individuals, I accept that those allegations are also defamatory in nature and I have no basis on which to assess the truth or otherwise of the allegations. In my view there can be no doubt that those allegations are unsubstantiated.

180. I do not agree that it would be practicable to redact the withheld information to extract any parts of the material which is defamatory.

181. In my view, the disclosure of the withheld information could reasonably be expected to reveal unsubstantiated allegations that are defamatory. I consider that this is less significant in the consideration of the balance of public interest than other factors upon which the Respondent relies.

Clause 3(g) - disclosure of information about child would not be in child's best interest

The Respondent’s arguments

186. The withheld information relates to the ICL's conduct as an ICL in family law proceedings. As a result, much of the information relates to the conduct of those proceedings and includes information relating to children involved in those proceedings.

187. The Respondent submits that the information is highly sensitive in nature and includes consideration of matters relating to the health and welfare of children. Where the Applicant was not a party to the proceedings it would not be in the best interests of the children for this information to be disclosed in response to a GIPA application.

188. The Respondent relies on views expressed by Senior Member Hamilton in Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [127]:

“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, and I consider it impossible to conceive of such circumstances in relation to an [Anti-Social Extremism Behaviour] incident. The risk of harm to the interests of a child are obvious”.

189. The Respondent submits that the disclosure of such information would be contrary to community expectations about protecting the privacy of children, particular where information arises in the context of family law proceedings. It further submits that this concern is reflected in statutory provisions, such as section 121 of the Family Law Act, which imposes restrictions on the publication of information relating to family law proceedings.

The Applicant’s arguments

190. The Applicant agrees that the “best interests of the child” is a critical consideration. However, he submits that the primary consideration should always be the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. He contends that in providing this protection is necessary to ensure that children are protected from abusive ICLs and to ensure that the oversight of the ICL scheme works efficiently and with complete transparency.

191. He submitted that this is not a compelling consideration against disclosure and should be accorded minimal weight.

Discussion

192. This public interest consideration against disclosure requires consideration of the effect that disclosure of the particular information would have on the best interest of a child.

193. The withheld documents contain information about named children in relation to family law matters which did not concern the Applicant. There is no evidence before the Tribunal that the guardian of those children has given consent for the information to be disclosed.

194. In Medlyn v Commissioner of Police [2020] NSWCATAD 125 Senior Member Higgins stated at [114] – [117]:

114. In my opinion, the cl 3(g) public interest consideration against disclosure should be construed in the same manner the other public interest considerations against disclosure in the Table to s 14(2) have been construed; namely where:

1. the disclosure is the disclosure of personal information about a child; and

2. the disclosure of information of this kind could reasonably be expected to have the effect that it would not to be ‘in the best interests of the child’ to have it disclosed.

...

117. As noted in [Mansfield v Department of Family and Community Services [2014] NSWCATAD 43] children are particularly vulnerable and in need of protection against any risk of significant harm. Such protections are provided for in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (The Care and Protection Act) and other legislative instruments. The Care and Protection Act contains mandatory reporting requirements of incidents of significant harm to the respondent and other authorised officers. Such reports contain personal information about the child to whom it relates and this information is confidential and not publicly disclosed: see Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29. Disclosure of such information is limited in the interest of the child.

195. I agree with that view.

196. I agree with the Respondent that disclosure of personal information of children would be contrary to community expectations about protecting the privacy of children, particular where information arises in the context of family law proceedings.

197. I accept the Respondent’s submission that it would not be in the best interests of those children for the information about them to be disclosed.

198. Accordingly, I am satisfied that the Respondent has established that this public interest consideration against disclosure applies and it should be given significant weight.

Clause 6 - contravene another Act or statutory rule

199. It is a public interest consideration against disclosure of information if disclosure of the information could be reasonably expected to constitute a contravention of any other Act or statutory rule that prohibits the disclosure of information.

The Respondent’s arguments

200. The Respondent submits that the disclosure of the withheld information would contravene section 26 of the LAC Act. That section provides that a person engaged in the administration of the Act must not divulge any information or document obtained in connection with the administration of legal aid.

201. It is submitted that information obtained in connection with the receipt and management of complaints regarding a panel lawyer, is clearly information and documents obtained in connection with the administration of legal aid. Section 25(4) of the LAC Act provides exceptions to the section 26 provisions however the Respondent submits that those exceptions do not apply to the withheld information in this matter.

202. The Respondent further submits that the policy underlying the prohibition against disclosure in section 26 reflects the core functions of the Respondent in providing legal services. The Respondent provides services to disadvantaged and vulnerable members of the community and there is an expectation that the interests and privacy of those individuals and confidentiality be maintained. Disclosure of the withheld information would, not only contravene the terms of section 26 but would also be inconsistent with the policy underlying that provision.

203. The Respondent submits that for this reason, clause 6 applies as a consideration against disclosure and should be accorded significant weight when applying the public interest test.

The Applicant’s arguments

204. The Applicant submits that disclosure of the withheld information would not contravene the terms of section 26 of the LAC Act because of the exception in section 25(4) of the LAC Act and that it would not be inconsistent with the policy underlying the provision.

205. Section 25(4)(c) refers to an exception for "any disciplinary proceedings under the Legal Profession Uniform Law (NSW)”. The Applicant submits that this provision is relevant in the context of his OLSC complaint in relation to the actions of the ICL.

206. He submits that this consideration against disclosure should be accorded minimal weight when applying the public interest test.

Discussion

207. The Applicant has made a complaint to the OLSC regarding the ICL. It is not clear to me whether or not there are any "disciplinary proceedings" on foot under the Legal Profession Uniform Law. However, even if that is the case I am not satisfied that section 25(4)(c) of the LAC Act is applicable in the present circumstances. That exemption is applicable to the divulging of information or a document in respect of disciplinary proceedings under the Legal Profession Uniform Law. There is no exemption in relation to the release of information in response to a GIPA access application.

208. I agree with the Respondent that provision of information to the Applicant, in response to an access application under the GIPA Act, does not fall within the scope of the section 25(4) exemption.

209. That section provides that a person engaged in the administration of the LAC Act must not divulge any information or document obtained in connection with the administration of legal aid. The withheld information is clearly information and documents obtained in connection with the administration of legal aid. In my view, that provision applies to the withheld information in this matter.

210. I agree with the Respondent that the clause 6 applies as a consideration against disclosure and should be given significant weight.

Where does the balance lie?

211. I find that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.

212. The starting point in the balancing process is the general presumption in favour of government information. I have given reasonable weight to the public interest in transparency of the Respondent’s processes. I accept that transparency will promote public confidence in the manner in which the Respondent handles ICL complaints and its oversight of ICLs.

213. I also accept that the Applicant's personal factors are relevant in that he has a genuine interest in the manner in which the Respondent handles ICL complaints and a particular interest in the way it has handled his own complaint against the ICL. In my view these factors are to be given significant weight in regard to information directly related to his complaint.

214. However, I have agreed with the Respondent in regard to the applicable public interest considerations against disclosure. I do not agree with the majority of the Applicant’s arguments in relation to the weight to be given to those considerations.

215. I have given considerable weight to the public interest considerations against disclosure in clauses 1(d) and 1(f) as I consider that confidentiality of the processes is a significant factor in obtaining information that will allow the Respondent to carry out its oversight functions in relation to ICLs.

216. I have also given considerable weight to the public interest considerations against disclosure in clauses 3(a), 3(b) and 3(g) and in clause 6. While I accept that some of the information indirectly concerns the Applicant, I am not satisfied that the personal information of other individuals can be redacted in a way that will prevent the identification of the individuals concerned. I am satisfied that much of the information is very sensitive. That is particularly the case where it includes personal information about a child. I am satisfied that a disclosure of the information would be a breach of the information protection principle in section 18 of the PPIP Act. The disclosure of the withheld information would also contravene section 26 of the LAC Act.

What is the correct and preferable decision?

217. For the reasons set out above, I find that the correct and preferable decision is to refuse the Applicant access to the withheld information that is the subject of this application.

218. Accordingly, the appropriate order is to affirm the Respondent’s decision.

Order

219. The decision under review is affirmed.

**********

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

20 December 2021 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 the decision is generally amended to give affect to the following Order:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis. That material is not to be published or released to the Applicant, without further order of the Tribunal.

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 the names of the Applicant, the Applicant’s children and the Independent Children's Lawyer are not to be disclosed.

Decision last updated: 20 December 2021