GTY v Secretary, Department of Education

[2025] NSWCATAD 140

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTY v Secretary, Department of Education [2025] NSWCATAD 140

Hearing dates:

20 January 2025; 10 April 2025

Date of orders:

16 June 2025

Decision date:

16 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

Administrative Law – GIPA Act – Government Information – access – personal information – whether disclosure is in the best interests of a child - balancing competing public interest factors for and against disclosure

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Government Information (Public Access) Act 2009

Privacy and Personal Information Protection Act 1998

Health Records and Information Privacy Act 2002

Cases Cited:

AIN v Medical Council of New South Wales [2017] NSWCATAP 23

Attorney-General's Department v Cockcroft (1986) 10 FCR 180

Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60

Battin v University of New England [2013] NSWADT 73

Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5

Charisteas v Charisteas [2021] HCA 29

Collier v Country Women's Association of New South Wales [2018] NSWCA 36

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

DRP v Orange City Council [2020] NSWCATAD 220

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

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

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

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550

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

Medlyn v Commissioner of Police [2020] NSWCATAD 125

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

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

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

Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4

Raven v The University of Sydney [2015] NSWCATAD 104

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Taylor v Destination NSW [2020] NSWCATAD 137

Transport for NSW v Searle [2018] NSWCATAP 93

Turnbull v Strange [2018] NSWCA 157

Zonnevylle v Minister for Education and Early Childhood Learning [2023] NSWCATAD 135.

Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53

Texts Cited:

None cited

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Applicant (Self represented)
Crown Solicitor (Respondent)

File Number(s):

2024/00376961

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis, the name of the Applicant and the identity of the Applicant’s children, the mother of the children or the school that the children attend. That material is not to be released other than to the Respondent without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application for review of decisions of a delegate of the Secretary, Department of Education (“the Respondent”) under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The decisions were in response to access applications lodged by the Applicant under the GIPA Act.

2. I have formed the view that due to the sensitive nature of these proceedings, it is appropriate to make orders under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the name of the Applicant and any child referred to in the evidence before the Tribunal and the name of any other person which may tend to identify the name of the Applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal. The Family Law Act also imposes restrictions on communication of family law proceedings.

3. In these reasons, in order to prevent their identification, the access applicant (“the Applicant”) is referred to as GTY. I will refer to the Applicants children as Child 1 and Child 2. I will refer to the mother of the children as “the mother” and the school that the children attend as “the school.”

Bias

4. For completeness, I note that the Applicant expressed concern in relation to my reaction to comments that he made in the proceedings. His allegation, which is denied, is that I laughed at comments that he made in relation to orders that have been made against him in other forums. I did not laugh at his comments. I accept that I may have involuntarily reacted with an expression of bemusement at his comments.

5. The Applicant did not frame his concern in terms of bias however I will consider his comments in that regard.

6. The tests in relation to actual bias and apprehension of bias were discussed by Senior Member Mulvey in Zonnevylle v Minister for Education and Early Childhood Learning [2023] NSWCATAD 135. He summarised the tests at paragraphs [37] - [38]:

1. In deciding to refuse the application to recuse myself I considered the principles governing a recusal application as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, which was recently reaffirmed in Charisteas v Charisteas [2021] HCA 29.

2. The application of the principle, in so far as it relates to an apprehension of bias was set out by the Appeal Panel in Zonnevylle v Secretary, Department of Education; Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 53 at [18] – [19], which is as follows:

   “[18] The application of the principle, insofar as it relates to an apprehension of bias, requires two steps as set out in Ebner at [8]. First, it requires the identification of what is said might lead the Judge to decide the case other than on the legal and factual merits. The second step is that it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its own merits. That second step is equally as important as the first, in that the applicant for recusal must ensure that they have addressed both of those issues. It is also the case that in considering such an application, a fair minded lay observer’s reasonable view is taken in the context of ordinary judicial practice, as set out Charisteas at [12].

   [19] The test in relation to actual bias is that the Judicial Officer or Tribunal Member has brought a closed mind to the application or have pre-judged it and in that respect I refer to Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 at [27] which confirmed a decision of Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68-73]:

   “If actual bias is asserted to arise from a form of prejudgment, the appellant has to establish that relevantly for present circumstances I was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.””

   7. In this matter, I do not accept that I have brought a closed mind to the application or have pre-judged it. Further, I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to that issue or to the resolution of other questions that I am required to decide.

Background to the access application

8. The Applicant’s access applications sought access to information held by the Respondent that concerns Child 1 and Child 2. A total of 28 pages of information were received from the School and identified as relevant to the access application in relation to Child 1, and a total of 80 pages were received from the School and identified as relevant to the access application in relation to Child 2.

9. In September 2024, the Respondent’s Principal Right to Access Officer decided to release some of the requested information and refused the remainder of the Applicant’s request.

10. A person aggrieved by a reviewable decision is entitled to seek an internal review of such a decision under section 82 of the GIPA Act. A decision to provide access or to refuse to provide access to information in response to an access application is a reviewable decision in accordance with section 80(d) of the GIPA Act. The Applicant requested an internal review of the decisions in regard to some of the information that he had requested.

11. With respect to Child 1 he sought:

1. All correspondence held by the School regarding Child 1, including emails from teachers but excluding emails to and from myself.

2. The name of the company that was hired to take school photos of the 2024 school year.

3. All sick days reports or early school leave.

4. A formal copy of all school reports.

   12. With respect to Child 2 he sought:

In relation to Child 2:

1. All correspondence held by the School regarding Child 2, including emails from teachers but excluding emails to and from myself.

2. The name of the company that was hired to take school photos of the 2024 school year.

3. All sick days reports or early school leave.

4. A formal copy of all school reports.

The Determination

13. Ms Jenni Pendergast, the Respondent’s Manager Right to Access, determined the internal review applications and decided to uphold the original decisions. In her decision with respect to Child 1, Ms Pendergast stated:

In making this decision I have applied the public interest test under sections 12 to 15 of the GIPA Act by balancing the public interest considerations.

Personal factors of the application

Section 55 of the GIPA Act allows me to take into consideration personal factors of the application when determining whether there is an overriding public interest against disclosing information. This includes the applicant's motives and any other factors particular to the applicant.

The personal factors may include:

a)   your motives for making the application

b)   your identity and relationship with any other person

c)   any other factors particular to you.

I am entitled to have regard to information provided by you or any other person.

On your original application, under reasons for making this application, you stated: "For my own personal records as I am the father of both Children. I spoke with the principal from [the] School who informed me that I would be required to complete a FOIA request for information. I am currently going through Federal Court regarding Custody."

You also provided a family law court order dated 8 February 2023 which enumerates at [9] parental permissions in relation to the children's school records.

The school provided family court orders dated 8 February 2023, and 5 September 2023 and 18 December 2023 respectively. The school also provided an Apprehended Domestic Violence Order dated 22 November 2023 and another document.

You particularly mentioned that you want the name of the school photography company.

On 24 September 2024 I spoke with you on the telephone where you asked whether I had received the Family Court Orders and you sent them to me again on that day.

Clause 7 of the Family Law orders dated 8 February 2023 states:

To the extent that orders 2, 5 and 6 herein are inconsistent with the family violence order first made on 10 November 2022 then pursuant to s. 68Q(l) of the Family Law Act 1975 the family violence order is invalid to the extent of that inconsistency.

I note that in the Family Law orders, made on 5 September 2023, Order 1 suspends orders 2-6 of the Orders made on 8 February 2023.

Clause 9 states the following:

Each party is permitted to speak with the teachers of each of the Children and to obtain, at that party's cost, from any school attended by the Children copies of all school reports, newsletters, school photographs, behaviour cards and parental communications, with each party permitted to provide a sealed copy of these orders to each such school.

Clause 9 is not one of the clauses which would be invalid due to an inconsistency between the Family Law Order and the family violence order, therefore, I need to consider the information before me and balance whether the overriding public interest considerations against disclosure outweighs the public interest considerations in favour of disclosure.

These personal factors are relevant to determining whether there is an overriding public interest against disclosing the information to you.

Consultation

No further consultation was undertaken for this review. I have, however, taken into consideration the views of the third party as provided to the department in the original decision.

Personal information

I have upheld the original decision that pages 6 - 28 contain personal information of third parties. Such information has been deleted from the records released to you. In making this decision, I have applied the public interest test as follows:

Public Interest considerations in favour of disclosure:

• there is a general public interest in favour of disclosure (section 12(1) of the GIPA Act);

• the information requested is your daughter's personal information; and

• disclosure of the information could assist with your legal matter.

Public Interest considerations against disclosure as contained in the Table at section 14 of the GIPA Act: disclosing the information could reasonably be expected to have one or more of the following effects:

• reveal the personal information of other individuals (Item 3(a));

• contravene Information Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (“PPIP Act”) and/or Health Privacy Principle 11 under the Health Records and Information Privacy Act 2002 “(HRIP Act”) (Item 3(b)); and

• disclose information that would not be in the best interests of the children concerned (Item 3(g)).

Schedule 4, Clause 4 of the GIPA Act defines personal information. I am satisfied that the records reveal personal information of third parties because it is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information, and none of the exceptions at Clause 4 apply. The personal information reveals the names, contact details, health and other personal information of third parties. This information is contained within the following types of documents: emails, correspondence and reports.

I am also satisfied that disclosure of this information could reasonably be expected to contravene the disclosure information protection principle in section 18 of the PPIP Act and/or Health Privacy Principle 11 of the HRIP Act.

...

Disclosing the information without the consent of the third parties is likely to contravene the above Information Protection and Health Privacy Principles because the information was provided to the department for a specific purpose, namely, to monitor your daughter's wellbeing and learning requirements and to provide information to management about her behaviour and interaction with the school community. To give you access under the GIPA Act is not in keeping with the purpose for which the information was collected. None of the exceptions under section 18 of the PPIP Act apply to you.

Releasing the information would also provide you with private details of individuals mentioned in the records and as I am unable to impose any conditions on the disclosure under the GIPA Act, there is no way to protect the information.

Information marked 'Items 3(a), 3(b), 3(g)' on the schedule is personal information about students who were children at the relevant time. Disclosing it to you would not be in the best interest of those children because the release of the information may have a serious negative impact on your daughter's general wellbeing and learning.

These factors weigh strongly against disclosure.

Conclusion on Public interest test - Personal Information

In balancing the relevant public interest considerations, I have considered the factors in favour of release, in particular that most of the information is about your daughter and the information may assist with your legal matters. These are strong factors in favour of release.

However, in considering the factors against release, including the personal factors under section 55 of the GIPA Act and including the objections received from the third party/parties in consultation, I agreed with the original decision maker and uphold that the public interest in protecting the third parties' privacy considerably outweighs the public interest in releasing their personal information to you. I find that there is an overriding public interest against disclosure of the information and have decided not to provide you with access to those parts of the records that reveal the personal and/or health information of other individuals.

14. Ms Pendergast’s reasons for decision in relation to Child 2 are in a similar form.

15. The Respondent also relies on a confidential statement of Ms Pendergast that provides details of third party consultation undertaken in determining the Applicant's access application, and sensitive information imparted during the course of that consultation. I have made an order under section 64(1) of the NCAT Act prohibiting its disclosure to the Applicant or to any other person.

16. I acknowledge that there is a degree of unfairness arising to the Applicant from the admission of evidence on a confidential basis. However, in the circumstances I am satisfied that the order is warranted because of the sensitive nature of the information.

Applicable legislation

17. The object stated under section 3(1) of the GIPA Act is to open government information to the public by authorising and encouraging proactive public release of government information (section 3(1)(a)); and giving members of the public an enforceable right to access government information (section 3(1)(b)). It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object: section 3(2)(a).

18. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information.

19. Generally speaking, the use or disclosure of information to which access is provided in response to an access application cannot be made subject to conditions: GIPA Act, section 73.

20. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.

21. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.

22. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].

23. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at paragraph [6].

24. The public interest considerations listed in the Table to section 14 of the GIPA Act are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

17. In this matter, the Respondent relies on the public interest considerations against disclosure set out in clauses 3(a), 3(b) and 3(g) of the Table to section 14 of the GIPA Act.

18. The Tribunal stands in the shoes of the agency. Section 58 of the GIPA Act provides for a number of different ways in which an access application can be decided:

58 How applications are decided

1. An agency decides an access application for government information by—

(a)   deciding to provide access to the information, or

(b)   deciding that the information is not held by the agency, or

(c)   deciding that the information is already available to the applicant …, or

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

(e)   deciding to refuse to deal with the application …, or

(f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note—

These decisions are reviewable under Part 5.

...

27. Pursuant to section 72 of the GIPA Act, access can be granted to information in a number of different ways. Pursuant to section 73(1) of the GIPA Act, access granted to the information released in response to an access application is to be unconditional. Generally speaking, the use or disclosure of the information cannot be made subject to conditions. Section 73 of the GIPA Act provides:

73 Access to be unconditional

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

2. A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.

3. A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.

...

28. Part 5 of the GIPA Act provides for which decisions are reviewable. The decision under review is a reviewable decision in accordance with section 80(d) of the GIPA Act:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part—

…

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

…

29. The Tribunal's jurisdiction is enlivened by section 100 of the GIPA Act.

30. Section 104(3) of the GIPA Act confers a right for any person who might be aggrieved by a decision of the Tribunal on review to appear and be heard in any proceedings before the Tribunal in relation to that review. The Respondent consulted with a third party who might be aggrieved by a decision of the Tribunal. The third party objected to the disclosure of information to the access Applicant, but did not seek to be heard in the proceedings.

31. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified.

32. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Public Interest Considerations in favour

33. The general public interest favouring the disclosure of government information is recognised by section 12(1) of the GIPA Act. The parties have identified a number of public interest considerations in favour of disclosure of the withheld information. I agree that the following are applicable in this matter:

• The general public interest in favour of disclosure of government information.

• The disclosure of the information could reasonably be expected to promote openness and transparency and accountability regarding the Respondent’s decision-making processes.

• The Applicant is the father of the children.

• The disclosure of the information could possibly assist the Applicant with future Family Law Act legal matter should they arise.

Public Interest Considerations against disclosure

34. The Table to section 14 of the GIPA Act sets out the only considerations against disclosure that may be taken into account when applying the public interest test in section 13. In relation to the considerations in the Table, the evidence must demonstrate that the considerations could reasonably be expected to have one or more of the stated effects set out in the clauses.

35. The public interest considerations against disclosure need to be examined at a broad operational level and many of those considerations are concerned with systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5.

36. The words ‘could reasonably be expected to’ require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected.

37. The Respondent identified a number of documents as falling within the scope of the access applications. The Respondent provided partial access to school reports of each child but refused to provide access to the balance of the information on the grounds that it was subject to an overriding public interest against disclosure.

38. As noted, the Respondent relies on the overriding public interest considerations against disclosure in clauses 3(a), 3(b), and 3(g) of the table to section 14 of the GIPA Act. Those clauses provide:

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

(a)   reveal an individual’s personal information,

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

…

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

39. The Information Protection Principle (“IPP”) set out in section 18 of the PPIP Act states:

18 Limits on disclosure of personal information

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

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

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

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

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

   40. Health Privacy Principle 11 (“HPP”) under the HRIP Act states:

11 Limits on disclosure of health information

An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless—

(a)   Consent

the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or

(b)   Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or

Note—

For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

…

The Respondent’s case.

41. The Respondent’s solicitors Ms Mattes and Mr Allchurch provided both written and oral submissions in support of the Respondent’s case.

42. As noted, the Respondent bears the onus of satisfying the Tribunal that its decision is justified. The Respondent relies on open and confidential evidence by Ms Pendergast. It also relies on a bundle of material filed on a confidential basis. That material includes copies of the documents that fall within the scope of the access applications that have not been released.

43. The Respondent accepts that the Applicant may be aware that a complaint was made against him in relation to conduct towards the children but submits that he has not been provided access to the withheld information or the material that has been filed on a confidential basis. He is the subject of Federal Circuit and Family Court orders and an Apprehended Domestic Violence Order (“the AVO”) that was issued in November 2023 for the protection of the mother and the children. Orders made in January 2025 prevent him from having any contact with the children.

44. In response to the access application, the Respondent’s Principal Right to Access Officer consulted the mother and was informed that the mother did not want the requested information released. The mother expressed concern that the release would cause fear into the children.

45. The Respondent accepts that a previous order by the Federal Circuit and Family Court (“the Court”) had stated:

1. Each party is permitted to speak with the teachers of each of the Children and to obtain, at that party's cost, from any school attended by the Children copies of all school reports, newsletters, school photographs, behaviour cards and parental communications, with each party permitted to provide a sealed copy of these orders to each such school.

   46. The Respondent accepts that such an order would warrant some weight. However, the Respondent notes that the order has been replaced by the current order which denies the Applicant any contact with the children. As the order is previous is no longer in place, its content should be given no weight.

   47. The Respondent also submits that little to no weight should be given to the fact that the Applicant is the father of the children, when considering the considerations in favour of release of the withheld information, because of the Court order and the AVO which deny the Applicant any contact with the children.

   48. With respect to considerations against disclosure of the withheld information, the Respondent submits that the information contains personal information of a number of individuals, including the children and the mother. The Respondent notes that the mother has objected to release of the withheld information.

   49. The Respondent submits that section 18 of the PPIP Act and HPP 11 apply to the withheld information and none of the exceptions to those principles apply. The Respondent submits that in the current circumstances, significant weight should be given to these considerations against disclosure.

   50. With respect to the clause 3(g) consideration against disclosure, the Respondent notes that disclosure of the withheld information is disclosure to the world. Once it is disclosed, the Respondent is unable to impose any restriction on the use of the information. The withheld information includes information with respect to the relationships of the parents and relationships of others.

   51. With respect to the photos, the Respondent submits that in the circumstances where allegations of sexual abuse have been made, it is not in the interests of the children if the Applicant were to have their photographs.

   52. With respect to the name of the photographer, the Respondent submits that the Applicant wants to be able to approach the photographer to get a copy of the photos. The Respondent submits that in the circumstances the disclosure of the name of the photographer would make the decision on the release of the photographs obsolete.

   53. With respect to the correspondence held by the School, the Respondent submits that this information is deeply confidential.

   54. With respect to the school reports, the Respondent submits that the reports contain information about the children’s movements. Further, it is not in the interests of the children if the Applicant were to have access to that information.

The Applicant’s case.

55. The Applicant relies on his own evidence. He also provided written and oral submissions.

56. He is the father of Child 1 and Child 2. He does not dispute that he is the subject of the AVO. The AVO is in place until November 2025.

57. He notes that in February 2023, the Family and Federal Court issued orders and that those orders included order 9 that is set out above. He argued that the Court intended that he was to be able to obtain copies of all school reports, newsletters, school photographs, behaviour cards and parental communications. He also argued that a new family law order was put in place in September 2023, but that order did not change order 9.

58. His position is that this is a consideration in favour of release because the Court intended that he should be able to access the withheld information.

59. He stated that in February 2024 the school confirmed that the children were enrolled at the school. In June 2024, he emailed the school asking for the school photos, report cards and emails regarding the children. He was given the children's report cards and instructed to make a GIPA request to get the children's school photos. He followed that instruction and made the access application. He was given the school reports, but all other requested information was denied. He contends that the requests were within the scope of the Court orders that were in place at the time of the request.

60. The Applicant stated that he believes that the Respondent has made a bias assessment of him after speaking with the mother. He was advised that the Respondent had told the mother that he had been harassing the School about gaining access to the children's school reports, photos and records. The Applicant contends that the records that he requested are within the scope of the February 2023 Court orders and therefore they should be released.

61. He stated that he has listened to a recording of an interview with the children conducted by police, and that the police decided not to bring charges against him.

62. He is aware of allegations of sexual assault and the impact on the children. He said that the allegations were frivolous and biased for use in family law proceedings. He has read the affidavits lodged in the Court. He says that despite the allegations, the mother is nevertheless not concerned about him having access to photos of the children.

63. He insisted that the children have no reason to fear what might happen in the future. If they are not told of the release of information they will have no fear. He said that he is not following the children or going to the school and that there is no harm that could come to the children from disclosing the information he is seeking. He stated that he just wants to know how the children are going.

64. He agrees that the Family Law matter resumed in January 2025. He also does not dispute that on that occasion the Court made new orders that denied him contact with the children or that the new orders removed the February 2023 order 9.

65. Nevertheless, he contends that the overriding public interest lies in a father obtaining the requested information, in circumstances where a Court has previously ordered that he is allowed to have the information.

66. He further requested an order that the Respondent is to reimburse him for the money he has spent on attempting to obtain the requested information which was denied. That is, the GIPA application fee of $30, a further $40 for an internal review and $124 on the NCAT application.

Consideration

67. As noted, section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified. The Respondent relies on the public interest considerations against disclosure in clauses 3(a), 3(b), and 3(g) of the table to section 14 of the GIPA Act. Each element of a consideration against disclosure must be satisfied.

68. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.

69. The presumption in favour of disclosure must prevail unless the Respondent is able to satisfy the Tribunal that there is an overriding public interest against disclosure.

70. As noted by the Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group, a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting an opinion. Prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

71. The Respondent has provided submissions, and Ms Pendergast has provided evidence in relation to the asserted public interest considerations against disclosure of the withheld information.

72. As noted above, clause 3 of the table to section 14 of the GIPA Act relevantly provides:

3 Individual rights, judicial processes and natural justice

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

Reasonable expectation

73. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at paragraph [61].

74. It is only necessary that disclosure of the information "could reasonably be expected" to have the effect identified. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at paragraph [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at paragraph [41] and Leech v Sydney Water Corporation [2010] NSWADT 298 at paragraph [25].

75. An expectation that is irrational, absurd, or ridiculous is not a reasonable expectation: Transport for NSW v Searle [2018] NSWCATAP 93 (“Searle”) at paragraph [68].

76. There must be more than a mere possibility, risk or chance of the effect occurring: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at paragraph [22].

77. Whilst a very broad value judgment is required to be made it is not one to be made in a vacuum. It is a 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 section 15 of the GIPA Act: Searle at paragraph [104]

73. The Appeal Panel in Searle stated at paragraph [68]

(a) The “could reasonably be expected” test

...

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

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

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

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

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

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

   79. There must be 'real and substantial grounds for the opinion that disclosure could reasonably be expected to have one of the identified effects. In addition, that opinion must be based on some probative evidence': Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at paragraph [46].

   80. When considering the evidence on which it is asserted that disclosure could reasonably be expected to have a particular effect, prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses: Newcastle City Council v Newcastle East Residents Action Group Inc at paragraphs [58] - [59].

   81. Consideration of the content and context of the information in question may satisfy the 'could reasonably be expected' standard, and separate 'factual' evidence as to the likely effect of disclosure of information is not necessarily required: Searle at paragraphs [61] - [65].

   82. The Appeal Panel noted at paragraph [64]:

The preparedness of a court or a Tribunal to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information is reflected in the decisions in Commonwealth v Northern Land Council (1992) 176 CLR 604 at 615; Attorney – General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] – [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74].

83. The Tribunal's decision must take into account the public interest considerations advanced to the Tribunal both by the Applicant for disclosure and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations for and against disclosure and then weigh and balance those various competing public interest considerations: Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at paragraph [21].

Personal information

84. Clauses 3(a) and (b) respectively provide that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal an individual’s personal information or contravene an information protection principle under the PPIP Act and/or the HRIP Act. The definition of personal information is the same in the GIPA Act, PPIP Act and the HRIP Act.

85. “Personal information” is defined in clause 4(1) of Schedule 4 to the GIPA Act to be “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion”. Clause 1 of Schedule 4 provides that to “reveal” information means to “disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)”.

86. In DRP v Orange City Council [2020] NSWCATAD 220, Senior Member Mulvey observed:

1. The definition of 'personal information' is very broad (AIN v Medical Council of New South Wales [2017] NSWCATAP 23 at [112]).

2. In Office of Finance and Services v APV & APW [2014] NSWCATAP 88 at [4], the Appeal Panel found that the words 'whose identity is apparent or can be reasonably ascertained from the information or opinion' do not mean that the individual's identity must be apparent or reasonably ascertainable 'solely from the information or opinion'. The Tribunal found that '[d]epending on the circumstances, other information may be consulted in order to ascertain the identity of the person concerned.' In that case, the applicants' identity could be ascertained from the information or opinion, together with information on a website controlled by the agency.

3. The Full Federal Court in Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 found at [63] in applying the definition of 'personal information' in the Privacy Act 1988 (Cth):

   'The words 'about an individual' direct attention to the need for the individual to be a subject matter of the information or opinion. This requirement might not be difficult to satisfy. Information and opinions can have multiple subject matters. Further, on the assumption that the information refers to the totality of the information requested, then even if a single piece of information is not 'about an individual' it might be about the individual when combined with other information. However, in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual. This will require an evaluative conclusion, depending upon the facts of any individual case, just as a determination of whether the identity can reasonably be ascertained will require an evaluative conclusion.'

4. The Supreme Court of New South Wales Court of Appeal found in Turnbull v Strange [2018] NSWCA 157

   'The phrase 'about an individual' provides an essential qualification of the subject matter of the definition, namely 'information or an opinion'. It may be that the content of a telephone conversation, including statements made by one party, will constitute 'opinions' about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify 'information' about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time. It is unlikely that the whole of the records apparently sought by the subpoena would constitute 'personal information' in relation to the deceased. The importance of giving weight to information or an opinion 'about' an individual was explained in relation to the equivalent, Commonwealth legislation in Privacy Commissioner v Telstra Corporation Limited.' [Citation omitted]

5. The Administrative Decisions Tribunal found that the mobile, home and work telephone numbers, and email addresses of an objector to a prospective development application was personal information (see Donnellan v Ku-ring-gai Council (2013) NSWADT 115 (at [39]-[43]). However, not all of the information contained in emails by objectors to the agency is their personal information. Where information comprised expressions of opinion, it was opinions about the development application and not about an individual. The fact that information was sent from the objector's email addresses did not make the information personal information.

   87. As noted, the requested information has been provided to the Tribunal on a confidential basis. I have viewed that material and I accept that the requested information is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information. I am satisfied that release of the information would reveal the names, contact details, health and other personal information of the children and the mother.

   88. As such, the information requested is “personal information” as defined in clause 4(1) of Schedule 4 to the GIPA Act

   89. I agree with the Respondent that the fact that some of the information about the children may be known to the Applicant does not affect whether release of the information under the GIPA Act would reveal their personal information. The requested information has not been disclosed to the general public.

   90. Having formed the view that the requested information is personal information for the purposes of clause 3 of the table to section 14 of the GIPA Act, I must consider whether clauses 3(a) and 3(b) apply.

   91. Clause 3(a) simply requires that disclosure of the information could reasonably be expected to reveal an individual’s personal information. The personal information would be revealed if it has not already been publicly disclosed. In the present situation I am satisfied that the information has not already been publicly disclosed.

   92. With respect to clause 3(b) of the table to section 14, I am satisfied that the information was provided to the Respondent for specific purposes and that providing access under the GIPA Act is not in keeping with the purpose for which the information was collected. That being the case, I agree with the Respondent that disclosure of this information could reasonably be expected to contravene the disclosure information protection principle in section 18 of the PPIP Act or HPP 11 of the HRIP Act.

   93. I must consider whether clauses 3(a) and 3(b) of the table to section 14 apply in the circumstances of this matter.

   94. In balancing the relevant public interest considerations, I have considered the factors in favour of release, in particular I have considered that most of the information is about the Applicant’s children and the information may assist the Applicant with possible future legal matters. These are factors in favour of release that should be given reasonable weight.

   95. The Applicant stated that he just wants to know how the children are going. That is a consideration in favour of release of the information that should be given some weight.

   96. The Respondent does not dispute the fact that the Applicant is the father of the children but submits that it does not follow from that relationship that he is aware of the information that is contained in the withheld material. If some of the information was disclosed in the family law proceedings, the Applicant could have information about that disclosure. In the circumstances this should be given little weight.

   97. The Respondent notes that disclosure of the information is not subject to restrictions. In effect, it is disclosure to the world. There can be no guarantee that the children would no find out that the information was released. It submits that it would be traumatic for the children if they were to become aware that their information was disclosed in response to an access application under the GIPA Act.

   98. The Respondent also notes that the mother did not agree to disclosure of the information.

   99. The Respondent contends that no weight can be given to the fact that the Police did not bring charges against the Applicant. The roles of the Tribunal and the Police are different and the legal standards that apply in criminal matters and GIPA matters are also different.

   100. I agree with the Respondent in regard to these issues.

   101. The Respondent has raised a number of considerations against disclosure of the information. These include the fact of the Court order and the AVO which deny the Applicant any contact with the children; the mother has objected to release of the withheld information; the withheld information includes information with respect to the relationships of the parents and relationships of others; allegations of sexual abuse have been made; the correspondence held by the school contains information that is deeply confidential; and the school reports contain information about the children’s movements.

   102. In my view, each of those considerations should be given significant weight.

   103. I do not consider weight should be given to the fact that a previous Court order may have permitted the Applicant to approach the school to request access the information. The Tribunal is to decide the matter on the basis of material that is available at the time of its decision. As has been noted, the Court determined to remove that order so the Applicant no longer has any benefit that may have resulted from the order when it was in place.

   104. As noted, the Applicant is the father of the children, and states that he is therefore aware of a lot of their personal information. He is aware of allegations of sexual assault and the impact on the children. He insisted that children have no reason to fear from giving him access to the information he is seeking. In light of the existing Court orders, I do not consider that weight should be given to these assertions without further evidence to support them.

   105. In my view, when the applicable considerations are weighed, greater weight is to be given to the interests of the children. I am satisfied that the disclosure of the personal information would not be in the best interest of those children because the release of the information may have a serious negative impact on their general wellbeing and learning.

   106. I agreed with the Respondent that there is an overriding public interest against disclosure of the personal information and have decided that the information should not be disclosed to the Applicant.

   107. With respect to the request for details of the company that was hired to take school photos, I note that the Applicant is seeking information in the circumstances where the Court made orders that denied him contact with the children. The release of the name of the company that was hired to take school photos would allow the Applicant another avenue to seek access to the information that has been denied under the GIPA Act. That could potentially result in the Applicant obtaining photos of all children in the school, including Child 1 and Child 2. In that sense, I am satisfied that the disclosure of the information could reasonably be expected to disclose personal information about those children in a generic sense.

Clause 3(g)

108. Clause 3(g) of the table to section 14 provides that there is a public interest consideration against disclosure of information if the disclosure of personal information about a child would not be in the best interests of the child to have disclosed.

109. The Applicant has requested the name of the company that was hired to take school photos of the 2024 school year. Each of the elements of clause 3(g) must be considered. It is necessary to consider whether the information is “personal information about a child.

110. In EHW v Secretary, Department of Education [2022] NSWCATAD 140, Senior Member Gracie stated at paragraphs [169] – [170]:

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

2. One factor that is to be given significant weight is a child's privacy rights, including in relation to "aspects of their conduct at school and observations about their parents' relationship breakdown”: Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 at [67] ...

   111. In Medlyn v Commissioner of Police [2020] NSWCATAD 125 Senior Member Higgins stated at paragraphs [114] - [115]

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

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

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

1. In my opinion, the phrase ‘in the interest of the child’ is used in a generic sense (i.e. the individual rights of the child) and not used in the context of the child to which the information relates.

2. On this basis, I am also satisfied that this public interest consideration against disclosure applies even though at the time consideration is given to whether the information should be disclosed, the child about whom the personal information relates is no longer a child. The fact the person is no longer a child is nevertheless a factor to be taken into account in balancing where the competing public interest lays.

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

   112. The Applicant's motive in making the application for information is a factor that may be considered under section 55(1)(b) of the GIPA Act. In the present matter, the Applicant has stated that he is seeking the withheld information so that he can know how his children are going. That is a consideration in favour of release of the information that should be given some weight.

   113. In my view it can be assumed that he is seeking the details of the photographer for this reason and that he would be likely to approach the photographer and seek to obtain school photos. In that context I am satisfied that the information that he is seeking is information about a child.

   114. The Respondent contends that disclosure of the information that would not be in the best interests of the children concerned. It submits that where allegations of sexual abuse have been made, it is not in the interests of the children if the Applicant were to have their photographs. The disclosure of the name of the company would allow the Applicant another avenue to seek access to the photos. In my view, that is a public interest against disclosure and should be given significant weight.

   115. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Senior Member Hamilton stated at paragraph [127]:

“It is difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA Act application, and I consider it impossible to conceive of such circumstances in relation to an [Anti-Social Extremism Behaviour] incident. The risk of harm to the interests of a child are obvious”.

116. In the present matter, I agree with that view.

Conclusion

117. The Tribunal’s role is to balance the public interest considerations in favour of release of the requested information and the public interest considerations against the release. As discussed above, it is my view that greater weight should be given to the public interest considerations against disclosure of the withheld information than the considerations in favour of disclosure.

118. In these circumstances, it is my view that the respondent has made the correct and preferable decision. It should therefore be affirmed.

Order

The decision under review is affirmed.

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

Registrar

Decision last updated: 16 June 2025