Learmouth v Secretary, Department of Education

[2020] NSWCATAD 109

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Learmouth v Secretary, Department of Education [2020] NSWCATAD 109
Hearing dates:	20 September and 22 October 2019
Date of orders:	21 April 2020
Decision date:	21 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C A Mulvey, Senior Member
Decision:	(1) The statement made on 23 July 2019 and evidence of Jennifer Richardson is not to be disclosed to the applicant or published pursuant to sections 64(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW). (2)   The respondent is to conduct a further search within 28 days in relation to: (a)   records and correspondence to and from Beverley Maunder and Michael Clarke regarding Brookvale Public School football parking fundraiser 18 March 2018 to/from email [email protected], [email protected] and [email protected]. (b)   records relating to application for change of school application for out of area enrolment held by Peta Hanson (Principal, Beacon Hill Public School), Beverley Maunder (Principal, Brookvale PS) and Julie Kennedy (Director, Department of Education). (3)   In all other respects the decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – reasonable searches – disclosure against public interest
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:	AIN v Medical Council (New South Wales) [2013] NSWADT 112 at 155 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 Cianfrano v Premier’s Department [2006] NSWADT 137 Colefax v Department of Education and Communities (No 1) [2013] NSWADT 42 Colefax v Department of Education and Communities (No 2) [2013] NSWADT 130 Commissioner of Police (New South Wales) v Camilleri [2012] NSWADTAP 19 Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 Ferns v Commissioner of Corrective Services (2007) NSWADT 298 Hemeon v Commissioner of Police, New South Wales Police Service (2002) NSWADT 201 Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at 32 Jenkinson v Department of Education and Communities [2013] NSWADT 280; Loussikian v University of Sydney [2018] NSWCATAD 140 McInnes v New South Wales Department of Education and Communities [2013] NSWADT 219; McKinnon v Blacktown City Council [2012] NSWADT 44 Miriani v Commissioner of Police, New South Wales Police Force (2005) NSWADT 187 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health [1985] AATA 201; (1985) 8 ALD 163 Shepherd v Department of Housing Local Government and Planning (1994) 1 QAR 464 Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 Troskie v New South Wales Department of Education and Communities [2014] NSWCATAD 155 Turner v Corrective Services (New South Wales) (2013) NSWADT 39 YG and GG v Minister for Community Services [2002] NSWCA 247 Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49
Category:	Principal judgment
Parties:	Michelle Learmouth (Applicant) Secretary, Department of Education (Respondent)
Representation:	Solicitors: Applicant (Self Represented) S Butler (Respondent)
File Number(s):	2019/00133891
Publication restriction:	The publication and disclosure of the evidence and statement of Jennifer Richardson made 23 July 2019 is prohibited pursuant to sections 64(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

1. Mrs Michelle Learmouth, (the applicant) applied for information from the Secretary, Department of Education (the respondent) under the Government Information (Public Access) Act 2009 (the GIPA Act) on 5 November 2018. The information related to correspondence and communications held by Brookvale Public School and Beacon Hill Public School that relate to the applicant and her children.

2. The applicant is a parent of three students who were students at Brookvale Public School. The children at the time of hearing were being home schooled by the applicant.

Access Application and Original Decision

3. The applicant initially sought access to the following information under the GIPA Act:

1. Any and all correspondence and communications including written reports, statements and audio recordings related to the parent/teacher interview in which Jennifer Richardson, Michelle Learmouth and Jason Learmouth were present on the 21st of March 2018;

2. Any and all correspondence and communications including written reports, statements and audio recordings regarding an interaction between Jennifer Richardson and Michelle Learmouth on 10th August 2018.

3. Any and all correspondence and communications including written reports, statements and audio recordings related to the meeting between Beverly Maunder and Michelle Learmouth discussing Beverley Maunder’s comments about NAPLAN results (made during the P&C meeting on the 12th of September 2017) and the children of Michelle Learmouth and Jason Learmouth.

4. Any and all correspondence and communications between Beverley Maunder and Michael Clarke held by the Department regarding the football parking in 2018 with particular reference to the activities of Michelle Learmouth as the coordinator and/or the running of football parking for the Eels vs Parramatta on the 18th of March.

5. A copy of any Facebook private messages from Jennifer Richardson to Ben McLean, or any other person, referencing photographs posted on Facebook at the beginning of 2018 with Sarah Learmouth and Claire Learmouth’s faces obscured or blurred out.

6. Any and all notes and correspondence made by Jennifer Richardson and/or Beverley Maunder in relationship to meetings held or comments made to any party, regarding Michelle, Jason, Nathan, Sarah or Claire Learmouth between 2015 and 2018, not already referred to above.

4. On 9 November 2018, the applicant was sent a decision notice by the respondent stating that the application was invalid for various reasons.

5. On 30 November 2018, the applicant agreed to amend her application (amended application). The amended application seeks the following information: Any and all correspondence and/or communications including email, informal notes, reports, statements and file notes. With the exception of email, many of these notes are likely to be held at Brookvale Public School.

1. The parent/teacher interview in which Jennifer Richardson, Michelle Learmouth and Jason Learmouth were present on 21 March 2018.

1. records held from parent/teacher meeting on 21 March 2018 - present at meeting Jennifer Richardson, Michelle Learmouth and Jason Learmouth.

2. A conversation between Jennifer Richardson and Michelle Learmouth on 10th August 2018 in the corridor at Brookvale Public School. Including Jennifer Richardson’s statement, Mark Gigli’s statement, notes and minutes from the subsequent meeting regarding this conversation on 15th August 2018. And any other notes relating to his conversation.

1. statements held by Jennifer Richardson and Mark Gigli from 10 August 2018; and

2. records from meeting on 15 August 2018 relating to a conversation on 10 August 2018 in attendance Beverley Maunder and Delphine Annett (Principal Stewart House).

3. An informal meeting between Beverley Maunder and Michelle Learmouth in Beverley Maunder’s office, in September/October 2017, at Brookvale Public School. Conversation included: discussion about the comments Beverley Maunder made regarding NAPLAN results at the P&C meeting on the 12th of September 2017, and the wellbeing and the academic progress of Michelle Learmouth and Jason Learmouth’s children Nathan, Sarah and Claire. No formal minutes were taken.

1. any notes recorded by Beverley Maunder about discussion re Learmouth children after P&C meeting on 12 September including NAPLAN results.

4. Communications between Beverley Maunder (Principal, Brookvale Public School) and Michael Clarke (President, Brookvale Public School P&C), regarding Brookvale Public School football parking fundraising 2018. This with reference to the running of the Brookvale Public School football parking fundraising for the Eels v Parramatta gave on 18th March 2018 of which Michelle Learmouth was coordinator. In particular, an email regarding this fundraising event sent from Beverley Maunder to Michael Clarke’s private email [email protected] and/or the official Brookvale Public School P&C President email address [email protected].

1. records and correspondence to and from Beverley Maunder and Michael Clarke regarding Brookvale Public School football parking fundraiser 18 March 2018 from email [email protected] and [email protected].

5. Communications made by Jennifer Richardson and/or Beverley Maunder regarding Michelle, Jason, Nathan, Sarah or Claire Learmouth to/from:

• each other,

• Mark Gigli (Assistant Principal),

• Rebecca Thompson (Assistant Principal),

• Skye Surrest (Assistant Principal),

• Peta Hanson (Principal, Beacon Hill Public School),

• Delphine Annett (Principal, Stewart House),

• Julie Kennedy (Director, Department of Education),

• Gary Graham (A/Director, Department of Education).

1. records relating to application for change of school application for out of area enrolment held by Peta Hanson (Principal, Beacon Hill Public School), Beverley Maunder (Principal, Brookvale PS) and Julie Kennedy (Director, Department of Education).

6. On 18 December 2018, the respondent determined the applicant’s GIPA application (the original decision).

7. The respondent in its reasons for decision set out that it conducted reasonable searches to determine if the information requested was held by the agency when the application was received. The Officer of the respondent, Ms Julie Woolfall, Project Officer with the Information Access Unit considered the request. She states that all reasonable searches were undertaken in response to the application made in accordance with s53 of the GIPA Act. Following those searches a total of 11 record pages were identified as being relevant to the amended application received from Brookvale Public School and Beacon Hill Public School.

8. Ms Woolfall decided pursuant to s9(3) of the GIPA Act to:

• provide access to part of the information (s58(1)(a));

• to refuse access to part of the information because there is, on balance, an overriding public interest against its disclosure, (s58(1)(d)); and

• that some of the information sought is not held by the Department (s58(1)(b)).

9. The respondent in relation to each of the categories of documents sought by the applicant responded as follows:

1. Records held from parent teacher meeting on 21 March 2018 - present at meeting Jennifer Richardson, Michelle Learmouth and Jason Learmouth.

Response: No records were made at that meeting.

2. Statements held by Jennifer Richardson and Mark Gigli from 10 August 2018; and records from meeting on 15 August 2018 relating to conversation on 10 August 2018 in attendance Beverley Maunder and Delphine Annett (Principal, Stewart House).

Response: Records attached at pages 7 to 11 and page 11.

3. Any notes recorded by Beverley Maunder about discussion re Learmouth children after P&C meeting on 12 September including NAPLAN results.

Response: Email attached at page 5.

4. Records of correspondence to and from Beverley Maunder and Michael Clarke regarding Brookvale Public School football parking fundraising on 18 March 2018 from email: [email protected] and [email protected].

Response: No records exist from this date.

5. Records relating to a change of school application for out of area enrolment held by Peta Hanson (Principal, Beacon Hill Public School), Beverley Maunder (Principal, Brookvale PS) and Julie Kennedy (Director, Department of Education).

Response: Four pages of records attached at pages 1 to 5 from Principal, Beacon Hill Public School. Nil records exist from Brookvale Public School.

10. The respondent in relation to pages 7 to 9 in item 2 claims that the record contained personal information of third parties. The entirety of information has been redacted from the records released to the applicant. The respondent applied the public interest test in coming to this determination with respect to those documents.

11. On pages 9 to 11 information has been determined by the respondent to be personal information about students who were children at the relevant time. Disclosure to the applicant would not be in the best interests of those children or the third parties and the respondent has refused to disclose it. The respondent did not consult with the relevant third parties pursuant to s54 of the GIPA Act and chose to not provide that information to the applicant.

12. Further pages 7 to 9 contain information that the Officer of the respondent considered could reasonably be expect to prejudice the functions of the Department. The decision was made not to provide that information to the respondent relying on s14, 1(f). Some information which does not harm the Department’s function was released to the applicant.

External Review by the Information Commissioner

13. The applicant lodged an application for external review by the Information and Privacy Commission NSW (the IPC) on or around 31 January 2019.

14. The IPC’s review report (IPC report) was issued on 1 April 2019. The IPC concluded that the respondent’s decision was not justified in relation to clauses 1(f) and 3(g), is justified for some but not all of the information in relation to clauses 3(a) and 3(b) and is not justified in relation to the decision that some information is not held.

15. The IPC was not satisfied that the respondent conducted reasonable searches of parts 4 and 5 of the amended application.

16. The IPC recommended that the respondent make a new decision by way of internal review. The respondent decided to follow the IPC’s recommendation.

Internal Review Decision

17. On 4 April 2019, the respondent made an internal review decision. The result of that was that the respondent:

1. varied the original decision, after further searches were undertaken for part 4 and 5 of the application, by providing access to twelve additional pages of information from Julie Kennedy, Director of Educational Leadership; and

2. upheld the original decision that no other records were held by Brookvale Public School; and

3. upheld the original decision to provide access to part of the record and to refuse access to personal information and information affecting the functions of the Department.

The NCAT application

18. On or about 30 April 2019, the applicant filed with this Tribunal an application under the GIPA Act. The applicant at Part 3 of her application sets out the grounds for her application as being:

‘I am seeking a review of the decision on the following grounds:

That information sought from the Department of Education has still not been forthcoming. There are mistakes in the Department’s responses; incomplete, inaccurate or provided out of order. Including:

•   Records relating to the parent/teacher meeting 21 Mar 18 were never supplied. The teacher, Jennifer Richardson brought notes to the meeting and a follow up email was sent that night from the Principal.

•   Information withheld by the Department of Education in pages 7 to 9 as it is directly relevant to myself in the application.

•   Department did not supply details or content regarding the meeting between Beverley Maunder and Michelle Learmouth after the P&C meeting on 12 Sep 17.

•   Relevant information contained in emails between Beverley Maunder and Michael Clarke were not supplied because inappropriate search parameters were used by the Department of Education.

•   Despite evidence of communications between Beverley Maunder, Peta Hanson, Julie Kennedy, the Board and myself, there are incomplete records provided regarding my application to change schools.

•   Information withheld by the Department of Education in pages 12 to 23 as it is directly relevant to myself and the application.’

19. Since the application was made the respondent undertook further searches specifically in relation to item 4 of the amended application. After doing so it provided further records and release of information to the applicant, including a copy of the email requested. The applicant asserts that the search was incomplete.

Scope of Review

20. The respondent submits that the internal review decision of 4 April 2019 is the decision the subject of external review by the Tribunal as it is the respondent’s most recent decision. Further, the respondent submits that the further information provided at the second case conference should also be subject to the external review.

21. In the written submissions of the respondent it is contended that the respondent’s decision to refuse access to information because there is an overriding public interest against disclosure (s58(1)(d) of the GIPA Act) is a reviewable decision (s80(1)(d) of the GIPA Act). In that regard the respondent bears the onus of satisfying the Tribunal that its decision is justified (s105 of the GIPA Act).

22. The respondent also submits that there are no further documents held in relation to the request. This is a reviewable decision (s80(1)(e) of the GIPA Act). The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information of the kind requested exists and has not been supplied - see Shepherd v Department of Housing Local Government and Planning (1994) 1 QAR 464 at [19].

23. The applicant seeks the following:

• A review of the decision to redact information.

• A review of the decision that no further records are held.

• Item 6 in her original application being ‘any and all notes and correspondence made by Jennifer Richardson and/or Beverley Maunder in relation to meetings held or comments made to any party, regarding Michelle, Jason, Nathan, Sarah or Claire Learmouth between 2015 and 2018, not already referred to above.’

• The words ‘any and all correspondence and communications including written reports, statements and audio recordings … relating to/regarding items 1 to 6 in the valid access application’.

• Internal review decision of 4 April 2019.

• Further information provided at the second case conference.

24. The applicant makes the following concluding statement in her written submissions:

The applicant, in good faith, accepted the advice of Julia Woolfall and agreed to amend the original application as instructed. The applicant did not understand at the time that these amendments would result in the loss of some of the intent of the original application and therefore limit access to vital information.

25. Despite the applicant’s statement referred to in the preceding paragraph, I am of the view it is the amended application, the internal review decision and the information provided by the respondent after the second case conference that is the scope of review of this Tribunal (the reviewable decision).

Evidence and material before the Tribunal

26. The applicant tendered a combined statement and written submissions with annexures (A1).

27. The respondent tendered the following evidence:

• Written submissions and annexures (R1)

• Reply written submissions and annexures (R2)

• Statement of Ms Jenni Pendergast filed 2 August 2019 (R3)

• Bundle of confidential documents

28. Ms Pendergast gave short oral evidence in chief and was cross examined.

The Legislative Regime

29. Section 5 of the GIPA Act provides:

“5 Presumption in favour of disclosure of government information

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

30. Section 58 of the GIPA Act provides:

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 (see section 59), 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 (see section 60), 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. 

(2)   More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. 

(3)   If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

31. The reviewable decision of the respondent is a ‘reviewable decision’; s80(i) of the GIPA Act.

32. The Tribunal has jurisdiction to conduct a review of a reviewable decision made under s.100 of the GIPA Act.

33. In reviewing a decision of the respondent, the Tribunal may on application undertake an administrative review of that decision and determine the correct and preferable decision, having regard to any relevant factual material before it and any applicable written or unwritten law: s. 63 of the Administrative Decisions Review Act 1997 (the ADR Act).

34. When determining an application under s.63 of the ADR Act, the Tribunal may (see s.63(3)):

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: 

(a)   to affirm the administratively reviewable decision, or 

(b)   to vary the administratively reviewable decision, or 

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

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

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

The Public Interest Test

35. The GIPA Act creates a presumption in favour of the disclosure of government information except where there is an overriding public interest against disclosure.

36. Section 12 provides:

12   Public interest considerations in favour of disclosure

(1)   There is public interest in favour of disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note:   The following are examples of public interest considerations in favour of disclosure of information-

(a)   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.

(b)   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.

(c)   disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   the information is personal information of the person to whom it is to be disclosed.

(e)   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.

(3)   The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

37. Section 13 of the GIPA Act sets out the ‘public interest test’, providing that there will be an overriding public interest against disclosure of 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.

38. Section 13 requires the Tribunal to undertake a two-step approach when determining whether information has been properly withheld, as described by the Appeal Panel in Commissioner of Police (New South Wales) v Camilleri [2012] NSWADTAP 19 at [25]:

The agency case for refusal must rely on one or more of the s14 considerations. The Tribunal’s task is then to weigh the case against the factors favouring disclosure (s13), mindful of the injunctions that appear in both sections 12 and 15. It is important, in our view, that the Tribunal proceeded in the structured way reflected by these provisions.

39. Section 14 provides:

14   Public interest considerations against disclosure

(1)   It is to be considered presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1.

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

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

(4)   The Information Commissioner must consult with the Privacy Commissioner before any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3(a) or (b) of the table to this section.

40. The following relevant parts of the table in s.14 of the GIPA have been relied upon by the respondent in making its decisions:

1(d) - disclosure of information could reasonably be expected to prejudice the future supply of confidential information that facilitates the effective exercise of the department’s function;

1(f) - the disclosure of information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions; and

3(a) and (b) - the disclosure of information could reasonably be expected to reveal an individual’s personal information and contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (the PPIPA).

41. Section 15 of the PPIPA Act provides:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles -

(a)   agencies must exercise their functions so as to promote the object of this Act,

(b)   agencies must have regard to any relevant guidelines issued by the Information Commissioner,

(c)   the fact that disclosure of information might cause embarrassment to, or loss of confidence in, the government is irrelevant and must not be taken into account,

(d)   the fact that disclosure of information might be misinterpreted or misunderstood by any person is relevant and must not be taken into account,

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

Reasonable Searches

42. Section 53 of the GIPA Act provides:

53   Searches for information held by agency

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

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

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

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

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

43. Whether a search has been reasonable is determined by the answer to two questions:

1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so,

2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case (Shepherd v Department of Housing, Local Government and Planning [1994] QICMR 7; (1994) 1 QAR 464, at [19], as applied by this Tribunal in relation to the now repealed Freedom of Information Act 1989 in Hemeon v Commissioner of Police, New South Wales Police Service (2002) NSWADT 201 at 18 and the current GIPA Act in Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5).

44. As held by this Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at 19:

All the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant’s suspicions and the adequacy of the agency’s endeavours to satisfy them. If left unsatisfied by the agency’s evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s39 of the Administrative Directions Tribunal Act 1997 (NSW).

45. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which was not supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances. (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 at 33 to 34)

46. When alleging that a search is insufficient, the applicant must put some credible material or submissions before the Tribunal that documents of the kind requested exist; it is not enough to merely assert non-compliance on the basis of general distrust of the respondent: Cianfrano v Department of Commerce (No 2) (2006) NSWADT 195; Ferns v Commissioner of Corrective Services (2007) NSWADT 298; Turner v Corrective Services (New South Wales) (2013) NSWADT 39; AIN v Medical Council (New South Wales) [2013] NSWADT 112 at 155; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at 32; t

Issues to be Determined

Whether there are reasonable grounds to believe that the requested information exists and is held by the agency

47. The applicant submits that the evidence of the respondent demonstrates that searches have not been reasonable and are incomplete.

48. It is appropriate to set out the evidence of the respondent relating to searches which have been undertaken in response to the amended application.

49. The respondent’s Relieving Manager, Information Access for the Department, Ms Jenni Pendergast, filed a statement on 2 August 2019 (R3). Ms Pendergast sets out that her substantive position with the Department is Principal Information Access Officer. She has held this role since 2013 and is responsible for processing complex non-personal and personal applications and internal and external review applications.

50. Ms Pendergast said on 5 November 2018, the Information Access Unit of the Department received an application by the applicant. Searches were originally undertaken by Brookvale and Beacon Hill Public Schools and also by the Director of Schools, Julie Kennedy. Annexed at K, L and M of the respondent’s submissions (R1) are declarations completed by Beverley Maunder, Peta Hanson and Julie Kennedy setting out the searches undertaken in response to the request. The search request included items 1 – 5 of the applicants amended request. Eleven pages were found in the original searches undertaken by each of those persons.

51. Following the decision of the IPC, Ms Pendergast on 15 March 2019 asked that further searches be made by the Director, Julie Kennedy, and Brookvale Public School. Annexure B of her statement is the search request sent to Ms Julie Kennedy and Ms Beverley Maunder in that regard. The additional search terms included:

4   Records and correspondence to and from Beverley Maunder and Michael Clarke regarding Brookvale Public School football fundraiser on 18 March 2018 from email [email protected] and [email protected].

5   Records relating to a change of school application for out of area enrolment held by Peta Hanson (Principal Beacon Hill Public School), Beverley Maunder (Principal Brookvale PS) and Julie Kennedy (Director, Department of Education.

52. Ms Pendergast sent a search guideline to each search officer.

53. Following the further searches Ms Kennedy found 12 pages of information and completed a search officer declaration on 20 March 2019 indicating that she had provided all records held by her unit. Annexure D to the statement is a copy of the search officer’s declaration.

54. Further searches were also made by Brookvale Public School where a copy of the email between Beverley Maunder and Michael Clarke were provided. The additional search found no other information held by the school. At Annexures E and F is the search officer’s declaration.

55. On 6 June 2019, Mark Gigli sent to Ms Pendergast a diary entry in response to Item 2 of the amended application. Ms Pendergast said that his information was not captured in previous requests as he was at the time working at another school.

56. In conclusion Ms Pendergast says after three separate search requests being made by department officers, she considers that all reasonable searches have been undertaken in response to the applicant’s amended request in accordance with s53 of the GIPA Act.

57. In her oral evidence, Ms Pendergast stated that when search requests are sent out by the respondent they are sent to a principal or director who then on-sends the request to teachers. She said that the principal or director will direct teachers, such as Jennifer Richardson and Mark Gigli, to search and collect information and provide any documents found to the principal and then that principal signs the declaration. Each of the requests which were sent to the relevant officers of the respondent are found at Annexure J of R1.

58. The applicant submitted a number of deficiencies can be identified in the search officer declarations. In her written submissions she states that the respondent has not accounted for a non-response from Ms Richardson and Mr Gigli to the search officer request and that this should indicate to the Tribunal an unreasonable search being undertaken. I do not accept this submission given the evidence in chief that Ms Pendergast outlined that Ms Richardson and Mr Gigli are teachers and the principal is responsible for ensuring they search for information requested.

59. Specifically, the applicant raises the following issues about the reasonableness and adequacy of searches concerning each item in her request.

Item 1

60. The applicant states that she knows records exist because Ms Richardson brought notes with her to the parent/teacher meeting and referred to them in the applicant’s presence during the meeting; the applicant received an email from Ms Maunder following the parent/teacher meeting, suggesting the applicant enrol her children in a non-local school. She states it is reasonable to assume records would have been made by Ms Richardson and Ms Maunder; and employees have a responsibility to maintain records.

61. The applicant was not cross-examined in relation to her observation of MS Richardson referring to notes brought by her to the parent/teacher meeting. Given that her evidence in this regard is unchallenged, I am satisfied that there are reasonable grounds that information of this nature exits and is held by the agency.

62. In all other respects the submissions made by the applicant in my view are not credible and she merely asserts non-compliance on the basis of general distrust of the respondent.

63. However, I am satisfied that reasonable searches have been undertaken by the respondent in relation to this item. I have accepted the evidence of Ms Pendergast in relation to the notation N/A on the search declaration and the procedure of searches being undertaken by teachers. Ms Maunder has included relevant search terms for the information in this category, which, in my view was reasonable despite the notes taken by Ms Richardson to the parent and teacher meeting not being located. If they were in existence at the time of the search they should have been caught within the terms of the search itself.

Further Searches Item 3

64. The applicant asserts that she had a meeting with Ms Maunder on 31 October 2017 about concerns over the education and welfare of her children. Agreements were apparently made about the responsibilities of both the applicant and the school and steps moving forward. The applicant submits that, given the nature of the meeting, she would have expected notes to have been made and, indeed, given Ms Maunder sent an email to the applicant referring to that meeting 5 months later, she says this is further evidence that would indicate there should be notes of the meeting. I am not satisfied that the applicant has demonstrated anything more than a mere suspicion or mistrust of the respondent that information or documents exits concerning this meeting.

65. Ms Maunder provided a search officer declaration on 5 December 2018 and 19 March 2019. The applicant complains that in both of those search officer declarations Ms Maunder did not search hard copy files. The cross-examination of Ms Pendergast touched on this aspect. In the search declaration, Ms Maunder indicates next to hard copy file N/A. The Presiding Member asked what N/A means and Ms Pendergast said that either no hard copy or data is kept or available. Ms Pendergast was not questioned further on this point. I accept her evidence. I am satisfied that the searches undertaken by the respondent were reasonable.

Further Searches Item 4

66. The applicant complains that she suspects a further email from Ms Maunder to Michael Clarke in relation to football carparking was or is in existence. She relies on the evidence annexed “F” of A1 that the third email exists given the question Mr Clarke raised in his email to Ms Maunder ‘Did you have any view you would like me to present given you will be absent?’

66. The applicant states as follows:

On 27 March 2018 at Brookvale Public School P&C meeting Michael Clarke had a hard copy of Beverley Maunder’s email outlining the views she wanted expressed at the meeting. Michael Clarke, the Chair, summarised Beverley Maunder’s position as outlined in this email. Beverley Maunder’s view was that the deciding vote on football parking costs that evening. The email was not tabled.

68. The applicant goes further to say she had a conversation with Mr Clarke who was prepared to show her this email but was unable to access his emails at the time given they were at a fundraising event.

69. The respondent has produced the emails to and from Ms Maunder and Mr Clarke on 20 March 2018. The applicant was not cross-examined. It would appear in my view, given the unchallenged evidence of the applicant that the applicant has reasonable grounds to suspect this additional email exists.

70. The search request of the respondent should have detected this email. The search declaration completed by Ms Maunder on 19 March 2019 does not specify which email addresses she searched, nor, the date range. It also does not include her email address. In my view it is deficient. No further email has been produced. I find that the search is unreasonable.

Further Searches Item 5

71. The applicant complains that insufficient reasonable searches were undertaken with respect to records relating to a change of school application for out of area enrolment concerning her children.

72. The applicant complains that the search parameters were insufficient and limited in that Peta Hanson declared no emails were found after a 2 minute search and she did not provide the search terms for the email search performed found at Annexure L of the respondent’s submission (R1).

73. The applicant submits that there was a Board or Panel Meeting because Ms Hanson indicated to the applicant that her application would be taken to the Board for discussion and Ms Maunder writes in an email to Ms Kennedy on 12 September 2018 (R1, Annexure E):

I know that she submitted a non-local application to Beacon Hill that was declined by their panel. …

74. The applicant complains that search terms for email correspondence to Ms Maunder included Ms Hanson as a key word and not as a search term for an email address. Similarly, no search terms for email correspondence between Ms Maunder and Ms Kennedy were included within the search request to Ms Maunder.

75. I also note an email from Ms Hanson to Ms Kennedy of 17 August 2018 records the following:

Hi Julie, happy Friday. I know how busy you are and this isn’t pressing but I was wondering if you had some time available to chat about a couple of OOA enrolments I have received. I am under the impression you might know about them already - the Learmouth family. …

76. I accept the applicant’s submissions that there are likely to be other documents in the possession of the respondent relating to an out of area application for her children. I am not satisfied that the search terms contained in the search officer request (Ms Maunder and Ms Hanson) and declarations adequately meet the criteria for a reasonable search to have been undertaken. I accept the applicant’s submissions as set out above that the search terms failed to include names of emails searched by Ms Maunder and Ms Hanson. The search undertaken by Ms Kennedy is in my view reasonable as she has included the email search terms in the signed declaration. Ms Hanson has declared no emails were found in her search, yet, the email referred to above clearly indicates that an email is in existence.

77. I am of the view that the evidence does not reveal that reasonable searches of information pertaining to item 5 have been carried out by Ms Maunder and Ms Hanson. The respondent is to carry out further searches in this regard. It would also be of assistance where a search officer declaration is completed that the relevant officers of the agency complete the declaration appropriately. Many of the search officer declarations tendered in evidence lack important information which assists, each party, and the Tribunal to understand what has been searched. This is surprising given the officers searching the records and signing declarations on behalf of the respondent are teachers and principals, whom, one would expect would be more thorough in completing these documents.

Further Searches Item 6

78. The applicant also seeks to include item 6 of her original application. However, for the reasons as set out above, this item does not fall within the scope of the review of this Tribunal.

Whether the Search Efforts made by the respondent to locate the requested information have been reasonable in all the circumstances

79. The evidence of Ms Pendergast demonstrates that three separate search requests were sent and executed by various department officers in response to the applicant’s application. It is unclear on the evidence as to the total time which was undertaken by each of the search officers carrying out the relevant searches. I note the search completed by Peta Hanson on 6 December 2018 took a total of 17 minutes.

80. After further requests by the applicant and following the review of the IPC, the respondent undertook further searches and was able to obtain information in answer to the applicant’s request which was duly provided in part to the applicant.

81. The agency is obliged to conduct reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency searches must be conducted using the most efficient means reasonably available to the agency (s53(2) and (3)).

82. The reasonableness of the search will be judged on the circumstances, Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health [1985] AATA 201; (1985) 8 ALD 163.

83. In Miriani v Commissioner of Police, New South Wales Police Force (2005) NSWADT 187, O’Connor DCJ held:

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 record system keeping 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. (At [30])

84. The applicant had the benefit of a supplementary search conducted by the respondent’s officers after the internal review, which addressed further questions put by her in writing. Therefore she had an additional opportunity to address any inadequacies in the search conducted. The searches did locate further information which was provided to the applicant.

85. I find that the searches undertaken by the respondent have been reasonable except for the searches identified above in relation to: item 4 completed by Ms Maunder; and item 5 by Ms Maunder and Ms Hanson for the reasons stated.

Release of Redacted Information

86. The applicant seeks the release of redacted information and relies upon s3 of the GIPA Act and the public interest considerations in favour of disclosure (s12(1), (2)(b), (d) of the GIPA Act).

87. For the most part the respondent relies upon items 1(d), 1(f) and 3(a) and 3(b) in the table contained in s14 of the GIPA Act as public interest considerations against disclosure.

88. The applicant outlines each of the redacted documents in which she seeks access. I have set out each of those below.

Pages 7 to 9 - the Statement of Jennifer Richardson

89. It is uncontroversial that Ms Richardson provided a statement concerning a discussion she had with the applicant in the hallway of the Brookvale Public School. The applicant submits that the respondent has not established that the supply of this confidential information could prejudice the effective exercise of the agency’s function. Similarly, the applicant submits that the same document cannot be seen to prejudice the effective exercise by an agency of the agency’s functions (1(f)) nor that it reveals an individual’s personal information (3(a)). The applicant also says that the provisions of 3(b) do not apply as the statement is a record of a conversation between Ms Richardson and the applicant. She submits that the statement was written by Ms Richardson to form the basis of discussion at a meeting between Ms Maunder and the applicant.

90. The argument put forward by the respondent is that the statement of Ms Richardson is of a confidential nature made by a staff member in response to a request by Ms Maunder and is information relating to the functions of the Department. The respondent claims that public interest considerations against disclosure applying with respect to this document include 1(d), 1(f) and 3(a) and 3(b).

1(d) – disclosure could reasonably prejudice supply of confidential information that facilitates effective exercise of the agency’s functions

1(f) - disclosure could reasonably prejudice the effective exercise of an agency of the agency’s functions

91. The respondent submits that the disclosure of the disputed document will prejudice the supply of future information by employees in the respondent’s complaint handling and investigative processes, and would thus undermine the respondent’s ability to undertake these processes.

92. In particular, the following is submitted in relation to the respondent being prejudiced if the confidential information was disclosed under the GIPA Act:

• confidentiality is essential to the integrity of the investigations and the management of complaints;

• if principals or other executives disclosed personal information about individuals without their consent, staff, students and members of the public would be reluctant to cooperate with investigations of complaints in the future;

• the respondent depends upon its employees and concerned members of the public to truthfully supply information and assist with its investigations without fear of adverse repercussions; and

• if the respondent did not handle confidential information supplied to it with sensitivity and discretion, people would be unwilling to come forward and cooperate, and sources of information would dry up.

93. The respondent submits that Ms Richardson voluntarily wrote the file note and she has significant concerns that disclosure of her opinions could lead to her being harassed or intimidated by the applicant.

94. The respondent has submitted that this Tribunal has recognised the application of the public interest consideration against disclosure 1(d) to information gathered by the respondent in its investigative and complaint handling functions in a number of cases (see, for example, McInnes v New South Wales Department of Education and Communities [2013] NSWADT 219; Jenkinson v Department of Education and Communities [2013] NSWADT 280; Troskie v New South Wales Department of Education and Communities [2014] NSWCATAD 155 at [54]). The respondent submits these decisions are apposite.

95. It is uncontroversial having considered both the applicant and respondent’s evidence that the statement of Ms Richardson was obtained on the basis that it would be used as information for a meeting between Ms Maunder and the applicant. The meeting did not take proceed as the respondent refused to allow the applicant to record the meeting.

96. The overall submissions by the respondent in this regard are accepted. However, the respondent’s evidence lacks the basis upon which it alleges confidential information has been provided, particularly in relation to the respondent’s ability to undertake a complaint handling and investigative process. As indicated above, Ms Maunder did not give evidence. However, it is uncontroversial that the Brookvale Public School was undertaking an investigation/enquiry in relation to matters raised by the applicant concerning her children, their education and performance at the school. Whilst there may have not been a formal complaint I am satisfied based on both the applicant and respondents evidence that some form of investigation was being undertaken. The school was arranging meetings with the applicant to discuss at a minimum her children’s education and to listed to the views of the applicant. Indeed the applicant wanted to record the meeting so that her husband could hear what was said. I therefore reject the applicants submissions that there was not an investigation being undertaken.

97. In am satisfied and accept that some reliance by the respondent on the co-operation of employee providing information to it is necessary and that disclosure could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions.

98. The most persuasive argument the respondent submits in relation to 1(f) is that the Department’s executive officers needs to be able to freely discuss discreetly and honestly how to best manage and resolve various sensitive issues affecting the operations of the school. The respondent submits that the release of all correspondence between executive staff may seriously impair the respondent’s ability to perform its day to day functions. Related to this is the obligation of the respondent to maintain and exercise its responsibilities with respect to the health and wellbeing of the staff.

99. [NOT FOR PUBLICATION]

100. I accept the respondents submissions that Ms Richardson has a genuine concern that she fears for some type of repercussion by the applicant if her communication to Ms Maunder was released. I have considered the applicant’s submissions that there is no indication that Ms Richardson should have held such fears, however, the concern is held by Ms Richardson which is subjective. The respondent has an obligation to protect the health and wellbeing of its staff in all circumstances. Once it is on notice of such a matter the respondent must act accordingly.

101. The respondent submitted that there is a strong public interest in continuing to receive voluntary assistance from its employees and others. Likewise, the respondent must be able to maintain its ability to exercise its personnel management functions effectively.

102. I accept and find that disclosure of this type of information could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff.

3(a) and 3(b) reveal a person’s personal information and contravene an information protection principle

103. It is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a person’s personal information ((3)(a)) and contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (the PPIPA) (3(b)). Disclosure may also contravene the IPP in s18 of the PPIPA if disclosure is made without consent for a purpose other than that for which the information was collected.

104. The applicant submits that the statement of Ms Richardson is about her and therefore any release of this statement would not breach the PPIPA because it is information which has already been released given it relates to a public conversation, and it being the applicant’s information.

105. The respondent submits that the statements in the disputed document contain the personal opinions of a staff member, Ms Richardson, provided in the course of the investigation and complaints management process. While such information may be characterised as the applicant’s personal information, in so far as it is ‘information or an opinion’ about her, it is also the personal information of the staff member, as it is an expression of her opinions and views. The respondent cites Singh v Legal Aid Commission (No. 2) [2015] NSWCATAD 5 at [49] (citing McKinnon v Blacktown City Council [2012] NSWADT 44 at [73]). The Tribunal confirmed that information about work performance, complaints about other staff members and misconduct allegations concern the personal information of both the person making the complaint (or, providing information in an investigation or management of a complaint), and the person who is the subject of a complaint. The statement also includes private information about third parties.

106. Furthermore, the respondent submits that disclosure of the personal information would reasonably be expected to contravene the IPP relating to disclosure in s18 of the PPIPA. S18 provides that an agency that holds personal information must not disclose the information to a person (other than the individual to whom it relates) or other body, except in certain circumstances. None of these circumstances would apply to permit disclosure in this case:

• release of information under the GIPA Act is not a purpose directly related to the purpose for which the information was collected (s18(1)(a)); and

• the individuals concerned would not have been aware that information of this kind would usually be disclosed to the applicant, having regard to the respondent’s policies governing investigations and complaints management which emphasise the confidentiality of the process.

107. The respondent submits that the information obtained by Ms Maunder from Ms Richardson was done so on a confidential basis to assist in material to be used in the discussion with the applicant concerning her children’s education and schooling. I accept the respondent’s argument that the information was supplied by Ms Richardson on the understanding that confidentiality would be maintained, and that disclosure would likely prejudice the supply of information in the future as it relates to the participation by staff members in the exercise by the respondent of its functions in respect of managing the school and the health and wellbeing of staff.

108. I accept that the statement of Ms Richardson contains her personal information, views and opinions. Disclosure could reasonably be expected to contravene and information protection principle under the PIPPA. Once information is released to the world at large it is not possible to impose any conditions on the disclosure.

109. Having considered all of these matters and the lengthy submissions of the applicant and the respondent, I have decided that the statement of Ms Richardson should not be disclosed.

Diary entry of Mark Gigli

110. The document produced by Mark Gigli is a diary entry referring to a meeting with Michelle Learmouth. The applicant seeks that the Tribunal order that the section redacted from that page be disclosed.

111. Having reviewed the original document, it is evident to me that the respondent has made the correct decision to redact that part of the diary pursuant to s74 of the GIPA on the basis of it being not relevant. The respondent’s decision is upheld.

Other redacted documents

112. A number of parts of documents have been redacted by the respondent, I deal with each of those below.

113. On page 12 the respondent submits that the part redacted is done so under 1(d) and (f). Having considered the submissions, it is evidently clear to me that the information ought be redacted as it is information that facilitates the effective exercise of the agency’s functions. Disclosure of it may prejudice the respondent in the effective carrying out of the agency’s functions. The decision of the respondent to redact that part of the document is upheld.

114. Page 15 of the documents produced by the respondent redacts two parts. The first being an entry which the respondent submits is not relevant to the applicant’s request. I concur with the decision of the respondent in this regard and find that that part of the document ought be redacted pursuant to s74 of the GIPA as not being relevant to the applicant’s request.

115. The second part of the document which is redacted has been done so by the respondent on the basis of 1(d) and 1(f). In my view, the decision of the respondent is correct and consideration against disclosure of this information if disclosed could reasonably be expected to prejudice the effective exercise by the agency of its functions.

112. Page 21, an email passing between Ms Kennedy and Ms Maunder, has redacted by the respondent a paragraph claiming that 1(d) and 1(f). I t accept the respondent’s submissions in relation to that part of the document being redacted. I am satisfied that the respondent has discharged the onus to demonstrate that the respondent would be prejudiced should that information be released to the applicant with respect to the agency’s exercise of its functions.

113. Page 22 relates to an email passing between Ms Maunder and Ms Kennedy of 12 September 2018. The respondent submits that that part of the document redacted has been validly undertaken pursuant to 1(d) and 1(f). Having considered the information contained in those documents I am satisfied that the respondent’s decision is the correct and preferable one and should be upheld. The release of information contained within the redacted part in my view is a public interest consideration against disclosure of the information on the basis that the disclosure could reasonably be expected to prejudice the effective exercise of the agency and its functions.

114. Page 23 relates to an email passing between Ms Kennedy and Ms Maunder of 29 October 2018. The respondent submits that that part of the document redacted has been validly undertaken pursuant to 1(d) and 1(f). Having considered the information contained in those boxes I am satisfied that the respondent’s decision is the correct and preferable one and should be upheld. The release of information contained within those boxes in my view is a public interest consideration against disclosure of the information on the basis that the disclosure could reasonably be expected to prejudice the effective exercise of the agency and its functions.

115. In respect of all of the redacted information, after consideration of all of the material and evidence before me, I find the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.

116. In the final submissions made by the applicant she seeks the Tribunal to release the statement of Ms Richardson submitted to the Tribunal and the confidential bundle of documents relied upon by the Respondent in relation to this application. As explained to the applicant during the hearing, these documents have been marked confidential on the basis that they contain the information in which the Tribunal is to make a decision as to whether or not it should be disclosed. On the basis that I have made a determination with respect to all of the information contained in the bundle, including that the statement of Ms Richardson and her evidence should not be disclosed or published and order accordingly.

117. The Tribunal makes the following orders:

1. The statement made on 23 July 2019 and evidence of Jennifer Richardson is not to be disclosed to the applicant or published pursuant to sections 64(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The respondent is to conduct a further search within 28 days in relation to:

1. records and correspondence to and from Beverley Maunder and Michael Clarke regarding Brookvale Public School football parking fundraiser 18 March 2018 to/from email [email protected], [email protected] and [email protected].

2. records relating to application for change of school application for out of area enrolment held by Peta Hanson (Principal, Beacon Hill Public School), Beverley Maunder (Principal, Brookvale PS) and Julie Kennedy (Director, Department of Education).

3. In all other respects the decision of the respondent 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: 21 April 2020