Jones v Secretary, Department of Education

[2025] NSWCATAD 263

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jones v Secretary, Department of Education [2025] NSWCATAD 263

Hearing dates:

29 July 2025

Date of orders:

27 October 2025

Decision date:

27 October 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

(1) The decision of the Respondent of 30 May 2025 is affirmed.

(2) The decision of the Respondent of 26 March 2025 is varied so as to provide the Applicant access to the information as set out at [74] and [109] of this decision. The Respondent is to provide the Applicant access to this information within 28 days of this decision.

(3) The decision of the Respondent of 26 March 2025 is otherwise affirmed.

(4) Pursuant to ss 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of, and disclosure to the Applicant of, the confidential material is prohibited.

(5) Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the transcript and recording of the confidential hearing is not to be published or disclosed to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW – administrative review –Government information – parent seeking access to their child’s student file - reasonable searches – revealing personal information of other persons including children – disclosure of psychological testing material – disclosure of internal correspondence - responsible and effective government and affecting the functions of the agency - balancing competing public interest factors in favour of and against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13

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

CLT v Secretary, Department of Education [2022] NSWCATAD 34

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

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

Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606

FNJ v Commissioner of Police, NSW Police Force [2022] NSWCATAD 130

GU v Commissioner, Department of Corrective Services [2003] NSWADT 176

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Klaric v Commissioner of Police [2020] NSWCATAP 153

Learmouth v Secretary, Department of Education [2020] NSWCATAD 109

Mansfield v Department of Family and Community Services [2014] NSWCATAD 43,

Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34

Medlyn v Commissioner of Police [2020] NSWCATAD 125

Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187

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

Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101

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

Taylor v Destination NSW [2017] NSWCATAD 272

WL v Randwick City Council (GD) [2007] NSWADTAP 58

Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173

Texts Cited:

None

Category:

Principal judgment

Parties:

Nicole Jones (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Applicant (Self-Represented)

Department of Education (Respondent)

File Number(s):

2025/00110660
2025/00110645

Publication restriction:

1. Pursuant to ss 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of, and disclosure to the Applicant of, the confidential material is prohibited.
2. Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the transcript and recording of the confidential hearing is not to be published or disclosed to the Applicant or the public.

REASONS FOR DECISION

Tribunal’s Decision

1. On 21 May 2024, the Applicant made an access application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to the Respondent for her child’s “entire student file”. The Applicant sought access to these documents to support a disability discrimination complaint and a privacy complaint she intends to make against the Respondent. The Respondent refused access to some information saying either that it does not hold the information or that there is an overriding public interest against disclosure.

2. The Tribunal has decided to affirm the decision that certain documents are not held by the Respondent because the information was not located despite reasonable searches being conducted. After considering the public interest considerations for and against disclosure, the Tribunal has decided to vary the decision so as to provide the Applicant access to further information.

Overview

3. The parties agreed that the application for access to information be split into two applications, with the first application dealing with the first 500 pages of records.

4. On 14 May 2024, the Respondent decided to release the information in 524 pages of records in response to the first application. On 25 June 2024, the Respondent decided to release 505 pages of records in response to the second application.

5. On 11 July 2024, the Applicant applied for an external review of both decisions to the Information Commissioner. On 8 January 2025, the Information Commissioner, amongst other matters, completed the review and:

1. was not satisfied that the Respondent had conducted reasonable searches given the lack of information that the Respondent had provided about the searches undertaken;

2. concluded that the Respondent’s implied decision, that information was not held, was not justified; and

3. recommended that the Respondent conduct an internal review.

6. On 20 March 2025, the Applicant filed administrative review applications for both decisions, as the parties had not reached agreement to extend the time for the internal review.

7. On 26 March 2025, the Respondent completed the internal review of both decisions. The internal review resulted in providing the Applicant with access to an additional 10 pages, and otherwise affirmed both decisions, including the implied decision that no further information was held by the Department.

8. On 22 April 2025, the Tribunal made an order that both applications (2025/00110660 and 2025/00110645) be dealt with together.

9. On 1 May 2025, the Tribunal ordered that the Applicant provide a list of documents that the Applicant contends are held by the Respondent but not identified or located by the Respondent. On 30 May 2025, the Respondent made a further decision after receiving the Applicant’s list of seven documents and released an additional four pages to the Applicant.

10. On 29 July 2025, both an open and confidential hearing was held.

11. After the hearing, in accordance with orders the Tribunal had made, the Respondent sought further instructions in relation to the existence of a document claimed not to be held (a 2024 Access Request), which was located. This document was released to the Applicant.

Issues

12. The issue arising from the review of the Respondent’s decision made on 30 May 2025, that the documents identified in the Applicant’s list of 1 May 2025 (the “requested information”) are not held by the Respondent is: Does the Respondent hold the requested information?

13. The issue arising from review of the Respondent’s decision on 26 March 2025 in terms of the remaining redacted or withheld information (“the disputed information”) is: Is there an overriding public interest against disclosure of the disputed information to the Applicant?

Does the Respondent hold the requested information?

Relevant law

14. The Respondent is only obliged to provide access to information it holds when the application is received (GIPA Act, s 53(1)). The Respondent may decide that “the information is not held by the agency” (GIPA Act, s 58(1)(b)). This decision can be reviewed by the Tribunal (GIPA Act, s 80(e)). The burden of establishing that the decision that information is not held is justified, lies on the Respondent (GIPA Act, s 105(1)).

15. The Respondent must undertake “such reasonable searches as may be necessary” to find any of the information sought by the Applicant that is held by the Respondent. Such searches must be conducted “using the most efficient means reasonably available to the agency” (GIPA Act, s 53(2)). This extends to “searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically” (GIPA Act, s 53(3)).

16. The Respondent is not required to search for records in an electronic back up system unless a record has been lost to the agency as a result of having been destroyed, transferred or otherwise dealt with, in contravention of the State Records Act 1998 (NSW) or contrary to the agency’s established record management procedures (GIPA Act, s 53(4)).

17. The Respondent is “not required to undertake any search for information that would require an unreasonable and substantial diversion” of the Respondent’s resources (GIPA Act, s 53(4)).

18. The likelihood of the information existing and being held by an agency should be considered when taking into account the reasonableness of the searches, with the agency being best placed to make this assessment given its familiarity with the type of information it holds and its information management and retrieval systems: Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173, at [37]-[38].

19. The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search: Klaric v Commissioner of Police [2020] NSWCATAP 153, at [33]. However, whether an agency has complied with obligations under s 53 of the GIPA Act (which includes undertaking reasonable searches) is a plainly relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”: Wojciechowska, at [40]-[41].

20. What constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency’s recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187, at [30].

21. As the Tribunal stated in CLT v Secretary, Department of Education [2022] NSWCATAD 34, at [40], s 53 of the GIPA Act imposes a standard of “reasonableness” in relation to the searches required to be undertaken by an agency rather than any absolute or strict standard. Such searches must therefore be logical, sensible, appropriate, and fair but are not required to be extreme or excessive. The reasonableness standard is an objective one. It is what a fair-minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative or belligerent observer.

22. The Appeal Panel confirmed in Wojciechowska, at [44], that 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) of the GIPA Act;

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 (the task of the Tribunal is to decide what the correct and preferable decision is, having regard to any relevant factual material and any applicable law (Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1));

5. affirm, set aside or vary the agency’s decision (ADR Act, s 63(3)).

Relevant evidence and submissions

Applicant’s list of requested information

23. The Applicant’s list of 1 May 2025 identified the following records that she believed are held by the Respondent but which were not identified or located:

1. MultiLit Positive Teaching and Learning – Learning and Behaviour Profile (“assessment material”) and any other related documents including, but not limited to, the Functional Behaviour Assessment and Reinforcement Preferences documents – for the period around February 2023 (“Item 1”).

2. Full application form for any Access Request applications and all supporting documents. Also, any automated emails from the Access Management Utility, and emails or documents relating to the application’s outcome, the amount of funding gained, and how the money was spent – for the period around October to November 2023 (“Item 2”).

3. The minutes and updated Student Profile with the child’s adjustments for the meeting between the Applicant and two named professionals on 22 May 2023 (“Item 3”).

4. Minutes from the 6 March 2023 suspension resolution meeting with a staff member and minutes from the 6 December 2022 and 15 February 2023 meetings with this same staff member (“Item 4”).

5. Emails sent by the Respondent’s staff about the child – for the period from 2020 to 2024 (“Item 5”).

6. Nationally Consistent Collection of Data (NCCD) adjustments submissions supporting documents - for the period from 2020 to 2024 (“Item 6”).

7. Documents missing from the wellbeing/incident records including, but not limited to the child’s 18 August 2022 suspension, 6 December 2023 incident where a caution was given, 13 February 2023 classroom incident and 4 March 2024 incident involving the child’s then science teacher – for the period from August 2022 to March 2024 (“Item 7”).

24. For Item 1, the Respondent states that the assessment material has been withheld (rather than not being held). These documents are therefore considered by the Tribunal below, as to whether access should be granted to the Applicant. The Respondent stated that the Functional Behaviour Assessment and Reinforcement Preferences documents have not been located.

25. For Item 2, it was confirmed in the material filed by the Respondent after the hearing that the Respondent had not submitted an Access Request for the child. An Access Request had commenced but was withdrawn in 2024 and never submitted. After the hearing, the Respondent was able to locate the withdrawn Access Request which was released to the Applicant. The Respondent stated that it can be difficult to sort searches between active and withdrawn Access Requests on Enrolment and registration number (ERN) – the Respondent’s central database used to manage student enrolment. The Respondent stated that additional search steps are required to find a withdrawn Access Request which a regular ERN user would not necessarily be familiar with.

26. Item 3 was located by the Respondent and released to the Applicant on 30 May 2025.

27. For Item 6, the Respondent states that when schools submit the relevant NCCD, they submit a list of student names, but do not submit actual evidence for each student. On 30 May 2025, the Respondent released to the Applicant a record of a class roll of students identified for inclusion in the 2023 NCCD, including the child, with a list of supporting documents. The information about the other students was redacted. The Respondent released these supporting documents to the Applicant, which were not held separately as NCCD “supporting documents”.

28. What therefore remains for the Tribunal to consider is part of Item 1, and Items 4, 5, and 7.

The Respondent’s searches

29. The Respondent understood the Applicant’s request for the child’s student file to include the child’s school and counselling records. As a result, the child’s school was asked to search for "complete school records to include: school reports, attendance records, Sentral records, incident reports, meeting and diary notes, risk assessments and correspondence”. Counselling files were sought separately from the Respondent’s School Counselling Service.

30. The Respondent spent 29 hours in the initial work done in response to the Applicant’s access request as follows:

1. Hardcopy school files – 1 hour

2. School local computer drives and emails – 7 hours

3. School record cards – 16 hours

4. Electronic searches in counselling records – 5 hours

31. The past and current School Principals of the school undertook further searches in February 2025 and March 2025 during the internal review. The Respondent submits that searches cannot be undertaken of the emails of a Principal who had retired, as they cannot be accessed by any other person. The Respondent submits that only emails that were saved by the retired Principal in electronic files can be accessed.

32. In May 2025, the school spent a further 7 hours searching for records identified in the Applicant’s list of 1 May 2025.

33. The Respondent maintains that no records have been identified for part of Item 1 (Functional Behaviour Assessment and Reinforcement Preferences documents) and 4. For Item 7, the Respondent submits that no further records have been identified (in addition to what has been released to, or withheld from, the Applicant). The Respondent submits that these records may not have existed in the first place, or alternatively were not required to be retained in accordance with the school’s usual practices. The Respondent states that not all meetings will have associated meeting minutes taken or recorded.

34. For Item 5, the Respondent conducted searches of all relevant systems including school emails, School Bytes (school management platform) and Sentral (online school management system) to search for emails relating to the child.

35. The Respondent notes that no emails were included in the response to the first application as these records were predominantly comprised of school counselling records. The Respondent states that for school counselling records, all relevant emails are saved by the relevant school counsellor in the specific student’s counselling file with central TRIM (content manager) system, which was searched.

36. The Respondent states that emails were released to the Applicant in response to the second application, which were the records provided by the school. The Applicant did agree to remove from the scope of the application “correspondence and documents that were received by you from […] School and forwarded to relevant staff members within the school”, which removed many emails from the scope of the application.

Tribunal’s findings

37. The Tribunal is satisfied that the Respondent has conducted reasonable searches for these documents because the Respondent searched the relevant locations for Items 4, 5 and 7. The Tribunal has considered the amount of time that has been spent in searching for these items, and the way the searches were conducted, which demonstrate a significant attempt by the Respondent to identify and locate the information sought by the Applicant.

38. Any emails from the retired Principal that fell within Item 5 are not accessible by the Respondent, however reasonable searches were conducted for records of any emails that the retired Principal may have saved in the electronic files.

39. The events in Items 4 and 5 have occurred and there are other records released to the Applicant that relate to these events. As the Applicant submits, good record keeping practice would require minutes of formal meetings to be taken and incidents to be recorded, however there is no corroborative evidence that minutes were actually taken of these meetings or that the incidents referred to were the subject of a formal incident report. While the Respondent does not concede that poor record keeping is an issue, the fact that there may be failures in an agency’s record keeping processes does not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5, at [15].

37. The Tribunal is not satisfied that it is likely that these records exist. Given the searches that have been conducted, it is not likely that the information falling within Items 4, 5 and 7 exist.

38. The Applicant submitted that the Applicant is required to search for these records in an electronic back up system. The Tribunal, however, is not of the view that the Respondent is required to do this because there is no evidence that the information has been lost as a result of having been destroyed, transferred or otherwise dealt with in accordance with the State Records Act 1998 or contrary to the agency’s established record management procedures (GIPA Act, s 53(4)).

Conclusion

42. The Respondent has conducted reasonable searches for the requested information in accordance with its obligations under s 53 of the GIPA Act. The decision that the Respondent does not hold the requested information is therefore affirmed.

Is there an overriding public interest against disclosure of the disputed information to the Applicant?

43. The disputed information has been dealt with by the Tribunal in two parts:

1. personal information about third parties, including children; and

2. assessment material and correspondence concerning the management of school issues.

Personal information about third parties, including children

Relevant law

Legally enforceable right to access unless overriding public interest against disclosure

44. There is a general public interest in favour of the disclosure of government information (GIPA Act, ss 5, 12(1)). A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).

45. This is consistent with the objects in s 3 of the GIPA Act that support maintaining and advancing a system of responsible and representative democratic Government that is open, accountable, fair and effective.

46. The Note to s 12 of the GIPA Act provides examples of public interest considerations in favour of disclosure of information:

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

2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

3. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

4. The information is personal information of the person to whom it is to be disclosed.

5. Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

47. Section 14 of the GIPA Act contains a Table with seven categories (“T1” to “T7”) which includes the only considerations (apart from the conclusive presumptions that there is an overriding public interest against disclosure included in Schedule 1 of the GIPA Act) that may be taken into account under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

48. Personal factors can be considered when determining whether there is an overriding public interest against disclosure or alternatively as factors in favour of providing the applicant with access to the information (GIPA Act, s 55):

1. the applicant’s identity and relationship with any other person;

2. the applicant’s motives for making the access application;

3. any other factors particular to the applicant.

49. In this case, the Respondent relies on considerations in T1. Personal factors cannot be used as factors against providing access on the basis of the considerations in T1 (Responsible and effective government) (GIPA Act, s 55(3)).

50. Section 15 of the GIPA Act provides that a determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

1. Agencies must exercise their functions so as to promote the object of the GIPA Act.

2. Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

3. The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

4. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

5. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Public interest against disclosure of personal information

51. There is a public interest consideration against disclosure if the disclosure of the information could reasonably be expected to have one or more of the following effects (relevant to this issue):

1. Reveal an individual’s personal information (T3(a)).

2. Contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA) (T3(b)).

3. In the case of the disclosure of personal information about a child – it would not be in the best interests of the child to have the information disclosed (T3(g)).

52. Clause 4 of Schedule 4 of the GIPA Act defines “personal information” as “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.” Personal information does not include information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions (GIPA Act, Sch 4, cl 4(3)(b)).

53. Section 18 of PPIPA states that 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:

1. 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

2. the individual concerned is reasonably likely to have been aware, or has been made aware, that information of that kind is usually disclosed to that other person or body, or

3. 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.

54. The ‘essence of disclosure’ is “making known to a person information that the person to whom the disclosure is made did not previously know”: Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127].

55. An identity can be reasonably ascertained even if the person’s name is not included within the record. Documents which themselves do not contain any obvious features identifying an individual may take on the quality by virtue of the context to which they belong: WL v Randwick City Council (GD) [2007] NSWADTAP 58, at [15]. A person’s handwriting can constitute personal information as it can communicate knowledge about that person including the likely identity of the author: Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34, at [85].

56. There is a distinction to be drawn between information relating to a public servant’s personal affairs and information relating to the performance of his or her public duties. If what is disclosed is no more than the identity of the officers and employees of the agency performing their public duties, then there would appear to be nothing personal to the officers concerned: Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606, at 625.

57. Clause 3(g) of the Table in s 14 of the GIPA Act 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. 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: Medlyn v Commissioner of Police [2020] NSWCATAD 125, at [115]-[116].

Balancing the public interest considerations

58. The approach to be adopted by the Tribunal in the task of deciding the correct and preferable decision, is the two-step process set out in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24]–[25]. Unless a conclusive presumption is relied on (which is not so in this matter), the Tribunal is to consider the public interest considerations in favour of disclosure (GIPA Act, s 13) and the public interest considerations against disclosure (GIPA Act, s 14) and determine where the balance lies between these competing public interests.

59. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure, but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272, at [17].

60. Balancing the competing public interest considerations is “a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation”: Hurst v Wagga Wagga City Council [2011] NSWADT 307,at [70].

Consultation with persons about releasing their personal information

61. The Respondent is to “take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application” (GIPA Act, s 54(1)). This requirement only applies to information that requires consultation, which in this case is personal information about a person (GIPA Act, s 54(2)(a)). This requirement is only relevant if the Respondent decides to provide access to information relating to this person: Selby v Commissioner of NSW Police Force [2013] NSWADT 61, at [44]. This is not the case in this matter as the Respondent did not decide to provide access to the relevant personal information about third parties to the Applicant.

Is there personal information about third parties in the disputed information?

62. The schedule of disputed information identifies the pages that the Respondent contends contains personal information about third parties. The Tribunal has reviewed these pages and is satisfied that most of the disputed information does contain personal information about third parties. These records include names and opinions of third parties as well as personal information about other children.

63. The Applicant states that she is not requesting access to names or identifying information about the students, or parents, or third parties (who are not the Respondent’s teachers). The Applicant states that she is requesting details of their incident statements with the names or identifying information excluded. The Tribunal has therefore only considered the disputed information which falls within the scope of what the Applicant is seeking access to.

64. As set out below, the Tribunal has decided to give the Applicant access to some information because it is not personal information.

Public interest considerations in favour of disclosure

65. The Applicant relies on the general public interest in favour of disclosure of government information.

66. The Applicant submits that the information she seeks includes personal information about her children, herself and her husband, and that because some of the information that the Respondent has collected about them is untrue, inaccurate or misleading, and she seeks access to their information so that she can request corrections and make a complaint. The Applicant having access to information which is her and her family’s personal information is a public interest consideration in favour of disclosure.

67. The Applicant also submits that the Respondent should release to her information that reveals nothing more than the fact that a teacher (or school staff) were engaged in the exercise of public functions. As noted above, this information is excluded from the definition of “personal information” in the GIPA Act (GIPA Act, Sch 4, cl 4(3)(b)).

68. The Applicant states that she requires the information to make complaints as the information can also substantiate that the teachers at the school have engaged in misconduct. The Applicant submits that the school has made false claims about her child’s behaviour at school, and that her child is being ill-treated by teachers at the school. If the disclosure of the information could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct, then this is a public interest consideration in favour of disclosure.

Public interest considerations against disclosure

69. The Respondent submits that the disputed information in this case contains personal information, including personal information of staff and other students. The Respondent submits that disclosure would contravene s 18 of PPIPA, as it would be without consent for a purpose other than for which the information was collected. The Respondent submits that none of the exceptions in s 18 of PPIPA apply, which would permit disclosure. These are public interest considerations against disclosure.

70. The Respondent also submits that it is not in the best interest of the third-party children for their personal information to be released to the Applicant as it is likely to have a negative impact on those student’s learning and their relationships at school. This is also a public interest consideration against disclosure that carries considerable weight.

Balancing exercise

Information which Applicant is to be provided access

71. As set out in the table below, the Tribunal has decided to provide the Applicant with access to information that is her own personal information or personal information about the child and her family. This information is not enmeshed with the personal information of other third parties, which would weigh against disclosure. Providing the Applicant with her and her family’s personal information is a factor deserving considerable weight.

72. On the evidence before the Tribunal, the Tribunal is not satisfied that disclosure of the disputed information could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct as alleged by the Applicant. In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [136], the Appeal Panel stated that it is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that disclosure could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. The Appeal Panel stated that, as expressed, this consideration carries an imputation in relation to the agency’s conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. In this case, the Tribunal is not satisfied that there is a reasonable basis to support the Applicant’s submission that the Respondent has made false claims about her child’s behaviour at school or that the Respondent has ill-treated her child.

73. However, enhancing government accountability is a recognised public interest in favour of disclosure. The Tribunal has placed significant weight on this consideration because it is important for the Applicant to understand how the school has responded to incidents involving her child, and what information the Respondent has taken into account when making decisions in respect of her child. According to s 15(c) of the GIPA Act, the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant in weighing the public interest considerations and must not be taken into account.

74. The Tribunal has decided to provide the Applicant access to the information set out in the tables below, because the public interest considerations in favour of disclosure, namely providing the Applicant with access to her and her family’s personal information and enhancing government accountability, are not outweighed by any public interest consideration against disclosure. There is also information the Applicant should be provided access to, as it is not personal information of a third party (with some documents only containing information that relates to the performance of the Respondent staff’s public duties) and there is no relevant public interest against disclosure:

1. First bundle of documents (524 pages):

Page number	Description	Summary reasons for providing access
368	Witness statement	The redactions do not contain personal information or information that would identify any individual, but are observations by the witness.
388	Email dated 19 August 2022	The information in this email has already been disclosed to the Applicant. This information relates to the performance of the employee’s public duties.
506-507	Email dated 12 May 2023	The information in this email has already been disclosed to the Applicant. This information relates to the performance of the employee’s public duties.

2. Second bundle of documents (505 pages):

Page number	Description	Summary reasons for providing access
15	Email correspondence dated 17 February 2022 - Fourth redaction only	This is not personal information. This information relates to the performance of the employee’s public duties. There are no overriding considerations against disclosure. The fact that this information may cause embarrassment or a loss of confidence in the Respondent is irrelevant.
25	Email correspondence dated 18 March 2024 – third redaction only	The names of the third parties is personal information and should not be released (can remain redacted). The rest of the information should be released because it is not personal information and there are no overriding considerations against disclosure.
405	Counsellor’s case notes dated 12 September 2023 – first redaction only	This is information that the Applicant has herself provided to the counsellor and is her own personal information. There are no overriding considerations against disclosure.
444	Wellbeing meeting note dated 13 September 2022 attached to counsellor’s note dated 8 November 2022 – third redaction only.	This is an observation by the author in the performance of the employee’s public duties and is not personal information or information that would identify an individual. There are no overriding considerations against disclosure.
468	Document titled “incident 18 August 2022” – fourth redaction only	This is a statement that the child has made and is his personal information, not personal information about a third party. There are no overriding considerations against disclosure.
475	Counsellor’s case notes dated 28 June 2022	The names of the third parties (apart from the Applicant’s family) should be redacted, however all other information in the redactions is to be disclosed to the Applicant as this is the Applicant’s and her family’s personal information. There is no other personal information. This information relates to the performance of the employee’s public duties. There are no overriding considerations against disclosure.
489, 499	Document titled “File attached to case 00533128”, same document included twice in this bundle	The last redaction on this page should not be disclosed as this is personal information about another child. As for the rest of the redactions, only the names of the third parties (not including references to the teacher) should be redacted. This information relates to the performance of the employee’s public duties. The fact that this information may cause embarrassment or a loss of confidence in the Respondent is irrelevant. There is other information of a similar nature about what occurred that is unredacted in this document. There are no overriding considerations against disclosure.
490, 500	Document titled “File attached to case 00533128” – same document included twice in this bundle	This is an observation by the author of the document in the performance of the employee’s public duties and is not personal information or information that would identify an individual. There are no overriding considerations against disclosure.

Information which Applicant is refused access

75. The Tribunal has decided to refuse to provide the Applicant with access to the rest of the disputed material that falls under the category of personal information about third parties.

76. In relation to the handwritten statements of children, the Tribunal is satisfied that this is personal information, and it is not possible to redact these statements to protect the children’s identities. The Tribunal is not satisfied that it is in the best interests of the third-party children to provide any of their statements to the Applicant, and that disclosure of this personal information about third-party children is a public interest consideration against disclosure which has significant weight.

77. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [106] the Tribunal stated the disclosure of information that relates to children, either as a victim, informant or young person of interest in relation to an incident in a school, would not be in the best interests of the child, because they may still currently attend the school and the information may enable the person to be identified as being involved in the incident, which is likely to have a negative impact on the students' learning and their relationships at school. Further, at [127], the Tribunal noted that it was 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 application.

78. In Mansfield v Department of Family and Community Services [2014] NSWCATAD 43, at [67], the Tribunal found that significant weight should attach to privacy issues in respect of the children’s “conduct at school”.

79. In FNJ v Commissioner of Police, NSW Police Force [2022] NSWCATAD 130, at [109], the Tribunal concluded that it was not in the best interests of the child to disclose personal information about that child which an adult had provided in confidence, or that the child had provided in confidence, for the purpose of an investigation. In that case, the Tribunal found that disclosing information about a child that has been provided to Police or an informant in confidence would diminish the trust that individuals (including a child) and the community have in the Police (who conducted the investigation) and make them reluctant to engage with the Police in future concerning issues involving the safety and wellbeing of children.

80. The Tribunal gives the public interest consideration in favour of disclosure, namely enhancing Government accountability, less weight than the public interest consideration against disclosing personal information about third-party children. This is because the Tribunal accepts that this information was given in confidence while investigations of incidents were conducted, and it is likely to have a negative impact on those students if the Applicant (and her family, including the child who attends school with these children) is given this information. Not only could it be reasonably expected that this may this diminish the trust that the children have in the school staff who they provided information to, but it could also cause them to be reluctant to give information about incidents and other matters that are investigated by school in the future, which would impact on the school being able to properly respond to incidents and exercise its functions. The Tribunal accepts that the disclosure of the children’s personal information may also impact on these children’s learning and relationships at school. This is not in the best interests of these children and the Tribunal gives this public interest consideration against disclosure significant weight.

81. The Tribunal is therefore of the view that there is an overriding public interest against disclosure to the Applicant of the witness statements by third-party children, and refuses to provide the Applicant access to this information.

82. The Tribunal has also decided to refuse access to the Applicant of the remainder of the disputed material which constitutes personal information about third parties, including the redacted personal information that is about children other than the written statements. Most of this information contains personal information of third parties that does not fall within the scope of the Tribunal’s review given that the Applicant is not seeking access to names or identifying information about the students, or parents, or third parties (that are not the staff of the Respondent).

83. The Tribunal is satisfied that the rest of the disputed information in this category reveals personal information about a third party (including children), that is not a school employee exercising their public duties. The Tribunal is satisfied that the disclosure of this information to the Applicant:

1. is not in the best interests of the children to whom it relates; and

2. will breach s 18 of PPIPA because the disclosure is not directly related to the purpose for which the information was collected, the individual concerned would likely object to the disclosure, and the individual concerned was not likely to have been aware that the information would be disclosed to the Applicant.

84. The Tribunal is therefore of the view that there is an overriding public interest against disclosure of the remainder of the disputed material which constitutes personal information of third parties.

Assessment material and correspondence concerning the management of school issues

Relevant law

85. The relevant law in relation to balancing the public interest considerations is set out at [44] - [61] above. Further to the determination of this Issue, public interest considerations against disclosure if the disclosure of the information could reasonably be expected to affect responsible and effective government, which are relevant to this matter and relied on by the Respondent, are as follows:

1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (T1(d)). In deciding whether confidentiality attaches to records, the decided cases often look at the policies and practices of the agency, rather than that of the individual employee: Cameron v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 13, at [62].

2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (T1(e)). The deliberative processes of an agency are its thinking processes, including those by which it seeks internal input and discussions as to possible courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron, at [66].

3. prejudice the effective exercise by an agency of the agency’s function (T1(f)).

4. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (T1(h)).

Is the assessment material subject to copyright restrictions which prevent disclosure to the Applicant?

86. In relation to the assessment material, the Applicant submits that “Terms and Conditions of Sale” which permit the product to be used “for personal education use or use in schools with State/Territory accreditation if in Australia” implies that the assessment material supplied by Multilit to teachers delivering training (Positive Teaching and Learning Courses) can be provided to parents without breaching the copyright restrictions. The Applicant relies on email correspondence between herself and MultiLit where she asked if the “forms provided during the Positive Teaching and Learning Courses can be shared with parents when completed for the child?”. MultiLit responded to the Applicant by stating “the copyright restriction applies to the use of materials for commercial purposes, not how they might be used within a school”.

87. The Applicant included in her material a copy of the first page of the assessment material which is available on the MultiLit website. The Applicant states that this front page (but not the rest of the pages) can be viewed in the MultiLit Positive Teaching and Learning Video on the MultiLit YouTube Channel.

88. The Respondent states that parental consent is not required to complete this educational assessment, and that parents are not part of the process. The Respondent states that the assessment may be used to help teachers to identify strategies to support the student which could then be used in creating student behaviour and learning plans. These plans can then be shared with the parent but not the assessment material itself.

89. The Respondent maintains that the assessment material is copyright protected, and any unauthorised use would be a breach by the Respondent of contractual confidence and the copyright licence, which would prevent the Respondent from using this material in the future.

90. The Tribunal is satisfied that the assessment material is subject to copyright restrictions. However, the Respondent has not provided sufficient evidence for the Tribunal to decide whether the disclosure of this material to the Applicant constitutes an infringement of copyright. However, the copyright restrictions on the material and the possibility of an infringement of copyright have been considered by the Tribunal as factors weighing against the disclosure to the Applicant.

Public interest considerations in favour of disclosure

91. The Applicant relies on the general public interest in favour of disclosure of government information.

92. The Applicant submits that the information she seeks includes personal information about her and her family. In relation to the Respondent’s internal correspondence, the Applicant submits that the school has recorded false private and health information about her, her child and other members of her family without informing her or obtaining her consent. The Applicant submits that accessing this information will enable her to correct information and make a complaint about the conduct. Providing the Applicant with her and her family’s personal information is a public interest consideration in favour of disclosure that has significant weight.

93. In relation to the Respondent’s internal correspondence, the Applicant submits that she requires this information to make complaints as the information can substantiate that the teachers at the school have engaged in misconduct. As noted above, the Tribunal has found that there is no reasonable basis for this public interest consideration for disclosure on the evidence before the Tribunal, however enhancing government accountability is a relevant public interest consideration in favour of disclosure.

94. In respect of the assessment material, the Respondent concedes that, generally, there is a significant public interest for disclosure of this information as it may contribute to the transparency of the Respondent’s processes used to manage student’s education including their assessments. The disclosure of the information that could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public, is a public interest consideration in favour of disclosure.

Public interest considerations against disclosure

95. The Respondent relies on T1(d), T1(f) and T1(h) as public interest considerations against the disclosure to the Applicant of the assessment material.

96. The Respondent submits that providing the Applicant with access to the assessment material will affect the validity of test results and the quality of educational and wellbeing outcomes for students, and therefore undermine one of the Respondent’s main functions, to deliver appropriate and effective teaching and learning for individual students. The Respondent submits that if the confidentiality aspect of these assessments was set aside by disclosing this information to the Applicant, this would prejudice the effective exercise of the Respondent’s functions.

97. In relation to the Respondent’s internal correspondence, the Respondent relies on T1(d), T1(e), T1(f) and T1(h) as public interest considerations against the disclosure to the Applicant of this information.

98. The Respondent submits that the Respondent’s executive officers need to be able to freely discuss discretely and honestly how to best manage and resolve various sensitive issues affecting the operations of the Respondent. The Respondent submits that the release of all correspondence between executive staff may seriously impair the Respondent’s ability to perform its functions relating to school-based issues. The Respondent submits that it has a duty to monitor the health and wellbeing of staff.

99. These are similar submissions that were made by the Respondent in Learmouth v Secretary, Department of Education [2020] NSWCATAD 109, at [100]. In this case, the disputed information included a statement written by a school staff member of a discussion that she had had with the applicant in preparation for a meeting with the applicant that did not proceed. The Tribunal accepted that the staff member had a genuine concern that she feared repercussions from the applicant if the disclosure of her opinions were released. The Tribunal found that disclosure of the whole statement to the applicant could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff.

100. The Respondent submits that if internal correspondence is released, this could reasonably be expected to prejudice future communications when dealing with sensitive school issues, and to release the information would restrict frank and honest communication between staff.

Balancing exercise

Information which Applicant is to be provided access

101. The Tribunal has decided to provide the Applicant with access to information set out in the table below because the public interest considerations in favour of disclosure, namely enhancing government accountability and informing the Applicant of the Respondent’s operations, which the Tribunal gives significant weight, are not outweighed by the public interest considerations related to responsible and effective government which the Respondent has not established in its evidence.

102. In considering the public interest against disclosure in terms of the Respondent’s submissions about the adverse effect on the Respondent’s functions (T1(d), T1(e), T1(f) and T1(h)), the Tribunal has taken into account the Appeal Panel’s statement in Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254, at [59]:

“... when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.”

103. The Respondent did not file any evidence that establishes that in this case there are real and substantial grounds to support an opinion that disclosure to the Applicant of information in the internal correspondence, could reasonably be expected to have the claimed effects on the school. The Respondent did not file any statements by any of the Respondent’s staff who authored records or whose statements were referred to in the disputed information. Apart from making broad submissions, there was no evidence before the Tribunal that providing the Applicant with access to the internal correspondence could reasonably be expected to seriously impair the Respondent’s ability to perform its functions.

104. In relation to T1(d) - the effect of prejudicing the supply of confidential information that facilitates the effective exercise of the agency’s functions, it was not apparent on the face of the records that the information in any of the disputed information in the table below is confidential. The Respondent did not provide any evidence of its policies or procedures to establish that this information is confidential. There was otherwise no evidence filed by the Respondent, such as any statements by the Respondent’s staff, that proves that this information is confidential information. The disputed information mostly consisted of small redactions to parts of records that the Applicant has been given access to. That is, the Applicant is aware of most of what was discussed or noted about the child or herself, however part of the record has been withheld by the Respondent. The Tribunal is not satisfied that the redacted information in these records is confidential information either on the face of the document, by a relevant policy or procedure or by any other evidence.

105. In relation to T1(e) – the effect of prejudicing a deliberative process of government or an agency by revealing a deliberation or consultation conducted, or an opinion, advice or recommendation, the Tribunal is not satisfied that the disputed information is information of deliberative processes or “thinking processes”. This information does not involve staff seeking internal input or holding discussions as to possible courses of action, evaluating the wisdom of them, and the relative benefits and detriments of them.

106. In relation to the Respondent’s submission that staff should be “frank and free” to discuss “sensitive school issues”, the Tribunal is not satisfied that the “frank and free” discussions or case notes that the Respondent seeks to withhold from the Applicant falls into the T1(e) public interest consideration, or that even if they did, that it could be reasonably expected to prejudice a deliberative process of the Respondent. On the contrary, the Tribunal is of the view that providing the Applicant with access to this information may improve the Respondent’s processes by enhancing Government accountability. The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

107. In relation to T1(f) – the effect of prejudicing the effective exercise by an agency of the agency’s functions, as noted above, the Respondent did not file any evidence to establish that in this case, it could reasonably be expected to have this effect. The public interest considerations of enhancing government accountability and informing the Applicant of the Respondent’s operations, are given significant weight, and weigh in favour of disclosure of the disputed information set out in the table below. The mere statement that providing the Applicant with access to this information would prejudice future communications when dealing with sensitive school issues, and restrict frank and honest communication between staff, is insufficient. The Tribunal is of the view that providing the Applicant with access to this information may improve the Respondent’s transparency and honesty with the Applicant in its dealings with the Applicant and her child.

108. In relation to T1(h) – the effect of prejudicing the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results, there is only one document that fall into this category. This is the inspection report dated 23 August 2022, and email dated 19 August 2022. These documents contain minimal information, including no decision or outcome, and it is not evident that the disclosure of these documents could reasonably be expected to have the nominated effect of prejudicing the effective exercise by the respondent of its functions (investigating a school-based incident). The incident did involve the Applicant’s child, and therefore the public interest consideration in favour of disclosing personal information to the Applicant about her child, carries significant weight. There is no personal information about a third party, that the Applicant is not already aware of, that would weigh against the Applicant having access to this information.

103. After balancing the public interests in favour of and against disclosure, the Tribunal has decided that the Applicant should be provided access to the following information:

1. First bundle of documents:

Page number	Description	Reason for providing access
171 - 172	Meeting minutes dated 18 November 2020 – second redaction on page 171 and all redactions on page 172	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information is a record of events and observations of the Applicant and the child.
384-387	Inspection report dated 23 August 2022 and email dated 19 August 2022	The public interest considerations in favour of disclosure are enhancing Government accountability, informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child, and providing the Applicant with her child’s personal information. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. These documents contain minimal information and information known to the Applicant do not contain a decision or outcome. It is not evident that the disclosure of these documents could reasonably be expected to have the nominated effect of prejudicing the effective exercise by the respondent of its functions.

2. Second bundle of documents:

Page number	Description	Reason for providing access
4, 417	Email dated 28 August 2023, same document included twice in this bundle.	The public interest considerations in favour of disclosure are enhancing Government accountability, informing the Applicant of the operations of the Respondent and their practices for dealing with the child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because this information does not appear to be confidential information or a deliberative process, and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions.
52	Counsellor case notes dated 5 December 2023 – last redaction only.	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information is a record of events and conversation in the exercise of public functions.
66	Counsellor case notes dated 13 November 2023.	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information is the Applicant’s and her family’s personal information.
405	Counsellor case notes dated 12 September 2023 – second redaction only.	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information is the Applicant’s and her family’s personal information.
443, 444	Wellbeing meeting note dated 13 September 2022 attached to counsellor’s note dated 8 November 2022 – second and third redaction only on page 443 and second redaction only on page 444.	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information a record of events and observations in the exercise of public functions.
476	Counsellor’s case note dated 27 June 2022 – second redaction only (beginning with “and” and ending in “physically”).	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child (in terms of information that the counsellor relies on to support the child). The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. Some of this information a record of events and observations in the exercise of public functions. This information also includes personal information about the Applicant and the child.
478	Counsellor case note dated 27 June 2022 – first redaction only.	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child (in terms of information that the teacher relies on to support the child). The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. This information is a record of events and observations in the exercise of public functions.
492	Counsellor case note dated 21 June 2022	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child (in terms of information that the counsellor relies on to support the child). The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. This information is an observation in the exercise of public functions.
502	Referrals dated 30 June 2022	The public interest considerations in favour of disclosure are enhancing Government accountability and informing the Applicant of the operations of the Respondent and their practices for dealing with the Applicant and her child. The public interest considerations against disclosure related to responsible and effective government do not override the considerations in favour of disclosure, because the information is not confidential information or a deliberative process and even if it was, there is insufficient evidence that disclosure could reasonably be expected to have the nominated effect of prejudicing the effective exercise of the Respondent’s functions. This information is a record of an observation in the exercise of public functions.

Information which Applicant is refused access

110. The Tribunal is satisfied that the email correspondence dated 14 March 2023 (at pages 21 to 24 of the second bundle of documents), is confidential information that has been provided to the Respondent by a third party, and includes personal information about third-party children. The public interest consideration in favour of disclosure, namely enhancing Government accountability, does not outweigh the public interest considerations against disclosure which are afforded significant weight. That is, prejudicing the supply to the Respondent of confidential information that facilitates the effective exercise of that agency’s functions, and it not being in the best interests of the third-party children for their personal information to be provided to the Applicant. The Tribunal has therefore decided that the Applicant should be refused access to this information.

111. In relation to the assessment material (at pages 105 to 114 of the first bundle of documents), the Respondent submits that the assessment material was administered by a trained teaching professional for use within the school, and was not administered for wider distribution. The Respondent submits that the assessment material is intended for use within the school to assist in creating a positive learning environment for students.

112. In relation to T1(d) – the effect of prejudicing the supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent’s functions, the Tribunal is satisfied that the assessment material is subject to copyright restrictions and that the assessment material is treated confidentially by the Respondent. If disclosed to the Applicant, apart from possibly copyright infringement, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information (GIPA Act, s 15(e)). This means that the Tribunal cannot restrict the Applicant from providing the assessment material to any other person, including her children. The Tribunal is therefore satisfied that disclosure could reasonably be expected to undermine the effectiveness of the Respondent’s ability to confidentially administer tests of students in the future.

113. In relation to T1(f) – the effect of prejudicing the effective exercise by the Respondent of its functions, which includes evaluation of students’ educational and clinical assessments, the Tribunal accepts that it can be reasonably expected that the disclosure of the confidential assessment material (not the test results themselves which can be disclosed) to the Applicant would prejudice the effective exercise of the Respondent’s functions.

114. In relation to T1(h) – the effect of prejudicing the conduct, effectiveness or integrity of testing conducted by or on behalf of an agency by revealing its purpose, conduct or results, the Respondent submits that disclosure of the assessment material to the Applicant may give the Applicant and parents an opportunity to use the materials prior to formal supervised assessments. The Respondent submits that the students that are assessed would then not be answering the questions in a candid manner, as they may be ‘coached’.

115. The case of GU v Commissioner, Department of Corrective Services [2003] NSWADT 176, also involved an applicant seeking access to copies of psychological test material. In that case, the Tribunal refused the applicant access to copies of psychological tests that he undertook to assess his progress after participating in a treatment program for sex offenders. While most of these tests were publicly available, the Tribunal accepted that if they were widely circulated, those who had an opportunity to study the test questions would not answer in an impromptu or spontaneous manner, which would affect the validity of the test results. The Tribunal found at [19] that the public interest considerations against disclosure are that the validity of the tests could reasonably be expected to be compromised and the agency would lose the opportunity to share information with the scientific community about the results of that testing. In addition, the scientific community would be reluctant to share information with the agency if they knew that they could not keep the tests confidential.

116. The Tribunal accepts that in this case, the validity of the testing for the child and potentially other students could reasonably be expected to be compromised if the assessment material was disclosed to the Applicant.

117. The Tribunal is satisfied that the public interest considerations against disclosure in relation to responsible and effective government, as well as possible copyright infringement, which are afforded significant weight, outweighs the public interest considerations in favour of disclosure of providing the Applicant access to her child’s personal information, enhancing Government accountability and providing the Applicant with information about the Respondent’s operations. The Tribunal has therefore decided that the Applicant should be refused access to the assessment material.

Conclusion

118. As the Tribunal has found that the requested information is not held by the Respondent because it is not likely that the information exists and reasonable searches have been conducted by the Respondent. It follows that the correct and preferable decision is that the Respondent’s decision of 30 May 2025 is affirmed.

119. After balancing the public interest considerations for and against disclosure, the Tribunal has decided that the Applicant is to be provided access to certain information as set out in the tables at [74] and [109] of this. The correct and preferable decision is that the decision of the Respondent of 26 March 2025 is accordingly varied. The decision to refuse access to the remainder of the disputed information is affirmed.

120. It is appropriate to make orders which will prohibit the publication and disclosure of the confidential information, as well as publication and disclosure of the transcript and recording of the confidential hearing, to the Applicant.

Order

1. The decision of the Respondent of 30 May 2025 is affirmed.

2. The decision of the Respondent of 26 March 2025 is varied so as to provide the Applicant access to the information as set out at [74] and [109] of this decision. The Respondent is to provide the Applicant access to this information within 28 days of this decision.

3. The decision of the Respondent of 26 March 2025 is otherwise affirmed.

4. Pursuant to ss 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of, and disclosure to the Applicant of, the confidential material is prohibited.

5. Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the transcript and recording of the confidential hearing is not to be published or disclosed to the Applicant or the public.

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

Registrar

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: 27 October 2025