McInnes v NSW Department of Education and Communities

[2013] NSWADT 219

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McInnes v NSW Department of Education and Communities [2013] NSWADT 219
Hearing dates:	On the papers
Decision date:	09 October 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decisions under review are affirmed
Catchwords:	Investigation of Applicant's complaints - access sought to information about the conduct of the investigation and personal information
Legislation Cited:	Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Freedom of Information Act 1989
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADTAP 19Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 R v Ritson; R v Stacey (2010) NSWDC 160 Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Category:	Principal judgment
Parties:	Neale McInnes (Applicant) NSW Department of Education and Communities (Respondent)
Representation:	N McInness (Applicant in person) NSW Department of Education and Communities (Respondent)
File Number(s):	133088 133040

reasons for decision

Background

1. The Employee Performance and Conduct Directorate ('EPAC'), formerly known as the Child Protection Investigation Directorate ('CPID'), carries out investigations into allegations and complaints, including in relation to child abuse.

1. The applicant, Neale Mclnnes contacted CPID alleging that in 1966 he was assaulted and abused by his classroom teacher when he was a student at Yates Avenue Public School ('the school').

1. CPID investigated his allegation but eventually decided that that there was no evidence to sustain the allegations.

1. Subsequently the Applicant contacted one of the people interviewed as part of the investigation.

1. In 2007 Mr Mclnnes made an application for access to CPID investigation file ('the CPID file') under the NSW Freedom of Information Act 1989 ('FOI Act'). He was provided with access to 235 pages of records from the CPID file but 17 pages of information were withheld in whole or in part. Those are the same 17 pages the subject of his present application which gave rise to these proceedings.

Matter 133088

1. On 13 September 2012 Mr Mclnnes applied to the Respondent for access to two pages of information under the GIPA Act: pages 181 and 182 of the CPID file. Access had previously been refused to parts of these pages in the 2007 FOI determination. His application was refused but on internal review three lines of information from page 181 and two lines from page 182 were released to the applicant. The Applicant seeks review of that decision.

Matter 133040

1. On 15 October 2012, Mr Mclnnes made another access application under the GIPA Act. Mr Mclnnes sought access to the remaining 15 pages of information from the CPID file "in relation to the period 21 June 2004 to 25 July 2007". Access was refused but on internal review it was decided to disclose one line of information from page 0021.

Relevant Legislation

1. The objects of the GIPA Act are set out in s. 3, which provides:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

authorising and encouraging the proactive public release of government information by agencies, and

giving members of the public an enforceable right to access government information, and

providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

that this Act be interpreted and applied so as to further the object of this Act, and

that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

1. There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': s.5 of the GIPA Act.

1. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

13 Public interest test

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

1. The public interest considerations against disclosure are set out in s. 14 of the GIPA Act, and are discussed below.

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It 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:

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

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

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.

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

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.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

The documents

1. For consistency I have referred to the documents according to their EPAC folio numbers:

• Folios 21 and 27 contain the name, address, age and phone number of a person who was a teacher at the school.
• Folio 95 and 96 are running sheet entries about contact with a person who was a teacher at the school.
• Folios 106, 107 and 108 contain information about people who may have been teachers at the school and contacts with those people.
• Folio 120 contains the name of ex-teachers at the school and information provided as a result of contact.
• Folio 137 contains the full name of a person whose personnel record was called for in the course of the investigation.
• Folio 163 is a letter to a former teacher at the school.
• Folios 181 and 182 is an extract from EPAC's final report and includes information about a former teacher's whereabouts and a précis of discussions with her and another person.
• Folio 186 is an EPAC case recommendation review sheet
• Folio 195 contains information about a telephone conversation with a person in relation to the investigation.
• Folios 196, 197 and 198 contain information about other persons contacted in relation to the investigation and information provided as a result of that contact, and information about a person consequently contacted in relation to the investigation, and information about discussions with that person.

CONSIDERATION

1. The Applicant had expressed concerns in his submissions that it had been alleged by the Respondent that in 2002 he had contacted the teacher about whom he had complained. None of the documents the subject of the review refer to any such contact.

1. In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s. 13 of the GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.

1. At the Tribunal planning meeting on 26 March 2013, the Applicant indicated that he sought access to the redacted information to find out what the EPAC investigation officers had written about him. To some extent this could limit the scope of what the Applicantseeks. For completeness though I have addressed all the redacted or excluded material.

1. The Applicant clearly does not trust what EPAC investigation officers have told him about their investigation, nor does he have confidence in the decisions in relation to his access application. The Applicant's assertions seem to support the public interest considerations in favour of release listed at s.12(e) of the GIPA Act. That is, the Applicant considers that disclosing the information could possibly be expected to reveal or substantiate that members of the Respondent agency have engaged in misconduct or negligent, improper or unlawful conduct.

1. Other possible public interest considerations may be that disclosure of information could reasonably be expected to:

• reveal the reason for a government decision and any background or contextual information that informed the decision;
• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies; and
• contribute to the administration of justice generally, including procedural fairness.

1. I accept that these considerations apply, albeit in the most general sense. They are nonetheless considered in the balancing process the Tribunal must undertake.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act.

1. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('the Camilleri appeal') the Appeal Panel (at [26]) considered that the s.14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".

1. To raise these as relevant considerations in the application of the public interest test the Respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), ('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

1. Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. The Respondent submitted that there were a number of bases upon which it claimed there were public interest considerations against disclosure in relation to the documents or redacted portions of documents in issue:

• prejudice the effective exercise by an agency of the agency's functions 1(f)
• the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the Respondent: 1(g)
• 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): 1(h)
• the disclosure is one that could be reasonably expected to reveal an individual's personal information: 3(a)
• the disclosure is one that could be reasonably expected to contravene an information protection principle under the Privacy and Personal Information Protection Act1998 or a Health Privacy Principle under the HealthRecords and Information Privacy Act2002: 3(b)
• the disclosure is one that could be reasonably expected to expose a person to a risk of harm or of serious harassment or serious intimidation: 3(f)

Disclosure could reasonably be expected to:

• prejudice the effective exercise by an agency of the agency's functions 1(f)
• result in the disclosure of information provided in confidence to the Respondent: Table 1(g)
• prejudice the conduct, effectiveness or integrity of investigation conducted by an agency by revealing its conduct or results:Table 1(h)

1. In determining whether disclosure would prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack at [52].

1. The Respondent relied on a statement by Neil Ray, Chief Investigator, EPAC. A confidential statement was also provided by another senior officer in EPAC, but it was largely unnecessary for me to rely on that evidence in reaching my decision.

1. Mr Ray's evidence was that EPAC's functions include investigative work in relation to the performance and conduct of departmental employees. Functions include investigating allegations of abuse of current or former students by employees and former employees of the Department or other members of the general public. The sensitive nature of EPAC's work and confidentiality associated with many of its records requires that it often operates quite separately from other areas of the Department and its records are stored separately and securely.

1. From examination of the documents they include, as Mr Ray described, records of communications between EPAC's investigation officers (or their support staff), other departmental officers and people external to the Department.

1. The Respondent submitted that disclosure of the information contained in the disputed redactions would amount to the disclosure of information provided in confidence to the Respondent.

1. In the Camilleri appeal the Appeal Panel considered that the question of whether information supplied was 'confidential information' should be examined "primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33].

1. Mr Ray said that where enquiries are made by EPAC in cases such as that of Mr Mclnnes, the primary investigative objective is to identify the person subject to the allegation as well as any possible witnesses. In the course of its investigation EPAC made extensive searches of its records and identified past employees who had worked at the school at the relevant time and wherever possible contacted them. It is relevant that the allegation relates to incidents that occurred in 1966, more than 46 years ago. The past employees who assisted the investigators were asked to recall details of their teaching history including the names of people with whom they had worked. This was done without knowing the extent of the alleged concern or to whom the alleged conduct may have applied. These past employees co-operated with the investigators, and provided information, apparently to the best of their recollection, given the passage of time.

1. Mr Ray said that because of the nature of EPAC's investigations it often reveals highly sensitive personal information which is inherently of a confidential nature. Although confidentiality cannot be guaranteed, the Respondent is obliged to use its best endeavours to maintain confidentiality over such information. According to the Respondent's Code of Conduct and Guidelines, EPAC is to carry out investigations in accordance the Respondent's complaints handling policy, which are publicly available on the Respondent's website. Portions of the Guidelines were extracted, for example, cl. 7.8.2.2 which states, in part, "Investigations should be conducted in a confidential manner". 'Confidentiality' is defined in the policy as, "information provided by a person on a confidential basis which is not to be disclosed e.g. the identity of the provider and/or the details of the information are not to be disclosed except as agreed to by the provider". An undertaking of confidentiality can encourage people to provide intimate details and sensitive information. Staff members and other people providing information in response to an investigation understand that information provided to EPAC or to senior management will be kept confidential, where possible. There is a necessary and implied confidentiality associated with many of EPAC records.

1. Mr Ray said that it is essential to the Department's integrity to acknowledge that personal information of people involved in the investigation, including their location, was secured by EPAC. The Respondent submitted that if information of this kind were to be made publicly available, people would be reluctant to come forward in the future to provide facts, opinions and other information about the investigation. Had the ex-teachers and others anticipated the information they provided in circumstances of confidentiality would be available for release to the public, they may well have declined to provide information.

1. Unlike some agencies, the Respondent has no power to compel non-staff - including former employees - to participate in investigations. It therefore must rely upon their goodwill. I accept that to encourage people to participate, it is important that the Respondent can offer people no longer connected to it an undertaking of confidentiality to the maximum extent allowable by law.

1. Although theoretically a staff member could be compelled to participate in an investigation, the Respondent usually relies on the voluntary cooperation of staff. I accept that it is important that for its investigations EPAC can offer staff an undertaking of confidentiality to the maximum extent allowable by law to encourage staff members to participate.

1. The Respondent further submitted that disclosing this confidential information could reasonably be expected to prejudice the future supply of such information: Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 at [70] and [80].

1. On the basis of Mr Ray's evidence I accept that there is some reliance by the Respondent on the co-operation of employees and former employees and others in investigating allegations. Further, I accept there is a risk that members of the public may be reluctant to report matters to the Respondent about allegations of impropriety if the Respondent were unable to protect their privacy.

1. I accept that the release of information in this case could reasonably be expected to prejudice the future supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions.

Could disclosure be reasonably expected to reveal personal information? Table 3(a)

1. The term "reveal" is defined in clause 1 of Schedule 4 GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). If the information in a record has been disclosed, it cannot then be "revealed" by giving access under the GIPA Act: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [174]. This is consistent with the approach in R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58], in which the Court adopted the meaning of "disclosure", albeit for the purposes of the Privacy and Personal Information Protection Act 1998 ('the PPIP Act'), the definition in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at [614] -[615] per Latham CJ:

... it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.

1. Once information is known by an applicant, it cannot then be revealed or disclosed, unless it was originally revealed by unlawful means.

1. It is helpful to recall that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. Further, the issue for consideration is not whether the document has been publicly disclosed, but whether the information contained therein has been publicly disclosed. The effect of s 105(1) is to place the burden of establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information, is on the agency. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40].

1. The Respondent acknowledged that the Applicant had located the whereabouts of the teacher and had contacted her. Somewhat inconsistently, it seemed to me, the Respondent claimed that it 'is possible' that the Applicant may know some of the personal information which has been redacted. Personal information relating to that teacher is in some of the redacted material: eg Folio 137, and part of Folio 163 (although this is not the only basis on which the Respondent claims this information is properly redacted).

1. More generally, the records of investigation contain information about a number of elderly people who have retired from their employment with the Respondent. In most cases the redacted information reveals their name, address, telephone number and some other information, all of which is clearly personal information. The Respondent submitted that disclosing the information to which it has refused access could allow Mr Mclnnes to identify and locate other former employees.

1. I accept that if the information currently redacted were to be provided to the applicant, there are grounds for believing this would lead to the disclosure of personal information.

1. The Respondent also submitted that disclosing the personal information without the consent of the third parties is likely to contravene the Information Protection Principle at s.18 of the PIPP Act. Section 18 provides that personal information held by a government agency must not be disclosed to another person except in certain circumstances. Further, the information is not to be used or disclosed for a purpose other than the purpose for which it was provided to the agency. I accept the information was provided to the Respondent for a specific purpose, namely to provide details in respect of an investigation by EPAC. To grant access under the GIPA Act is not in keeping with the purpose for which the information was collected. I agree that this is a factor to be taken into consideration.

the disclosure is one that could be reasonably expected to expose a person to a risk of harm or of serious harassment or serious intimidation: Table 3(f)

1. The Applicant provided a copy of a school photograph with a notation on the back: "Dear [teacher] why did you abuse me so much for being in the wrong class?" which he had sent to the teacher's home address. There was no evidence that he had contacted or attempted to contact any other teacher.

1. Mr Ray said that that the applicant's contact with the teacher had caused her ongoing emotional distress and fear that her privacy had been invaded. I accept this to be the case. For an elderly person to be contacted by someone after so many years would no doubt be intimidating. However, the test for this factor is whether disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation. I have reviewed the evidence in the confidential material provided to me but I consider there to be no objective evidence that this high level of risk might occur.

1. The Respondent submitted that providing the confidential and personal information of third parties is very likely to expose other people involved in the investigation to a risk of harm or of serious harassment or serious intimidation. Although Mr McInnes is clearly angry about the outcome of the investigation, I consider there to be a low risk of this occurring. The applicant's complaint was about one particular teacher.

Balancing the public interest test

1. I understand that Mr McInnes was dissatisfied with the conduct and outcome of the investigation into his complaint. However, that is not a matter for me. The Tribunal's only task is to determine whether there is an overriding public interest against disclosure of the withheld information, paying due regard to the principles in s.16 of the GIPA Act. This requires me only to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].

1. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].

1. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information such as personal information. Under s. 54(5) of the GIPA Act any objection must be taken into account when balancing the public interest. There was no evidence that the Respondent had specifically sought the views of all those whose name and other personal information is in the withheld material, but as the investigation concerns incidents from 1966, most of the third parties are no longer employees of the Respondent, and are now elderly. Some named could not be contacted, even for the purpose of the investigation. Additionally, in Mr Ray's opinion these elderly ex-employees would find being contacted by Mr Mclnnes to be an invasion of their privacy and emotionally distressing. I am prepared to accept that it is unlikely, in the circumstances that elderly former employees would have no objection to their personal information being made public.

1. The Applicant's motive in making the application for documents is a further factor that may be considered under s. 55(1)(b) of the GIPA Act. The Applicant indicated sought access to the redacted information to find out what the EPAC investigation officers had written about him. I observe in passing that the Applicant has already been provided with the vast majority of the Respondent's file in relation to the investigation and, from the available material, appears to have been afforded procedural fairness in the course of the investigation.

1. The Applicant was clearly disappointed with the outcome of the investigation and, it appears, has a general distrust of the Respondent. From his submissions it was clear that the Applicant considers that disclosing the information could possibly be expected to reveal or substantiate that members of the Respondent agency have engaged in misconduct or negligent, improper or unlawful conduct. This is a serious allegation and I would attach significant weight to such an assertion if it were borne out. It was equally clear to me that the information that has been withheld from release is information about the investigation which concerns third parties. The information which has been redacted does not reveal or substantiate that members of the Respondent have engaged in misconduct or negligent, improper or unlawful conduct.

1. I have also taken into account the other broad public interest considerations which I identified.

1. I have found that the disclosure could be reasonably expected to prejudice the supply of confidential information to the Respondent that facilitates the effective exercise of its functions; that the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the Respondent; that the disclosure is one that could be reasonably expected to reveal an individual's personal information and/or contravene an information protection principle under the PIPP Act. I have attached significant weight to these matters.

1. In weighing up the public interest considerations for and against disclosure outlined above, I find the Respondent's submissions are sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act. I find that the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, there is an overriding public interest against disclosure to the Applicant of the information redacted in the documents: s. 13 of the GIPA Act.

DECISION

The decisions under review are affirmed.

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Decision last updated: 09 October 2013