FKH v Murrumbidgee Local Health District - [2023] NSWCATAD 313

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FKH v Murrumbidgee Local Health District [2023] NSWCATAD 313
Hearing dates: 15 August 2022, 24 August 2022
Date of orders: 08 December 2023
Decision date: 08 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:
(1) The Respondent’s decision is set aside to the extent that:
(a) the documents identified in the Respondent’s schedules as documents 151A; 155A and 160A are to be released to the Applicant in full; and
(b) the documents identified in the Respondent’s schedules as documents 40, 377, 378 and 379 are to be released subject only to the removal of the mobile phone numbers of the Respondent’s staff.
(2) The Respondent’s decision is otherwise affirmed.
(3) Publication of the confidential evidence filed by the respondent in these proceedings is prohibited.
(4) Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited.
(5) Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.
(6) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

Catchwords:
ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Australian Human Rights Commission Act 1986 (Cth)
Children and Young Persons (Care and Protection) Act 1998 (NSW), Ch 16A, s 29
Children’s Guardian Act 2019 (NSW), Part 4, ss 245F, 254
Civil and Administrative Tribunal Act 2013 (NSW)
Evidence Act 1995 (NSW), ss 118, 119, 125
Family Law Act 1975 (Cth), s 121
Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 53, 55, 58, 80, 100, 105, 107, Sch 1, cll 5, 6, 10, Sch 2, cll 2, 4
Health Records and Information Privacy Act 2002 (NSW), s 72
NSW Health Services Act 1997 (NSW), ss 120A, 122, 123
Ombudsman Act 1974 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW), s 18
Public Interest Disclosures Act 1994 (NSW), Part 2, ss 20, 22
Crimes Act 1990 (NSW), s 91Q

Cases Cited:
Amcor Ltd v Barnes [2011] VSC 341
APD v Commissioner of Police [2012] NSWADT 42
AQJ v University of NSW [2013] NSWCATAD 306
AWB Ltd v Cole & Anor (No. 5) (2006) 155 FLR 30; [2006] FCA 1234
Battin v University of New England [2013] NSWADT 73
Betzis v Commissioner of Police [2020] NSWCATAD 71
Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Carrafa v Asfar (No 3) [2023] NSWSC 24
Clements, Dunne and Bell Pty Limited v Australian Federal Police [2001] FCA 1858
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48
Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Limited [1972] Ch 553
Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138
Director General, Department of Education and Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29
Director of Public Prosecutions (NSW) v Stanizzo (2019) 367 ALR 256; [2019] NSWCA 12
Esso v Commissioner of Taxation (1991) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270
Grant v Downs (1976) 135 CLR 674
Hodgson v Amcor No. 2 [2011] VSC 295
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8
Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222
Kang v Kwan [2001] NSWSC 698
Kaye v Woods (No 2) (2016) 309 FLR 200; [2016] ACTSC 87
Klaric v Commissioner of Police [2020] NSWCATAP 153
Kreutzer v University of Sydney [2015] NSWCATAD 270
Leech v Sydney Water Corporation [2010] NSWADT 198
Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121
Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43
McCrystal v Commissioner of Police (NSW) [2020] NSWCATAD 122
McDonald v Ku-ring-gai Council [2022] NSWCATAD 17
Murphy v Broken Hill City Council [2015] NSWCATAD 135
Neary v State Rail Authority [1999] NSWADT 107
R v Cox and Railton (1884) 14 QBD 153
Raven v The University of Sydney [2015] NSWCATAD 104
Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127
Robinson v Director General, Department of Health [2002] NSWADT 222
Saggers v Attorney General's Department [2005] NSWADT 193
Selby v Commissioner of Police (NSW) [2013] NSWADT 61
Smolenski v Commissioner of Police [2015] NSWCATAP 235
South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83
Talako v Talako [2014] VSC 328
Taylor v Destination NSW [2017] NSWCATAD 272
Transport for NSW v Robinson [2018] NSWCATAP 123
Transport for NSW v Searle [2018] NSWCATAP 93
Van Der Lee v New South Wales [2022] NSWCA 286
Watson v McLernon [2000] NSWSC 306
Watts v Department of Planning and Environment [2016] NSWCATAD 42
Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173
YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:
None cited

Category: Principal judgment
Parties: FKH (Applicant)
Murrumbidgee Local Health District (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s): 2022/00096051
Publication restriction: Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public

REASONS FOR DECISION

Introduction

The Applicant seeks access to the information contained in documents from the Respondent, the Murrumbidgee Local Health District (MLHD), pursuant to his request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
The information sought included communications about various matters concerning the Applicant and his children and was expressed to be sought by reference to various categories, which are set out in full below, for the period between 30 March 2021 and 24 December 2021.
There were nearly 394 itemised documents identified as coming within the scope of the Applicant’s request. In fact, when the numerous attachments are counted separately, there were more than 480 documents identified as being within scope of the Applicant’s request. These documents are summarised in two tables; a non-confidential bundle of documents (Bundle 1) and a confidential bundle of documents (Bundle 2). Of the documents contained in Bundle 1, the Applicant has received about 160 documents in complete, unredacted form, the rest were either released in part with redactions, or withheld from release.
The Respondent refused to release any of the documents described in Bundle 2 for various reasons. Those reasons included reliance on the so-called conclusive presumptions; specifically that client legal privilege attaches to the information recorded in those documents; or that the information consists of excluded information of another agency (here, the Office of the Children’s Guardian); or that and information contained in a report to which the Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29 applies. As a secondary ground, the Respondent contended that information recording in the documents in Bundle 2 should not be released by reference to several so-called non-conclusive provisions, and that on balance, it was not in the public interest for the information to be released.
At the hearing of the matter, the Applicant informed the Tribunal and the Respondent that he no longer presses his request with regard to the following material:

information or documents that are or record communications with the Office of the Children's Guardian, being an excluded agency for the purposes of the GIPA Act, Sch 1, cl 6. Accordingly, having regard to this concession, the Tribunal notes that concession and affirms the decision concerning documents identified as items 112, 113, 121 and its attachment 121A, 122 and its attachment 122A, 127, 181, 182, 208, 209, 224 and its attachment 224A and item 225 and its attachment 225A in Bundle 2; and

some information or documents provided by the NSW Police Force in the form of event reports. Shortly after the hearing, the Respondent provided the Applicant with four event numbers. Accordingly, notes that concession and affirms the decision concerning document 66A in Bundle 1.

In respect of all other information and documents identified as coming within the scope of his request, including some material recording ‘opinion and not facts’ from the NSW Police Force, the Applicant continues to press his application seeking access under the GIPA Act.
The Applicant also says that there has not been an adequate search for documents relevant to his request.

Issues to be determined

The main issues to be determined in these proceedings are whether, save for those he no longer presses, the Applicant may obtain access to all documents coming within the scope of his request; and whether the decision that no further information is held by the Respondent is the correct and preferable decision.
Subsidiary to the main issues are the following matters to be determined:

whether it is to be conclusively presumed that there is an overriding public interest against disclosure on the basis that the information is of the kind described in the GIPA Act, Sch 1 cl 10, cl 6, or cl 5 – noting that the cl 6 issue has been partly resolved by way of concession;

with regard to some of the documents about which it is asserted GIPA Act, Sch 1 applies on the basis that the material would be subject to legal professional privilege, whether such privilege ever applied or whether it has been waived; and

whether there are public interest considerations which, on balance, outweigh the public interest consideration in favour of disclosure with regard to the documents withheld to which a conclusive presumption does not arise, including those documents containing communications to which it had been determined client legal privilege does not attach.

For the reasons that follow, the Tribunal has:

determined that the decision that no further information is held by the Respondent is the correct and preferable decision;

affirmed the Respondent’s decision concerning that information over which a conclusive presumption against disclosure was said to arise;

determined that client legal privilege does arise in respect of the documents identified by the Respondent and that, in all but two instances where disclosure has been made of the document, privilege has not been waived; and

otherwise, has determined the Applicant’s access to each document, with the Tribunal’s consideration being recorded in the table at paragraph 165 below with the result that some documents previously withheld from the Applicant in full or in part are to be released in full.

Background

Factual Background

The Applicant is a former employee of the Respondent.
In January 2021, the Applicant was charged with criminal offences, including breach of an Apprehended Violence Order and the assault of one of his children, who is a child with complex needs.
The charges arose from an incident initially reported to police by the child’s maternal grandmother and later by the Applicant’s former spouse.
Ultimately, the police withdrew the charges for a range of reasons including that, on further consideration, the Police determined that the child was not assaulted but had instead been the subject of appropriate physical restraint, the paucity of the original investigation, and the possibility, given the high level of interpersonal conflict between the Applicant and his former spouse, that the complaint had been instigated or pursued to influence family law proceedings.
Shortly after the Applicant was charged, he notified the Respondent that he had been charged with criminal offences. He was required to do this because of the nature of the alleged conduct and the relevant policies of the Respondent.
On receiving the notification, the Respondent took various steps in accordance with internal policy directives entitled “Managing Child Related Allegations, Charges and Convictions Against NSW Health Staff” and “Managing Misconduct”. The latter of these policies, Managing Misconduct, concerned actual or alleged misconduct in and outside the workplace. I note in passing that the definition contained within the Managing Misconduct procedure, which is dated September 2018, refers to “Reportable conduct (i.e. child-related)”, including allegations relating to conduct outside the workplace and the provisions in the Ombudsman Act 1974 (NSW). Reportable conduct of this nature is now, and has been at all relevant times in these proceedings, defined in the Children’s Guardian Act 2019 (NSW), Part 4 and the correct applicable legislation was noted in the Respondent’s written submissions.
The Respondent, in attempting to follow the policy directives, took the following action:

co-ordinating the Applicant’s return from leave in mid-February 2021, including specifying that he was to report to a particular manager;

notifying the Office of the Children’s Guardian;

engaging in ongoing exchanges of information with the NSW Police Force and the Department of Communities and Justice;

preparing and then updating a risk assessment based on the template;

engaging, separately, with the Department of Communities and Justice (DCJ) in relation to a potential referral to the Child Protection Counselling Service run by the MHLD;

suspending the Applicant from work, with pay, from 12 July 2021 and later, offering him a voluntary redundancy, which he accepted.

Before his return from leave in mid-February 2021, the Respondent notified the Applicant that a further set of allegations had been made against him. These further allegations were dealt with under the Managing Misconduct policy directive.
On 3 May 2021, the Applicant advised the Respondent that the charges against him had been marked as “Dismissed – Withdrawn” by the Local Court on 29 April 2021. The Applicant forwarded to the Respondent in the same email a report from NSW Police concerning the withdrawal of the charges.
From the above, there are three matters relevant to the context of these proceedings:

the Applicant was required to notify the Respondent of the charges originally laid against him. The Tribunal is not concerned with the circumstances of the charges or their withdrawal, the truthfulness or intentions of any of the parties to the allegations, the conduct or decisions of police or whether any of the above steps were justified. Though not relevant, in his written submissions the Applicant informed the Tribunal that he has made a professional misconduct complaint concerning the investigating police;

the Respondent was required to act in respect of that notification in accordance with its policies and procedures; and

the Respondent, who also employed the Applicant’s former spouse, responded to the Applicant’s notification that charges had been laid against him in a manner that the Applicant considered to be unsatisfactory.

While contextually relevant, in that the documents touch on information obtained or created from these matters, little of what occurred between the Applicant and the Respondent relevantly informs the Tribunal in the task it must undertake to determine the correct and preferable decision in this case, in respect of which the Respondent bears the onus.

Procedural Background

The Applicant’s request under the GIPA Act was originally made to the Respondent on 25 December 2021 (noting that date to be a public holiday).
The request was made using an access application form, the parties later referring to the separate elements as categories, and was in the following terms (with the names of the Applicant and his children removed):

Information related to myself and my children [names of children]
I request the following documents held by the MLHD related to my family,
PDF Supplied to Murrumbidgee Local Health District by NSW police 24^th June 2021 [Category 1]
All emails and attachments between the MLHD and DCJ and NSW Police [Category 2]
All emails received from DCJ to the MLDB related to the children protection counselling service [Category 3]
Copies of all Emails and attachments sent and received (internal and external to LHD) by MLHD staff related to the Internal Privacy Review completed by Dhana Profilio [Category 4]
All Email correspondence and attachments sent or received by Jill Ludford, Helen Emmerson and Catherine McDonald, [Category 5]
All Legal correspondence from and to legal representative/s of MLHD in the Matter of [Applicant’s last name] where legal privilege has been waived by previous releases of privileged information. [Category 6]

By reference to his original application, the Applicant limited his request to the period 30 March 2021 to 24 December 2021 and further limited his request by type of document to all email correspondence and attachments. The Respondent’s employee, who was responsible for determining the Applicant’s GIPA Act request, states that several documents were provided to her as a result of her search requests that lay outside this period and were, therefore, excluded from her determination.
The Applicant indicated in his application that he consented to the removal of material that included mobile phone numbers and other personal information of staff of the Respondent. In reviewing many of the documents said to have been partially released, it is often only the mobile phone number of an employee of the Respondent, that has been redacted. With regard to this formal concession, the Tribunal will not consider those redactions as forming part of the Applicant’s request for review. Those documents that have redactions only to this extent are numerous and are indicated in the table in paragraph 165 below. I have determined that those documents have already been released to the Applicant in conformity with the terms of his request, and will not be the subject of further release.
The required application fee did not accompany the Applicant’s request. The fee was received on 12 January 2022 together with some clarification of some of the terms of the request. The Respondent acknowledged the Applicant’s request as valid on about 20 January 2022. The clarified request excluded material sent to the Applicant’s email addresses and all correspondence involving the Applicant in the day-to-day operation of MHLD or his employment but included the following additional items:

with regard to the fifth category (seeking for emails sent or received by named staff):

a log of all emails or attachments received by those staff providing details of whether email and/or attachment has been saved to electronic storage or printed;

for each document electronically saved or where a physical copy has been made, details about the records' distribution, storage, access or destruction;

For each document electronically saved or where a physical copy had been made, details about the distribution, storage, access and destruction of the records; and

with regard to the sixth category, the Applicant clarified that he was referring to a complaint made by him under the Privacy Information Protection Act 1998 (NSW), that complaint being the subject of an internal review and the report for which was dated 22 December 2021.

The Respondent advised the Applicant in the letter of acknowledgement dated 21 January 2022 that:

including an extension for third-party consultation, his application was to be finalised by 10 March 2022;

if his application was not processed by that time, or any period as prescribed under GIPA Act, s 57, it would be deemed to have been refused under the GIPA Act, s 63; and

he was thereafter entitled to seek an internal review or external review.

The application was not determined by 10 March 2022 and the Respondent did not seek a further extension of time to determine the application. Consequently, on 1 April 2022, the Applicant was entitled to, and did, apply to the Tribunal seeking administrative review of the deemed refusal of his GIPA Act request.
The Respondent nonetheless determined the Applicant’s request on 5 May 2022 (May Determination). In that determination, the Respondent identified about 390 documents as being responsive to the request; which, if the attachments are counted separately, there were, in fact, nearly 500 documents. The Respondent released about 160 documents in full and the remainder were either released in part subject to the Applicant’s concession concerning the personal information of staff. The core, though not entire, dispute arises with respect to those documents (and, in a small number of cases, parts of documents) over which the Respondent claims a conclusive presumption that there was an overriding public interest against disclosure. The majority of the documents over which there is a claim regarding the conclusive presumption are contained in Bundle 2.
On 9 May 2022, the Tribunal made orders in the management of the proceedings, including that the Applicant give to the Respondent and the Tribunal a list of the information he considered to be missing in each category of the information he sought to access and withheld information for which he no longer pressed access.
On 12 May 2022, the Applicant, in apparent compliance with the 9 May 2022 order, provided an email in which he sought to extend the terms of his request and advised that, contrary to whatever had been intended by order 2(b) of the 9 May 2022, he would be:

pressing access for all documents, primarily on the basis of s12(2)(e) where the conduct of the three NSW government agencies involved includes abuses of power and process, unlawful and potential corrupt conduct, maladministration and criminal conduct by the agencies and their officers, which is being concealed by withholding and partial release of material in response to the GIPA application.

On about 26 May 2022, the Respondent filed a response to the matters raised by the Applicant in his email of 12 May 2022. The Tribunal did not accept the Applicant’s request to broaden the scope of documents sought; I respectfully agree that there was no basis for the request to be broadened in this manner.
In the course of the proceedings before the Tribunal, the Applicant asserted that the Respondent had not conducted a sufficient search for documents coming within the scope of his request. The Respondent is obliged to undertake reasonable searches for material the subject of a request: GIPA Act, s 53. The Respondent provided a response addressing that issue and later, in July 2022, it identified about 33 further documents (in fact, 41 documents if the attachments are counted separately) within the scope of the request (July Determination).
Under the July Determination, the Respondent released some documents in full, it released other documents in part and it withheld or refused to release other documents. Some documents the Respondent refused to release were subject to third-party consultation. That consultation had concluded by the date of hearing. In its evidence at the hearing, the Respondent demonstrated that the Office of the Children's Guardian had been consulted and did not consent to disclosing those documents about which it had been consulted.

Facts and Evidence

The Applicant tendered an affidavit and written submissions. The Applicant’s affidavit contained over 25 annexures. Most of that material was directed towards demonstrating to the Tribunal the perceived ill-treatment the Applicant had suffered from the Respondent; particularly in its role as his former employer. To some limited extent, that material is relevant to the public interest factors favouring disclosure, and other material is relevant to the Applicant’s submissions regarding waiver of legal professional privilege. To the extent it is relevant, it has been considered below.

The Internal Privacy Review

Among the Applicant’s annexures is a report of an internal privacy review conducted by the Ministry of Health and dated 22 December 2021. The Applicant relied extensively upon the findings of that review in his oral submissions.
The internal review had been conducted at the request of the Applicant one month after his employment with the Respondent ended.
The internal privacy review report is detailed, comprehensive and often critical of how the staff of the Respondent dealt with and handled information concerning the Applicant and his children. In particular, the report noted that between July and September 2021, the Applicant had expressed his concerns directly to the Respondent over breaches of privacy concerning information about him and his children and, in September 2021, had expressly asked that it conduct an internal review. However, while his concerns were acknowledged and further information sought, the report concludes that a privacy review was inconsistent with the requirements of the Privacy and Personal Information Protection Act and the NSW Health Privacy Internal Review Guidelines.
One conclusion of the internal privacy review that the Applicant repeatedly referred to was that, as soon as the Respondent became aware that the Police had dropped the criminal charges against the Applicant, there should have been an end to any exchange of information. The internal reviewer based this conclusion on the understanding that the Applicant was ‘not employed in a child-related position and he did not present a risk to individual children or a class of children, in his substantive provision’. Inherently, the review proceeded on the basis that the safety, welfare or well-being of the Applicant’s children were the only relevant considerations having regard to the fact that the Applicant was not employed in a role that had any contact with children. Accordingly, the reviewer proceeded on the following basis:

NSW Police advised MLHD in an email dated 21 April 2021, that the child-related charges against the applicant had been dropped. It is this reviewer’s view that this was a fact that was clear and at this time the pursuit of information from NSW Police by MLHD should have ceased.

Accordingly, the internal privacy review found that:

the Respondent should not have exchanged information with the NSW Police on 3-4 May 2021 and 22-24 June 2021;

the requests made by the Respondent under Chapter 16A of the Children and Young (Persons Care and Protection) Act were not ‘in the spirit of that legislation; and

the use of that information, in using it to inform its risk assessment, was inconsistent with the restrictions provided under the Children and Young (Persons Care and Protection) Act, s 245F.

The Applicant relied on, and to some extent reflected, these conclusions in his evidence. The Tribunal is not required to adopt the conclusions of the internal privacy review, nor does it agree with them. The fact that the Applicant was not in a child-related position does not mean that the safety and welfare of the Applicant’s children were the only relevant consideration for the Respondent. Allegations of criminal conduct toward a child, and in particular, a child with complex needs, are serious matters that are often factually complex. The fact that the NSW Police “dropped charges” was not necessarily the end of the investigation, nor was it the end of the investigation by the Respondent as an employer. The Respondent provides public health care in several settings in the community. Consequently, if the Respondent had failed to investigate allegations fully and otherwise continued to employ persons in any role who had acted in a manner detrimental to the safety and well-being of vulnerable persons such as children, it is conceivable that that failure would have a detrimental impact on children and their families accessing the services it provided by it. Though elliptically expressed, this may have been the concern of reputation expressed in the Chief Executive’s letter to the Applicant of 23 August 2021, in which she notes that each of the allegations against the Applicant ‘risks bringing MLHD and NSW Health into disrepute.’ As noted below, one of the Respondent’s witnesses gave evidence under cross-examination (which was not then challenged by the Applicant) that the Applicant’s role involved him travelling between facilities and that he may, in the course of his duties, have come into contact with children attending the Respondent’s premises.

The Respondent’s Evidence

The Respondent tendered the witness statements from;

Jennifer Spain, the Director, Governance, Risk and Audit (DGRA) of the Respondent.

Catherine McDonald, the Professional Practice Manager (PPM) of the Respondent,

Helen Emmerson the Director, People and Culture (DPC) of the Respondent, and

The email communications of Jill Ludford, the Respondent’s Chief Executive and the PPM were part of the subject matter of Category 5 of the Applicant’s request.
The Applicant cross-examined each of these witnesses. He had previously applied to the Tribunal for a summons requiring the Chief Executive to attend and give evidence. That application and it was rejected by the Registrar of the Tribunal before the first hearing date.
The cross-examination did not impugn the credibility of any of the Respondent’s witnesses; to the contrary, the overall impression gained from the witnesses who were cross-examined was that they were professional and honest: each gave responded to questions under cross-examination in a manner that was direct and considered; each took appropriate concessions, at times against their own interest.

Evidence from the Director, Governance, Risk and Audit

In her statement the DGRA informed the Tribunal that one of her several roles was, to act as the Public Interest Disclosures Coordinator and the GIPA Reviewer on an as-required basis. It was in that role, that the DGRA conducted and determined both the May and the July Determinations.
The DGRA gave evidence of that she requested 12 employees of the Respondent to they search of information and documents coming within the scope of the Applicant’s request.
The DGRA says she provided access the Applicant to 783 pages of documents containing information which she considered came within the scope of his request. Those pages were provided either in full or subject to partial redactions and does not include those documents which were withheld or for which access was refused entirely.
The DGRA also explained that the documents identified in the July Determination came from the PPM and that all but five of those documents were likely to have been supplied by the PPM but had not been received by the DGRA because the secure MS Teams link she had set up had been interrupted during the download by the PPM of those documents.
The DGRA also stated that, ‘as a general rule’ she had redacted the mobile phone numbers from the documents as this was personal information of the individuals – this is consistent with the concession of the Applicant noted on his original application form. The DGRA also redacted the names and dates of birth of the Applicant’s children as a matter of course.
The DGRA also stated that access to document 21 and its attachments was refused entirely on the basis that the email and its attachments were sent in response to a request from the DCJ pursuant to the Children and Young Persons (Care and Protection) Act, Ch 16A. According to the table of itemised documents, document 21 was partly released to the Applicant but the attachments, comprising pages 106 – 114 of Bundle 1 was refused. In refusing access to that information, the DGRA said she considered the fact that the records contained sensitive medical information of a minor and that release under the GIPA Act was not subject to any restriction. The DGRA also suggested that the existence of family law proceedings, the fact that subpoenas had been issued under those proceedings and the ability to access the material under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) were also matters she considered in refusing access.

Evidence of the Director, People and Culture (DPC)

The DPC had sent an email to her colleagues within the Respondent dated 18 May 2021 that stated in part:

Again am concerned about the level of clinical information in this risk assessment that seems to blur boundaries (I think this requires a sit-down conversation at some time).

Under cross-examination the DPC gave evidence, consistent with that email that she considered some material contained in the risk assessment was not necessary to be included or disclosed in that document as it was not relevant to the task at hand. Her evidence was that no sit-down conversation occurred as she had proposed in her email.
The Applicant submitted that this was evidence of known wrongdoing on the part of the Respondent. To characterise a mistake or error as known wrongdoing in the context of a complex risk assessment process where serious allegations have been made, and child protection is at issue puts the matter too high. While the DPC stated her concerns about the extent to which information was being conveyed in the risk assessment tool, those concerns do not amount to an admission of wrongdoing by Respondent's employees. The Tribunal accepts the DPC’s evidence that she was concerned about the extent of information being disclosed in the risk assessment, that concern is not relevant to the determination of the GIPA Act because it does not establish bad-faith or a misconduct.
The DPC was cross-examined about an email she sent dated 27 June 2021 to another of the Respondent’s employees, which had been copied to the Chief Executive. The substance of the email is extracted here:

We have had numerous conversations – so I can stitch things up I would appreciate a copy of the current risk assessment to ensure sound process is followed on other matters
VR
Investigation on privacy
Hope to get this risk assessment end of this week.

In her cross-examination, the DPC explained that she intended, by the use of that phrase ‘stitch things up’ in her email, to mean that she wanted to co-ordinate, join together or ‘sew together’ the disparate aspects of the issues arising from the Applicant’s employment. The DPC explained that the meaning she intended to convey by using that phrase was to ensure the range of conversations on a range of matters (as she had listed) were connected – and she pictured this, figuratively, as stitching the pieces of the problem together. The DPC also explained under cross-examination, that the 27 June 2021 email was written in an informal style and that terms such as ‘stitch’ or ‘weave’ were terms based on both her cultural background and her understanding of the multiple issues arising in the management of the Applicant’s employment. The DPC further stated that she used such terms on a regular basis.
The Applicant submitted that the use of the phrase ‘stitch things up’ meant that the DPC was dishonestly attempting to hide or concoct a story concerning the compilation and updating of the risk assessment. Having regard to the whole body of the email (as extracted above), however, I consider the DPC’s explanation provided in the course of her cross-examination to be consistent with the use of the phrase in the manner she explained under cross-examination and inconsistent with the Applicant’s submission that the DPC was acting dishonestly. In particular, I consider the fact that, in her email, the DPC sought a copy of the risk assessment to ensure that a “sound process” was followed in future or other matters and that that phrase arose in the same sentence as the phrase ‘stitch things up’ makes the DPC’s explanation more consistent with the documentary evidence.
Accordingly, I reject the Applicant’s submission in relation to that email. This was an example of a difficulty in the Applicant’s submissions in which he sought to infer criminal or dishonest conduct without any real basis and focused on particular words and phrases without regard to the context, setting or purpose of those communications which necessarily informs the interpretation of email communications.

Evidence of the Professional Practice Manager (PPM)

In her witness statement, the PPM outlined the risk assessment process undertaken after the Applicant’s notification of the charges laid against him. It was not in dispute that there were disclosures and exchanges of information between the Respondent and other agencies.
The PMM created and updated the risk assessment document until the middle of 2021. The PPM also made observations concerning some of the documents contained in the table including those documents which are now conceded by the Applicant to have a conclusive presumption that there is an overriding public interest in not being released.
The PPM is a nurse by training and qualification. In cross-examination the Applicant put several questions to the PPM concerning her knowledge of, compliance with, the nursing code of conduct. The Applicant attempted to imply that the PPM had engaged in unlawful behaviour of a kind that would breach that code. This attempt was, in my view, unsuccessful. The PPM was not carrying out nursing or clinical functions in her role as PPM. Though the PPM conceded that lawful behaviour applied in all contexts, there was no evidence that she had transgressed that requirement of the code. In any event, I consider the PPM’s adherence or otherwise to the nursing code of conduct as being relevant only in so far as it may be a factor weighing in favour of release of documents where the conclusive provisions to not apply. To the extent that her conduct was relevant, I do not find, on the evidence available to the Tribunal, that the PPM’s conduct breached that code in any event.
Of greater relevance to the issues raised by the Applicant in these proceedings was the PPM’s evidence, also given under cross-examination, that she considered the fact that the Applicant was not in a role where he might have contact with children directly, he nonetheless travelled between facilities and may have had access to children in the course of those attendances. This was a logical and significant factor in why the Respondent had continued to correspond with police in updating the risk assessment document.
Contrary to the Applicant’s submissions on her conduct, the PPM’s evidence showed her efforts in trying to ensure that the Respondent and in particular, its clients, were protected from any harm and that the risk of harm was properly assessed and managed. When the Applicant asked the PPM about the investigation that was being conducted about his conduct, she replied that there was no investigation but rather a risk assessment was being conducted: an important difference and one which cannot be readily overlooked in meeting the submissions of the Applicant that the documents should be released to him because of misconduct on the part of the employees of the Respondent.

The PPM made concessions regarding the limitations on her knowledge and application of the relevant provisions of the Children and Young Persons (Care and Protection) Act.
The PPM was clear that her communications with Mr Hassal of Sparke Helmore were for the purpose of obtaining legal advice and for no other purpose.
In the course of the Applicant’s cross-examination of the PPM, the PPM offered an unpromoted apology to the Applicant for disclosing material concerning his childhood to the Police and other managers and specifically acknowledged that three pages containing that material should have been removed. That apology was appropriate given the nature of the material released and the possible harm caused to the Applicant by the release of that information.
The PPM gave confidential evidence concerning her review of documents numbered 258 and 337. It was the PPM’s evidence that:

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

Applicable Law

Jurisdiction and Onus

The Respondent’s decision to refuse access because of an overriding interest against disclosure is made under the GIPA Act, s 58(1)(d). Where there has been deemed refusal, that decision is a reviewable decision under the GIPA Act, s 80(1)(c); where a decision has, in fact, been made, it is reviewable under the GIPA Act, s 80(1)(d).
The Respondent also determined that some information was not held by it, that is a decision made pursuant to the GIPA Act, s 58(1)(b). That decision is a reviewable decision under the GIPA Act, s 80(1)(e).
The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act 1997 (NSW), s 63(1). The Tribunal’s task is to re-make the decision as if it were the administrator; McDonald v Ku-ring-gai Council [2022] NSWCATAD 17. The Respondent refers in written submissions to the NSW Court of Appeal’s observations in YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], where the NSW Court of Appeal observed that a Tribunal conducting a merits review should determine what ‘is’ the correct and preferable decision, not what ‘was’ correct and preferable at the time when the decision subject to review was made.
There was no dispute that the Applicant as the access applicant was a ‘person aggrieved’ by the decisions and consequently had standing to seek administrative review; GIPA Act, s 100(1).
In this case, the Respondent bears the onus of establishing that its decision is justified; GIPA Act, s 105(1).

Public and private sessions of hearing, confidentiality of some aspects of these reasons

The hearing of this matter took place over 2 days. In the course of the hearing, the Tribunal received evidence in open session where all parties attended and in confidential session pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 49 at which the Respondent appeared in the absence of the Applicant and the public to tender confidential evidence and make submissions.
The Tribunal is required to ensure that it does not, within its reasons for decision or otherwise, disclose any information in respect of which there is an overriding public interest against disclosure; GIPA Act, s 107. The confidential session of the hearing was necessary in furtherance of this requirement. Additionally:

the non-confidential parts of these reasons will not refer in any detail to the subject matter of the documents tendered in the confidential session; Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 at [28]; and

In accordance with its obligations under the GIPA Act, s 107(1), the Tribunal has made orders in accordance with the Civil and Administrative Tribunal Act, s 64 restricting access to the transcript of the confidential parts of the hearing to ensure that any information in respect of which there is an overriding public interest against disclosure is not disclosed.

The Presumptions in Favour and Against Disclosure

There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure: GIPA Act, s 5.
A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure: GIPA Act, s 9(1).
The presumption in GIPA Act, s 5 and the right created in s 9 give effect to the object stated in GIPA Act, s 3(1)(c) which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.
GIPA Act, s 14 sets out the considerations against disclosure, it provides for two classes of public interest considerations against disclosure:

a conclusive presumption, in accordance with GIPA Act, s 14(1) and described in GIPA Act, Sch 1. Relevant to these proceedings, matters attracting the conclusive presumption include;

information that would be subject to legal professional privilege, GIPA Act, Sch 1, cl 5, a government agency can elect to waive privilege in respect of the documents in which case the conclusive presumption does not apply;

information that is excluded information of an agency GIPA Act, Sch 1, cl 6; and

information in a report to which the Children and Young Persons (Care and Protection) Act, s 29 applies, GIPA Act, Sch 1, cl 10;

and

considerations giving rise to a non-conclusive presumption described in the clauses contained in the table to the GIPA Act, s 14(2) (Table) and which are the only other considerations that may be taken into account when determining whether there exists an overriding public interest against disclosure. Relevantly, the non-conclusive presumptions against disclosure arise where information could reasonably be expected to;

prejudice the supply to an agency of confidential information that facilitates the effective exercise of its functions, Table, cl 1(d);

reveal a deliberation or consultation conducted, or opinion, advice or recommendation given, in such a way as to prejudice a deliberative process, Table, cl 1(e);

prejudice the effective exercise by an agency of its functions, Table, cl 1(f);

found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to it in confidence, Table, cl 1(g);

reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, Table, cl 2(a);

reveal the personal information of an individual, Table, cl 3(a);

contravene an information protection principle or a Health Privacy Principle under the Privacy and Personal Information Protection Act or the HRIP Act respectively, Table cl 3(b);

prejudice any court proceedings by revealing a matter prepared for the purposes of, or in relation to, current or future proceedings, Table cl 3(c) (noting however that the documents on which this consideration was said to arise have been subsequently conceded); and

where the information relates to a child, the disclosure would not be in that child’s best interests, Table cl 3(g).

Further, with respect to considerations under Table cl 3, the personal factors of the applicant, including their motive, their relationship with any other person and other personal factors, may be relevant in consideration of the public interest considerations against disclosure. The considerations in GIPA Act, s 55 can apply in favour of, or against, disclosure: Smolenski v Commissioner of Police [2015] NSWCATAP 235 at [54] - [55]. I note in this case that the May Determination concluded the personal factors of the Applicant and the fact that the information he sought concerned himself and his family favoured disclosure of the material. I agree to a limited extent with this conclusion.
With regard to the second category only, the finding of an “overriding public interest against disclosure” requires a balancing between considerations in favour and against disclosure: GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Such a balancing process does not arise with respect to documents over which the conclusive presumption provided under GIPA Act, s 14(1) has been found to apply.
The operation of the GIPA Act, s 5 and s 12 recognises the significance of the presumption in favour of disclosure which applies without limitation. Such consideration should be accorded, therefore, “significant weight” when determining whether access to information should be granted: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].
The balancing of those considerations should favour disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. Yet the process is not a matter of mere mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
The determination of whether there exists an overriding public interest against disclosure also requires consideration of the matters set out in GIPA Act, s 15. Those principles are clear and do not require further elucidation.
That a matter arises which meets a clause contained in the Table does not invariably lead conclusively to a determination of an overriding public disclosure. The chapeau to clause 1 of the Table contained within the GIPA Act, s 14 is illustrative:

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)…

Rather, the Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure “could reasonably be expected” to have the specified effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker determine as to whether it is reasonable to expect that disclosure would have the relevant effect. The word reasonable, in that context, means something that is not irrational, absurd or ridiculous: Transport for NSW v Searle [2018] NSWCATAP 93 at [68].
Something more than a mere risk or chance is required; there must be real or substantial grounds which are more probable than not: Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]; Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited.

The balancing of matters required under the GIPA Act

The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters:

the objects of the legislation contained in GIPA Act, s 3;

the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12 – those considerations to be given significant weight;

the considerations in s 14; and

to the principles set out in section 15 of the GIPA Act,

to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails.

I have adopted the approach outlined in Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104] in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and determining the balance in the light of such weighting.

The conclusive presumptions against disclosure

GIPA Act, Sch 1 sets out the types of information in respect of which there is a conclusive presumption of an overriding public interest against disclosure. The Tribunal’s approach to such material differs from the balancing process described above. As the Tribunal in Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 at [11]

Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point.

Schedule 1, Clause 5, Client Legal Privilege

GIPA Act, Sch 1, cl 5 provides for a conclusive overriding interest against disclosure where the document contains material that is subject to legal professional privilege. Client legal privilege has been regarded, in itself, as a privilege that is directed to the protection of the public interest: Grant v Downs (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ The effect of material coming within the GIPA Act, Sch 1 is that an agency is not required to balance the public interest in favour of or against disclosure before refusing access to it, and the Tribunal is precluded from considering the public interest test in relation to that information: Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31].
While not a reviewable decision, GIPA Act, Sch 1, cl 5(2) requires an agency to consider whether it would be appropriate to waive legal professional privilege in any event. Aside from its submissions asserting its claim to legal professional privilege, there is nothing before the Tribunal to suggest the Respondent has in fact given the relevant consideration under this provision.
The GIPA Act does not contain a definition of client legal privilege. Client legal privilege, also commonly referred to as legal professional privilege, has both statutory and long-standing common-law definitions: Transport for NSW v Robinson [2018] NSWCATAP 123.
While the common law definition is not precluded, the definition of client legal privilege in the Evidence Act 1995 (NSW), ss 118 and 119 provide a helpful definition that may inform whether a document could come within the exclusion provided under the GIPA Act, Sch 1, cl 5. In summary, those elements are:

the information is a confidential communication (whether between lawyer and client, or between 2 or more lawyers acting for a client, or between the client and another person, or a lawyer acting for a client and another person) that was made for the dominant purpose of the client being provided with professional legal services. This is because the privilege acts to protect a confidential communication: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303;

such communication having been created or prepared for the dominant purpose of providing legal advice to the client or the client obtaining legal services relating to a proceeding, see also Esso v Commissioner of Taxation (1991) 201 CLR 49; and

the client objects to the release of that material;

the dominant purpose of a confidential communication to which client legal privilege is said to attach is that purpose which is prevailing or paramount: AWB Ltd v Cole & Anor (No. 5) (2006) 155 FLR 30; [2006] FCA 1234 at [44]; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.

The purpose by which a document came into existence is a fact to be determined objectively, not by reference to the subjective intention of the author or seeker of the document: AWB (No. 5) at [44] (2).
In this case, arising from the May Determination, the Respondent released a copy of an email from the Industrial Relations Specialist to the Chief Executive and the Applicant’s Manager which said, in part:

I have reviewed the letter and included some info about the investigation to provide some clarify around next steps for [the Applicant]
I need to declare a conflict of interest as I have had access to the AVO details [redacted text] so I would not be able to investigate.
To ensure we have legal privilege for you and [Applicant’s Manager] I recommend that the investigation is carried out by ‘legal’. I have a meeting with Roland [Hassal, the external solicitor] tomorrow, so happy to discuss if you would like to proceed with this recommendation.

From this email, extracted above in redacted form, the Applicant has asserted that the Respondent, by its officers, only sought legal advice or assistance with the investigation “to conceal the investigation behind a client legal privilege shield”. There is no substance to that assertion. Having viewed the materials and the Applicant’s account of what had occurred, I consider that it would be extraordinary for an agency in the Respondent’s position not to seek legal advice and assistance with regard to the investigation being carried out given the nature and complexity of the matters facing it.
The fact that the Industrial Relations Specialist refers to obtaining legal assistance ‘to ensure legal privilege for you and [Applicant’s Manager]’ does not, as the Applicant also contends, automatically lead to a conclusion that the purpose of the engagement (at that time, the proposed engagement) was simply a shield for some other purpose rather than for the dominant or prevailing purpose of the provision of legal advice or obtaining legal services in respect of anticipated legal proceedings. Though the phrasing of the message is inelegant, having regard to the context of the issues involved as between the Applicant and the Respondent, it is probable that the Respondent considered it likely, by June 2021, that the Applicant might commence legal proceedings against it (whether arising from his employment or his dissatisfaction with the Respondent’s actions in investigating various matters). Accordingly, the Industrial Relations Specialist’s email is evidence of that consideration and the need for the Respondent to obtain advice and assistance in contemplation of proceedings from a lawyer in a confidential setting.
The Applicant submits that legal privilege does not apply to those documents so identified because any privilege that may have attached or was intended to attach to the information was waived by the Respondent on the basis of an exception to client legal privilege is commonly called the crime or fraud exception.
The statutory scheme for provides that client legal privilege is lost: Evidence Act 1995 (Cth), s 125. Though it is perhaps more correct to say that client legal privilege can never attach to illegal activity, as explained in R v Cox and Railton (1884) 14 QBD 153 at 165 where Stephen J stated that:

if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument no such privilege existed.

As such, it may be observed that the “crime or fraud exception” is not really an exception or a waiver to client legal privilege but rather a principle that declares client legal privilege never attaches to communications of this ilk; likewise, Young J in AWB (No. 5) at [215] said:

The privilege takes flight if the relationship between lawyer and client is abused.

Privilege will be denied in broad circumstances: Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Limited [1972] Ch 553 at 565, including where the illegal purpose was that of a third party, see for example the tax schemes decision; Clements, Dunne and Bell Pty Limited v Australian Federal Police [2001] FCA 1858. So much is reflected in the Evidence Act, s 125(1) in which both paragraphs (a) and (b) refer to ‘a client’, ‘a lawyer’ and ‘a party’ as separate entities. A lawyer may be unaware of the likely outcome or intention of the client in seeking or obtaining the advice; that is an irrelevant matter to the question of whether privilege in fact attaches to the communication: R v Cox and Railton.
However, a mere allegation made by the applicant as part of a GIPA Act review is not enough. As Tribunal observed in Saggers v Attorney General's Department [2005] NSWADT 193 at [36]:

The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake … The case law does not stand for the proposition … that a failure to remain within the boundaries of statutory power … is enough to give rise to the loss of legal professional privilege. Much more is required.

In Kreutzer v University of Sydney [2015] NSWCATAD 270 at [95]–[99], referring to the decision in Kang v Kwan [2001] NSWSC 698, the tribunal noted that a high level of intentional wrongdoing is required before client privilege will be found to have been defeated, with something approaching an actual criminal conspiracy appearing to be necessary.
Examples of the kind of activity that may result in a failure of, or exception to, client legal privilege was set out by Vickery J in Hodgson v Amcor No. 2 [2011] VSC 295, including: steps taken to conceal profits, delay or defeat recovery by victims of an initial fraud or conceal abuse of delegated powers to enact legislation. However, with regard to abuses of power, those abuses must be “deliberate” in the sense that person carrying out the acts in question must be aware that they are abusing powering, not merely that acts are deliberately done which are in fact an abuse of power: Van Der Lee v New South Wales [2022] NSWCA 286 at [61] per Hodgson JA (Santow JA agreeing); and dishonest; Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222 at [64] per Hodgson CJ in Eq.
Much of the Applicant’s evidence and submissions attempt to identify criminal activity of the Respondent, its officers or the NSW Police as a means of demonstrating that client legal privilege, to the extent it existed at all, was lost because of various crimes or offences had been committed. The Applicant, in submissions refers to the Tribunal the decisions of Amcor Ltd v Barnes [2011] VSC 341 and Talako v Talako [2014] VSC 328 as authorities for the propositions that a court need only be satisfied on the balance of probabilities that there are reasonable grounds for making a finding that a fraud, offence or act rendering a person liable to civil penalty has been committed, this is consistent with the NSW Court of Appeal in Director of Public Prosecutions (NSW) v Stanizzo (2019) 367 ALR 256; [2019] NSWCA 12 at [30].
However, as Slattery J in Carrafa v Asfar (No 3) [2023] NSWSC 24 at [13] noted, referring to Propend, something more than a mere assertion is required to make out the elements of s 125 and indeed, there must be some prima facie evidence that the allegation has some foundation in fact: Director of Public Prosecutions (NSW) v Stanizzo (2019) 367 ALR 256; [2019] NSWCA 12 at [33].
Likewise, in Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127, the Tribunal rejected the argument of the applicant who asserted that privilege had been lost since, he believed, a prosecution against him was instituted and maintained in circumstances indicating it was attenuated by malice. Consistent with AWB (No 5) and the other authorities cited above, there must be some form of dishonesty, intention or deliberate conduct involved to give rise to the loss of privilege – a matter which falls to be determined by the Tribunal on the evidence before it.
The Applicant, in his evidence on affidavit which also comprised, in part, his submissions, accused the Respondent and its officers of a number of offences and breaches of legislation. These included:

in respect of the DGRA:

unlawful dissemination of child protection information to the Chief Executive and being ‘involved in’ in the distribution of identifying details of a child protections counselling service referral for a child between August and September 2021. On the evidence before it, the Tribunal could not be satisfied that the dissemination of this information was, in fact, unlawful;

contraventions of the NSW Health Services Act 1997 (NSW), s 120A, by approving of the risk assessment to have the Applicant stood down without ensuring ‘all other options to manage the suggested risk were not appropriate’. Even on the Applicant’s construction of the conduct, nothing gives rise to unlawfulness. The allegation seems to be that the Director of Clinical Governance’s response to managing a perceived risk was less than perfect. The NSW Health Services Act, s 120A(1)(e) provides that the Health Secretary may suspend a member of staff charged with a serious criminal offence (being an offence punishable by more than five years’ imprisonment) until criminal charges are dealt with. That provision does not concern itself with granular managerial decisions that are relevant to the current matter;

non-compliance ‘with the relevant policy directives, and legislation, including the protections’ provided under the Australian Human Rights Commission Act 1986 (Cth) and that the Applicant should not be discriminated against based on a criminal record (which he did not have) where it was no inherent requirement in his job relevant to the allegations against him. I note that the provisions of the Australian Human Rights Commission Act do not support the Applicant’s submission in this regard;

by failing to inform or update the investigators, she subjected the Applicant to ‘repeated threats and allegations.’ On the evidence before it, the Tribunal could not be satisfied that such a finding could be made even on a provisional basis. To the extent the Director of Clinical Governance failed to communicate to ‘individuals investigating’, in respect of the further allegations made against the Applicant, that the Applicant’s manager that those allegations were false and misleading. Details of those allegations were not before the Tribunal; however, there was material before the Tribunal that showed the Applicant’s manager stating that he did not see photos on the Applicant’s phone. Whether the Director of Clinical Governance was required to report this is a different question; it would be passing strange that the workplace investigators would not have interviewed the Applicant’s manager directly and received this information from him.

With regard to the Chief Executive, it was submitted by the Applicant that she:

had acted in reprisal against the Applicant who had made a public interest disclosure and that conduct was ‘considered “detrimental action” under s 20 of the public interest disclosure act and constitutes a criminal offence’. Firstly, the Tribunal could not be satisfied that the Applicant had made a disclosure that came within the definitional requirements of the Public Interest Disclosures Act 1994 (NSW), Part 2. Secondly, there was no evidence before the Tribunal that any conduct of the Chief Executive met the definition required in the Public Interest Disclosures Act, s 20 which requires the impugned conduct to be substantially in reprisal for a public interest disclosure; and

engaged in persistent and multiple abuses of power by using information contained in the risk assessment for reasons of employee management – by which the Applicant means that because the Chief Executive relied on the risk assessment to stand down and then make redundant the Applicant, the material had been misused. There was little evidence to ground this and the Tribunal considers this submission to be an overly narrow interpretation of the Chief Executive’s actions formulated artificially to meet the Applicant's argument on waiver. As the Decision Memorandum annexed to the Applicant’s affidavit explains, the Applicant had been employed the manager of a transformation team that ‘had been established to guide the strategic reform processes’ for the Respondent; and that work had moved to an implementation phase that was being managed by a different team, causing the Applicant’s position to become surplus to the requirements of the Respondent.

In respect of two other staff members of the Respondent:

disclosures were made in breach of the Family Law Act 1975 (Cth), s 121. On the evidence before it, the Tribunal could not be satisfied that this provision was in fact breached, however, I note that the provision only applies to the publication or dissemination to the public of information and would not apply to employees of a health service making a confidential disclosure to a clinical service; and

the Children and Young Persons (Care and Protection) Act, s 254. On the evidence before it, the Tribunal could not be satisfied that these employees breached this provision, in particular it was not clear – and not a matter to be determined in these proceedings – whether the any of the exceptions in that provision applied; and

the HRIP Act, the Tribunal was not able to determine whether there had been a breach of the provisions of this legislation or whether the employees were entitled to rely on the HRIP Act, s 72; and

that in responding to an internal privacy review, these employees ‘had colluded to concoct an excuse as to the dissemination of identifying details’ related to the Chief Executive’s distribution of identifying information of a child referred to a specific counselling service. Again, on the evidence before it, the Tribunal could not be satisfied that this submission was reasonably based on established facts, nor that there were reasonable grounds to make a finding, on the balance of probabilities, that the conduct alleged had occurred.

With regard to the Industrial Relations Specialist, that:

at times in May, June and July 2021, she accessed, transmitted or used information in the risk assessment for the purposes of reputational risk assessment, human resources or employment-related matters. The Applicant submits that this was done to conceal unlawful conduct of the Respondent by attempting to have its conduct cloaked by client legal privilege and was, in one instance at least a breach of the Children and Young Persons (Care and Protection) Act, s 245F and s 254. There is no evidence of unlawful conduct seeking to be concealed in this way. As to s 245F, I am not satisfied, on the evidence before the Tribunal, that the Industrial Relations Specialist contravened that provision; though I note that the Applicant relies on the findings of the internal privacy review (summarised at paragraph 34 above). As to s 254, I am not, on the evidence before the Tribunal, that this provision was contravened, or the excused circumstances provided in that provision were not met;

in June and July 2021, she engaged in multiple abuses of power by providing input into a risk assessment after declaring a conflict of interest, by sending to the Chief Executive a service check register form which she had also signed and by being involved in communications between the Applicant’s Manager and the Chief Executive concerning advice provided to the Respondent by Mr Hassal. The characterization of these actions as abuses of power is incorrect. The Industrial Relations Specialist was involved in only peripheral matters and had declared her conflict of interest to the relevant persons within the Respondent. Her continued involvement was in that context and while it was not ideal that she have any involvement, it is unclear how any of this contact lead to an ultimate decision which may be considered an abuse of power;

she breached the Family Law Act, s 121 by corresponding with the Applicant’s former spouse and the Chief Executive about family law affidavit material. On the evidence before it, the Tribunal could not be satisfied that this provision was in fact breached. As noted above, that provision only applies to the publication or dissemination to the public of information and would not apply to employees of a health service communicating internally;

she threatened to make knowingly false criminal allegations against the Applicant, to coerce him into accepting a voluntary redundancy and only withdrawing such threats when the Applicant agreed to accept a voluntary redundancy. The threat was said to have been made in a letter dated 3 September 2021 in which the Industrial Relations Specialist stated that, if the misconduct was substantiated, it may constitute a breach of the NSW Health Code of Conduct and the Crimes Act 1990 (NSW), s 91Q. It should be noted that threats are concerned with future conduct, not past conduct. The letter did not contain a threat but a statement of fact with appropriate context; that context was the Applicant’s request for information about what had been recorded as an interim record on the Service Check Register. The Applicant says that the Applicant’s Manager on 16 July 2021 had stated the allegations concerning pornographic material on the Applicant’s phone were false and misleading. The communication does not say this; the email says the Applicant’s Manager had not seen any photos. The Applicant asserts the same letter, being Annexure 18 to his affidavit, communicated an offer of voluntary redundancy; it does not, there is no reference to redundancy in that letter. There is no evidence that there was any coercion by the Industrial Relations Specialist of the Applicant about taking a voluntary redundancy. The Applicant put in evidence the decision memorandum prepared by the Applicant’s Manager dated in June 2021 which stated in part that the work performed by the Applicant as part of a ‘transformation team’ had moved ‘into an implementation phase’ that was being managed by another area of the Respondent’s operations. The decision memorandum proposed an offer of redundancy which, if declined would allow the Applicant to seek redeployment within a three-month retention period. Accordingly, on the evidence before it, the Tribunal does not consider the Applicant has been able to establish the conduct he alleges in this regard;

she received an email from the Chief Executive attaching the Applicant’s response to the stand-down letter. The receipt of this email was, according to the Applicant’s written submission, a breach of the protections under the Public Interest Disclosures Act 1994 (NSW), s 22. The Industrial Relations Specialist could not choose to receive this email, there was no breach by her receipt of that email. I have addressed the Applicant’s submissions concerning the Chief Executive’s conduct in this regard above; and,

the Applicant submits the Industrial Relations Specialist was instructed to ‘deal with’ the Applicant’s request for an internal privacy review despite having declared a conflict of interest. There is nothing in the Industrial Relations Specialist’s conduct in receiving instructions of this kind which brings about conduct which could be said to waive client legal privilege.

Consideration of whether client legal privilege is lost or waived

In several instances the Applicant failed to establish how the conduct he described in his evidence and submissions, and which has been set out above, was in fact connected to the communications over which client legal privilege was asserted by the Respondent.
The Applicant did not make any relevant submission that the conduct he claimed had occurred, even had it been established, gave rise to a conclusion of dishonesty, intentional or deliberate conduct that was on-going or that would give rise to the loss of client legal privilege. For privilege to be lost over a communication to which client legal privilege would otherwise apply that communication must be in furtherance, including the facilitation and the ongoing concealment of a crime or fraud: Kaye v Woods (No 2) (2016) 309 FLR 200, [2016] ACTSC 87 at [38]; Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [25], citing Watson v McLernon [2000] NSWSC 306 at [116] Amcor Ltd v Barnes [2011] VSC 341 at [60]. Each of these authorities were specifically referred to by the Applicant in his submissions.
Having reviewed the documents and the communications which the Applicant relies on that he submits are evidence of the furtherance of a fraud, I am satisfied there is no fraud of the kind contemplated by the authorities, the employees of the Respondent or its advisors.

Schedule 1, Clause 6: Excluded Information of another agency

GIPA Act, Sch 1, cl 6 provides:

It is to be conclusively presumed that there is an overriding public interest against disclosure information that is excluded information of an agency, other than information the agency has consented to disclosure of.

Excluded information of particular agencies is set out in GIPA Act, Sch 2 and includes, complaints handling and investigative functions of particular agencies, Information that relates to the Office of the Children’s Guardian concerning reportable conduct matters under the Children’s Guardian Act and further, pursuant to GIPA Act, Sch 2, cl 4, with regard to the Ministry of Health exercising functions under the Health Services Act, ss 122(1)(c) and 123.
Under the Children’s Guardian Act, Pt 4, the Children’s Guardian is charged with the administration of a scheme for the protection of children under which entities such as the Respondent are required to report and investigate allegations of ‘reportable conduct’ and provide notifications of reportable convictions. The term ‘reportable conduct’ is defined to include various offences and other harms against a child; Children’s Guardian Act, s 20. As a consequence, information of this kind is excluded information under the GIPA Act, Sch 2, cl 2.
Health Services Act, s 122(1)(c) provides:

122 Functions of the Health Secretary
(1) The Health Secretary has the following functions under this Act—
(c) to inquire into the administration, management and services of any public health organisation,

Health Services Act, s 123 provides:

123 Inquiries by Health Secretary
(1) The Health Secretary may inquire into the administration, management and services of any organisation or institution providing health services (other than a public health organisation) if those services are wholly or partly funded with money paid from the Consolidated Fund.
(2) However, the Health Secretary cannot make any inquiry under this section in respect of a private health facility or nursing home.
(3) The Health Secretary may delegate the conduct of any inquiry under this section to any other person.
Note—
Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.
(4) Nothing in this section prevents the Health Secretary inquiring into the administration, management and services of any public health organisation under section 122(1)(c).

With regard to the material which may have been subject to the definition of excluded information under the GIPA Act, Sch 2, cl 2, the DGRA’s evidence was that employees of the Respondent had consulted with the Office of the Children’s Guardian, as required under the GIPA Act, Sch 1, cl 6(2), and that the Office of the Children's Guardian had confirmed that the information was excluded information and that it did not consent to its disclosure. I accept that evidence.

279

NR

Having reviewed this document, I consider that, in addition to staff phone numbers, it contains information, provided to the Respondent in confidence and as such considerations described in cl 1(g) arise and, having regard to the content of the information, I have given that consideration significant weight.

Additionally, I find that the considerations under cl 3(a) and 3(b) of the Table arise with regard to this material and that these considerations should be given significant weight.

Having then considered factors in favour and against disclosure I have determined that this document should not be released to the Applicant.

280 – 283

F

Released to the Applicant in full by the Respondent.

284

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

285

F

Released to the Applicant in full by the Respondent.

286

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

287 – 290

F

Released to the Applicant in full by the Respondent.

291

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

291A

F

The Respondent did not make submissions about this document at hearing.

Despite the decision table recording redactions on the basis of cl 3(a) and cl 3(b), the Tribunal is unable to find any redactions and it appears the entirety of the document has been released. In any event, the document appears to be an email sent by the Applicant to one of the Respondent's staff.

Accordingly, to the extent necessary, the Respondent's decision is set aside and this document is to be released in full to the Applicant.

291B

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

292 – 294

F

Released to the Applicant in full by the Respondent.

295 – 297

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

298

F

Released to the Applicant in full by the Respondent.

299

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

300 - 303

F

Released to the Applicant in full by the Respondent.

304

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

305 - 323

F

Released to the Applicant in full by the Respondent.

324

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

325 – 326

F

Released to the Applicant in full by the Respondent.

327 – 328

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

328A

F

This document is a completed service check register form. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

329

F

Released to the Applicant in full by the Respondent.

330

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

330A

F

This document is a staff separation form and contains no apparent redactions. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

331

F

Released to the Applicant in full by the Respondent.

332 – 332A

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

333

F

Released to the Applicant in full by the Respondent.

334

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

335

F

Released to the Applicant in full by the Respondent.

336

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

336A

F

This document is a letter addressed to the Applicant. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

337

P

Having reviewed this material, I consider that considerations under cll 3(a) and 3(b) arise.

[NOT FOR PUBLICATION]

The material has been collected for a particular purpose and its disclosure would be contrary to that purpose. I have determined that the considerations against disclosure prevail in this instance.

Accordingly, the Respondent's decision with regard to this document is affirmed.

337A

F

This document is a letter addressed to the Applicant. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

338 – 339

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

339A

F

This document is a letter addressed to the Applicant. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

340

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

341

F

Released to the Applicant in full by the Respondent.

342

P

Having reviewed the document, and in particular the redacted material, I consider that considerations under cll 3(a) and 3(b) arise. The material has been collected for a particular purpose and its disclosure would be contrary to that purpose. I have determined that the considerations against disclosure prevail in this instance. Accordingly, the Respondent's decision with regard to this document is affirmed.

343

F

Released to the Applicant in full by the Respondent.

344 – 345

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

346

F

Released to the Applicant in full by the Respondent.

347

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

348, 348A, 349

F

Released to the Applicant in full by the Respondent.

350

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

350A

F

This document relates to the Applicant's employment, specifically calculations for his redundancy payment. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

351

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

351A – 351C

F

These documents concern the Applicant's departure from his employment and include his signed redundancy form and calculations for his redundancy payment. I have determined that it is in the public interest that this document be released in full to the Applicant within 28 days of the Tribunal's orders.

352 – 353

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

354 - 362

NR

Having reviewed each of these documents and considered the submissions of both parties concerning whether client legal privilege attaches to the communication recorded in these documents, I am satisfied that the documents contain information that would be privileged from production in legal proceedings on the ground of client legal privilege.

I am further satisfied that there has been no waiver by the Respondent of that privilege.

Accordingly, in accordance with the GIPA Act, Sch 1, cl 5 there is a conclusive overriding public interest against disclosure of the information contained in these documents. I affirm the Respondent’s decision that these documents should not be released to the Applicant.

363 – 363A

NR

These documents contain information received by the Respondent in confidence from other agencies including NSW Police and the Department of Communities and Justice, consequently, considerations under cll 1(d) and 1(g) of the Table arise. Further, the document contains personal information of a child that would not be in that child's best interests to disclose in the unrestricted manner provided under the GIPA Act; accordingly, consideration under cll 3(a), 3(b) and 3(g) of the Table arise. I have attributed significant weight to these considerations against disclosure both individually and collectively and have determined that those considerations prevail over considerations in favour of disclosure.

Accordingly, I affirm the Respondent's decision to refuse access to this document.

364

NR

Having reviewed the document and considered the submissions of both parties concerning whether client legal privilege attaches to the communication recorded in this document, I am satisfied that the document contains information that would be privileged from production in legal proceedings on the ground of client legal privilege. The document records confidential communications between employees of the Respondent and its solicitors. I am further satisfied that there has been no waiver by the Respondent of that privilege.

Accordingly, in accordance with the GIPA Act, Sch 1, cl 5 there is an overriding public interest against disclosure of the information contained in this document.

I affirm the Respondent’s decision that this document should not be released to the Applicant.

365

NR

Having reviewed this material, I consider that considerations under cll 3(a) and 3(b) arise. The material has been collected for a particular purpose and its disclosure would be contrary to that purpose.

[NOT FOR PUBLICATION]

While I have given significant weight to the considerations in favour of disclosure, I have determined that the considerations against disclosure prevail in this instance. Accordingly, the Respondent's decision with regard to this document is affirmed.

366

F

Released to the Applicant in full by the Respondent.

367

P

This document contains material to which considerations under cl 3(g) of the Table arise. I do not consider it to be in the interests of the child that his or her personal information should be disclosed. I attribute significant weight to this factors. Accordingly, this factor prevails over considerations favouring disclosure and I affirm the Respondent's decision to redact this document.

368

F

Released to the Applicant in full by the Respondent.

369 – 370

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

371

P

Aside from redactions of staff mobile phone numbers which the applicant conceded in his application, this document contains material to which considerations under cll 3(a), 3(b) and 3(g) of the Table arise.

With regard to cll 3(a) and 3(b), the personal information, having been disclosed to the Respondent for a particular purpose, is not information that should be disclosed under the GIPA Act.

With regard to cl 3(g), I do not consider it to be in the interests of the child that his or her information should be disclosed. I attribute significant weight to these factors.

Accordingly, these factors prevail over considerations favouring disclosure and I affirm the Respondent's decision to redact this document.

371A

NR

To the extent this document comes within the scope of the Applicant's request - and there is doubt about this - this document contains material to which considerations under cll 3(a), 3(b) and 3(g) of the Table arise.

With regard to cll 3(a) and 3(b), the personal information, having been disclosed to the Respondent for a particular purpose, is not information that should be disclosed under the GIPA Act.

With regard to cl 3(g), I do not consider it to be in the interests of the child that his or her information should be disclosed in the uncontrolled manner contemplated by the GIPA Act. I attribute significant weight to these factors.

Accordingly, these factors prevail over considerations favouring disclosure and I affirm the Respondent's decision not to release this document.

371B – 371D

NR

These documents contain material to which considerations under cll 3(a), 3(b) and 3(g) of the Table arise.

With regard to cll 3(a) and 3(b), the personal information, having been disclosed to the Respondent for a particular purpose, is not information that should be disclosed under the GIPA Act.

With regard to cl 3(g), I do not consider it to be in the interests of the child that his or her information should be disclosed in the uncontrolled manner contemplated by the GIPA Act.

I attribute significant weight to these factors.

Accordingly, these factors prevail over considerations favouring disclosure and I affirm the Respondent's decision not to release this document.

372 – 373

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information.

Accordingly, I affirm the Respondent's decision in this regard.

374 – 375

P

Aside from the conceded redactions of staff mobile phone numbers, the information redacted by the Respondent is excluded information for the purposes of the GIPA Act, Sch 1, cl 6 being information relating to the exercise of the functions of the Office of the Children's Guardian under the Children's Guardian Act 2019, Part 4. I have accepted the evidence of the DGRA that that the Children's Guardian has not consented to the release of this information.

Accordingly, I affirm the Respondent's decision with regard to the redaction of that material.

376

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

377 - 379

F

These documents are emails with an access log report number and staff mobile phone numbers redacted. There is no reason why this information should not be released to the Applicant.

The Respondent has not demonstrated why this exception under cl 3(a) and (b) of the table would apply to these documents.

I have determined that it is in the public interest that these documents be released to the Applicant, subject only to his concession regarding the redaction of staff mobile phone numbers, within 28 days of the Tribunal's orders.

380

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

381

NR

Having reviewed the document and considered the submissions of both parties concerning whether client legal privilege attaches to the communication recorded in this document, I am satisfied that the document contains information that would be privileged from production in legal proceedings on the ground of client legal privilege.

The document records confidential communications between employees of the Respondent and its solicitors.

I am further satisfied that there has been no waiver by the Respondent of that privilege.

Accordingly, in accordance with the GIPA Act, Sch 1, cl 5 there is an overriding public interest against disclosure of the information contained in this document. I affirm the Respondent’s decision that this document should not be released to the Applicant.

382

F

Released to the Applicant in full by the Respondent. Any client legal privilege attaching to this document has been waived by release of the document to the Applicant by the Respondent. The Respondent has not released attachments, being documents 268A and 268B and these are considered separately..

382A

NR

This is an attachment to document 382.

[NOT FOR PUBLICATION]

Having reviewed the document and considered the submissions of both parties concerning whether client legal privilege attaches to the communication recorded in this document, I am satisfied that the document contains information that would be privileged from production in legal proceedings on the ground of client legal privilege.

I am further satisfied that there has been no waiver by the Respondent of that privilege. Accordingly, in accordance with the GIPA Act, Sch 1, cl 5 there is an overriding public interest against disclosure of the information contained in this document. I affirm the Respondent’s decision that this document should not be released to the Applicant.

382B

NR

This is an attachment to document 382. It accompanies document 382A and for the same reasons (as referred to immediately above) I am satisfied that the document contains information that would be privileged from production in legal proceedings on the ground of client legal privilege. Therefore, in accordance with the GIPA Act, Sch 1, cl 5 there is an overriding public interest against disclosure of the information contained in this document. I affirm the Respondent’s decision that this document should not be released to the Applicant.

383

F

Released to the Applicant in full by the Respondent.

384

NR

Having reviewed the document and considered the submissions of both parties concerning whether client legal privilege attaches to the communication recorded in this document, I am satisfied that the document contains information that would be privileged from production in legal proceedings on the ground of client legal privilege.

The document records confidential communications between employees of the Respondent and its solicitors. I am further satisfied that there has been no waiver by the Respondent of that privilege.

Accordingly, in accordance with the GIPA Act, Sch 1, cl 5 there is an overriding public interest against disclosure of the information contained in this document. I affirm the Respondent’s decision that this document should not be released to the Applicant.

385 – 386

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

386A

This document is an attachment to the email at document 386. It discloses information received in confidence by the Respondent and I consider it likely that disclosure of this information may prejudice the effectiveness of the exercise of the Respondent's functions.

Having reviewed the document, it also appears that at least one paragraph on page 882 discloses law enforcement methods and consequently I consider that considerations under cl 2(b) of the Table arises.

Having regard to the factors for and against disclosure, I consider that the factors against disclosure of this document prevail. Accordingly, I affirm the decision of the Respondent not to release this document.

387 – 389

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

390

F

Released to the Applicant in full by the Respondent.

391 – 393

P

The redactions remove only staff mobile phone numbers. In his original request, the Applicant expressly conceded he was not seeking material concerning the personal information of staff of the Respondent including this information. Accordingly, I affirm the Respondent's decision in this regard.

394

F

Released to the Applicant in full by the Respondent.

Adequacy of Search

As the Respondent submits, an agency’s search efforts are not reviewable by the Tribunal; however, the adequacy of an agency’s search will be relevant to the Tribunal’s consideration of the agency’s implied decision that no further information is held by it responsive to the request other than those documents identified in the May Determination and the July Determination. I agree with that submission and note that it is consistent with the Appeal Panel decision in Klaric v Commissioner of Police [2020] NSWCATAP 153 at [33].
After considering the authorities, including Klaric, the Appeal Panel in Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 summarised the task for the Tribunal in assessing whether an agency has fulfilled its statutory obligation under the GIPA Act, s 53 to conduct a reasonable search. The Appeal Panel, in Wojciechowska at [44] stated:

In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:
(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1)– (5);
(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;
(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;
(4) applying those findings, decide what the correct or preferable decision is;
(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

The evidence from the Respondent’s DGRA was that she read the request as concerning emails sent and received over a defined period by named employees and roles. Consequently, the DGRA requested material from the named employees, as noted above, she contacted 12 employees directly, and it was her expectation that they would search their email inboxes and archived materials. The statements of the PPM and DPC establish that they undertook such searches. There was further search, which brought forth the material in the July Determination demonstrates, principally sourced from the PPM’s emails – which had been spurred by the Applicant’s correspondence of 12 May 2022. As noted above, the DGRA provided her opinion that these additional documents had failed to be downloaded when the secure program used to provide the material to her had been interrupted in the course of the PPM providing material.
The Applicant has submitted that, there was a communication between the Chief Executive, his former spouse and another person were not provided or identified ‘despite the material containing allegations about me, and emails containing family law material’ that had been authored by the Applicant The Applicant also refers to the Industrial Relations Specialist having a copy of an Apprehended Domestic Violence Order issued by the NSW Police which has not been produced. The Applicant does not directly allege inadequacy of search: instead he alleges deliberate destruction, concealment or alternation to government records to prevent disclosure, by reference to the sub-heading in his submissions to the GIPA Act, s 120. There is no evidence, in general or particular, of such an offence having been committed and I reject the Applicant’s submission in this regard.
Having regard to the large volume of material produced under the May and July Determinations, the DGRA’s evidence and that of the PPM and DPC, I find that it is more probable than not that, after the July Determination, there are no further documents held by the Respondent that are relevant to the Applicant’s request. There was no further evidence that has emerged since the July Determination to suggest that there is further information held by the Respondent relevant to the Applicant’s request. The Respondent submits that it would be unlikely, having regard to the volume of material already identified, that further searches would locate any further responsive information; I agree with that submission.
Accordingly, having regard to my findings and to the provisions of the GIPA Act, s 53, I consider the correct and preferable decision with regard to the adequacy of search question, is that the search undertaken by the Respondent was reasonable and that no further information is held other than that which has been identified by the Respondent in the May Determination and the July Determination.

Conclusion

Accordingly, and for the reasons set out above, I find that the decision of the Respondent should be set aside to the following extent:

the documents identified in the Respondent’s schedules as documents 151A; 155A and 160A are to be released to the Applicant in full; and

the documents identified in the Respondent’s schedules as documents 40, 377, 378 and 379 are to be released subject only to the removal of the mobile phone numbers of the Respondent’s staff.

In respect of all other documents identified by the Respondent as coming within the scope of the Applicant’s request, I affirm the Respondent’s decision.
The documents to be provided to the Applicant are to be released to him without the disputed redactions no later than 28 days from the date of this decision. Such period of delay is consistent with GIPA Act, s 107.

Orders

Accordingly, I make the following orders:

The Respondent’s decision is set aside to the extent that:

the documents identified in the Respondent’s schedules as documents 151A; 155A and 160A are to be released to the Applicant in full; and

the documents identified in the Respondent’s schedules as documents 40, 377, 378 and 379 are to be released subject only to the removal of the mobile phone numbers of the Respondent’s staff.

The Respondent’s decision is otherwise affirmed.

Publication of the confidential evidence filed by the respondent in these proceedings is prohibited.

Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited.

Pursuant to Civil and Administrative Tribunal Act2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

**********

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

10 July 2024 - Coversheet - Orders 1(a) and 1(b) - documents to be released amended.

Paragraphs 172 (1) and 172 (2) – conclusion amended to reflect orders.

Orders 1(a) and 1(b) - documents to be released amended.

Decision last updated: 10 July 2024

Medium Neutral Citation:	FKH v Murrumbidgee Local Health District [2023] NSWCATAD 313
Hearing dates:	15 August 2022, 24 August 2022
Date of orders:	08 December 2023
Decision date:	08 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Gatland, Senior Member
Decision:	(1) The Respondent’s decision is set aside to the extent that: (a) the documents identified in the Respondent’s schedules as documents 151A; 155A and 160A are to be released to the Applicant in full; and (b) the documents identified in the Respondent’s schedules as documents 40, 377, 378 and 379 are to be released subject only to the removal of the mobile phone numbers of the Respondent’s staff. (2) The Respondent’s decision is otherwise affirmed. (3) Publication of the confidential evidence filed by the respondent in these proceedings is prohibited. (4) Disclosure to the Applicant of the confidential evidence filed by the respondent in these proceedings is prohibited. (5) Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public. (6) Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.
Catchwords:	ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Australian Human Rights Commission Act 1986 (Cth) Children and Young Persons (Care and Protection) Act 1998 (NSW), Ch 16A, s 29 Children’s Guardian Act 2019 (NSW), Part 4, ss 245F, 254 Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW), ss 118, 119, 125 Family Law Act 1975 (Cth), s 121 Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 53, 55, 58, 80, 100, 105, 107, Sch 1, cll 5, 6, 10, Sch 2, cll 2, 4 Health Records and Information Privacy Act 2002 (NSW), s 72 NSW Health Services Act 1997 (NSW), ss 120A, 122, 123 Ombudsman Act 1974 (NSW) Privacy and Personal Information Protection Act 1998 (NSW), s 18 Public Interest Disclosures Act 1994 (NSW), Part 2, ss 20, 22 Crimes Act 1990 (NSW), s 91Q
Cases Cited:	Amcor Ltd v Barnes [2011] VSC 341 APD v Commissioner of Police [2012] NSWADT 42 AQJ v University of NSW [2013] NSWCATAD 306 AWB Ltd v Cole & Anor (No. 5) (2006) 155 FLR 30; [2006] FCA 1234 Battin v University of New England [2013] NSWADT 73 Betzis v Commissioner of Police [2020] NSWCATAD 71 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 Carrafa v Asfar (No 3) [2023] NSWSC 24 Clements, Dunne and Bell Pty Limited v Australian Federal Police [2001] FCA 1858 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Limited [1972] Ch 553 Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 Director General, Department of Education and Training v Mullet and Randazzo (No 2) [2002] NSWADTAP 29 Director of Public Prosecutions (NSW) v Stanizzo (2019) 367 ALR 256; [2019] NSWCA 12 Esso v Commissioner of Taxation (1991) 201 CLR 49 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Gene Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 Grant v Downs (1976) 135 CLR 674 Hodgson v Amcor No. 2 [2011] VSC 295 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Ibrahim v Commissioner of Police (NSW) [2004] NSWADTAP 8 Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222 Kang v Kwan [2001] NSWSC 698 Kaye v Woods (No 2) (2016) 309 FLR 200; [2016] ACTSC 87 Klaric v Commissioner of Police [2020] NSWCATAP 153 Kreutzer v University of Sydney [2015] NSWCATAD 270 Leech v Sydney Water Corporation [2010] NSWADT 198 Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 McCrystal v Commissioner of Police (NSW) [2020] NSWCATAD 122 McDonald v Ku-ring-gai Council [2022] NSWCATAD 17 Murphy v Broken Hill City Council [2015] NSWCATAD 135 Neary v State Rail Authority [1999] NSWADT 107 R v Cox and Railton (1884) 14 QBD 153 Raven v The University of Sydney [2015] NSWCATAD 104 Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 Robinson v Director General, Department of Health [2002] NSWADT 222 Saggers v Attorney General's Department [2005] NSWADT 193 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Smolenski v Commissioner of Police [2015] NSWCATAP 235 South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83 Talako v Talako [2014] VSC 328 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Robinson [2018] NSWCATAP 123 Transport for NSW v Searle [2018] NSWCATAP 93 Van Der Lee v New South Wales [2022] NSWCA 286 Watson v McLernon [2000] NSWSC 306 Watts v Department of Planning and Environment [2016] NSWCATAD 42 Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 YG & GG v Minister for Community Services [2002] NSWCA 247
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FKH (Applicant) Murrumbidgee Local Health District (Respondent)
Representation:	Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2022/00096051
Publication restriction:	Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public