Moore v Department for Education and Child Development - [2014] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
MOORE v DEPARTMENT FOR EDUCATION AND CHILD DEVELOPMENT
[2014] SADC 49
Judgment of His Honour Judge Rice
28 March 2014
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Appeal from a determination of the Ombudsman pursuant to the Freedom of Information Act 1991 after an internal review by the Department for Education and Child Development and an external review by the Ombudsman. The vast majority of the material sought by the appellant has been released to her concerning her time as a minor when she was placed in care. She appeals so that disclosure of all materials is made to her. Exemption from such full disclosure was made pursuant to Clauses 6 and 12 of the Freedom of Information Act.
Held: Some further documents disclosed but otherwise no cogent reason to depart from the determination of the Ombudsman.
Freedom of Information Act 1991 ss 4, 13, 16(1)(b), 19, 39, 40(2) and 48, Schedule 1 Clauses 6 and 12; Children's Protection Act 1993 ss 13, 58 and 88; District Court Act 1991 s 42E, referred to.
Victoria Police v Marke (2008) 23 VR 223, applied.

MOORE v DEPARTMENT FOR EDUCATION AND CHILD DEVELOPMENT
[2014] SADC 49
Introduction

This is an appeal brought by Ms Moore against a Freedom of Information Act 1991 determination made by the Ombudsman of South Australia. Ms Moore’s appeal is brought pursuant to s 40(2) of the Freedom of Information Act 1991 (the FOI Act). The history of the application to this point is referred to below, but essentially Ms Moore has been given access to, and copies of, a large amount of material but wants to see it all. The Ombudsman made a determination on 3 September 2013 denying access to certain documents and the respondent submits that that determination should be affirmed.
Background
A history of the application serves to narrow the nature of the remaining areas where access to documents is still denied.
Pursuant to s 13 of the FOI Act, Ms Moore sought access to documents concerning her time as a minor when she was placed in care. Her initial application dated 4 July 2012 sought access to “All Records from 1-4-67 – 1‑4‑85.”
In the first instance, the application was determined by the Department for Education and Child Development (DECD). By response dated 1 February 2013, DECD determined to give access to 190 documents, being documents 1-178 and 229-240.
DECD claimed an exemption for portions of some of the documents pursuant to Clauses 6(1) and 12(1) of Schedule 1 to the FOI Act. Because portion of some of the documents related to the personal affairs of others (Clause 6(1)), Ms Moore received only part of the documents, that is, with deletions (exempted) pursuant to that clause. As DECD expressed it:
The information that has been exempted from the file is information relating to other persons such as your mother, siblings or other persons mentioned in the records.
As for the exemptions pursuant to Clause 12(1) of Schedule 1 of the FOI Act, they quite simply come within the category of document prohibited from release because disclosure would constitute an offence contrary to s 13 of the Children’s Protection Act 1993 (CP Act). Subject to certain exceptions (none of which apply here), that section protects the identity of a notifier of child abuse or neglect or suspected child abuse or neglect. Child abuse or neglect is defined very broadly. A breach of that section is an offence.
Section 13 is interrelated with s 88 of the CP Act which prohibits, in part, the divulging of personal information relating to any person who is alleged to have threatened, neglected or abused a child. A breach of that section is also an offence.
Pursuant to s 16(1)(b) of the FOI Act, DECD transferred (in part) documents numbered 179-228 to the South Australia Police to make a determination about them because those documents were created by the South Australian Police Department.
An internal review pursuant to s 19 of the FOI Act confirmed the original decision of DECD in terms of the content of the documents that were released, but changed the basis of the exemption by revoking reliance on Clause 12, relying only on Clause 6(1) of Schedule 1 to the FOI Act (that is, information relating to third parties).
Ms Moore then sought an external review pursuant to s 39 of the FOI Act in relation to 24 documents. As at the time of that review, Ms Moore only sought access to certain documents from which information had been deleted by the agency, namely, DECD. The Ombudsman undertook the review as to whether the deleted information was exempt. Insofar as the Ombudsman took the view that deleted information was not exempt under Clause 6(1), he referred to the considerations that favoured disclosure. Those factors rightly favoured Ms Moore so as to enable her to understand the motivation of family members and the Department. I note the Ombudsman varied and reversed, in part, the decision of DECD. I also note that in a couple of instances reliance was, once again, placed upon Clause 12. Without reproducing the Ombudsman’s determination, the manner in which each document was dealt with is contained in para 34 of that determination. By that determination, some documents were released in full, some in part and some as being exempt (even though redacted copies had previously been disclosed because DECD had taken the view that they were only partially exempt).
The documents that remained in dispute for the purposes of the appeal were documents 26, 36, 39, 52, 53, 55, 65, 84, 88, 105 and 151.
Nature of the appeal
The right to appeal is pursuant to s 40 of the FOI Act. For the purposes of these proceedings, the section does not provide any criteria for an appeal to be allowed or dismissed. The appeal is in the Administrative and Disciplinary Division of the District Court. The powers of the Court are to be found in s 42E of the District Court Act 1991 which provides as follows:
42E―Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision‑maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal―
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
However, s 48 of the FOI Act provides this under the heading “Burden of proof”:
48―Burden of proof
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
The apparent tension between s 48 of the FOI Act and s 42E of the District Court Act can be resolved by an examination of their intended spheres of application. Section 48 places the burden on the agency to establish that its determination is justified having regard to the material then available to it. However, the material upon which the agency made its original determination may not be the same material that is before the District Court. Section 42E directs the Court to “…give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.” Those cogent reasons may be because the agency has failed to justify the determination or because the Court has received additional material. There may be other reasons as well, for example, where the agency has proceeded upon a misinterpretation of the legislation. For my part, I cannot depart from the determination now under challenge in the absence of a cogent reason or reasons.
Course of the appeal
In order to assist Ms Moore with the presentation of her arguments, I called on the respondent to address me first and justify the original determination. As part of the respondent’s argument, I received the affidavit of Ms J.R. Bagnall which attached unredacted copies of all documents the subject of the appeal. I received that affidavit to place myself in the same position as the original decision-maker.
Broadly speaking, there are two categories of document that remain in contention. The first group of documents are documents that are partially exempt. The second group of documents are documents that the Ombudsman has determined are wholly exempt. However, with this second group, the agency had in fact released portion of them so that the issue on this appeal is whether the remainder should be released.
As to the following documents numbered 55, 65, 84, 88, 105 and 151, the dispute is whether part of the documents are exempt. The material provided to me, as annexures to the confidential affidavit, had highlighted the part of the document that the Ombudsman has determined remain exempt.
Document 55
The Ombudsman determined that this information came within the “personal affairs” exemption provided in Clause 6(1) of Schedule 1 of the FOI Act. Clause 6(1) provides as follows:
6―Documents affecting personal affairs
(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
The definition of “personal affairs” in s 4 of the FOI Act is not intended to be exhaustive. As can be seen, to be an exempt document under Clause 6(1), apart from the document relating to “personal affairs”, it must also be demonstrated that the disclosure of such information would be unreasonable. The information in this document relates to a foster sibling and I agree that it would be unreasonable to disclose the information.
For the purposes of determining whether it would be unreasonable to disclose the information, I adopt the factors referred to in Victoria Police v Marke[1]:
[1] (2008) 23 VR 223 at para 19
•the nature of the personal information;
•the sensitivity (past and present) of the personal information;
•any view about disclosure expressed by any person to whom the personal information relates;
•the relationship between the personal information and any other information in the document;
•how the personal information was obtained by the agency (whether voluntarily, or involuntarily and whether or not in confidence);
•whether and to what extent the personal information was already known to the applicant;
•the nature of any interest which the applicant can demonstrate in –
• the information in the document other than the personal information; or
• the personal information.
Another interrelated factor is that information, once disclosed, may be disseminated without restriction to the world at large. The privacy of the person who is the subject of the information may be permanently and irreparably compromised (possibly attended by malice, although there is no reason to fear that in this case).
As noted, the information related to a foster sibling (who is not deceased) and it is likely that that person would not want the information disclosed without consent. Attempts to find the sibling concerned have not been successful. As the Ombudsman rightly noted, this information would not further Ms Moore’s understanding of her time in care.
Document 65
I agree with the Ombudsman’s determination for much the same reasons given for the previous document. However, the amount of personal information is much more extensive and does nothing to inform Ms Moore about her time in care. Clause 6(1) was the correct basis for exemption.
Documents 84, 88, 105 and 151
Although I agree in principle with the determination of the Ombudsman, the relevant name has been inadvertently disclosed in document 88. The Christian name has been deleted twice in one sentence, but the full name appears in the previous related sentence. Obviously both sentences are referring to the same named person. As I say, this appears to have happened by inadvertence but, it having happened, it would be futile to uphold the determination. All of these documents are interrelated and the name should be disclosed or, put another way, Ms Moore should be given complete copies of those documents.
Documents 26, 36, 39, 52 and 53
As to the remaining documents 26, 36, 39, 52 and 53, the Ombudsman determined that they were wholly exempt but they were originally released in a redacted form. The dispute therefore relates to the balance of the documents. The exemption relied upon is Clause 12(1) of Schedule 1, involving a combination of ss 13 and 58 of the CP Act. Particular reliance is placed upon the words “personal information” in s 58.
Documents 26 and 36
There is no doubt that the (same) information in both documents would amount to personal information within the meaning of s 58, but also s 13.
Document 39
The deleted portion does not relate to Ms Moore and would not assist her to understand her time in foster care. It relates to the personal thoughts of Mrs Moore and has nothing to do with the applicant.
Document 52
The deleted material again refers to one of Ms Moore’s foster siblings. It would not assist her to understand her time in care.
Conclusion
Ms Moore has always sought this information on the basis that she wished to learn as much as she could about her time in the care of her foster family. She was steadfast in that approach during her submissions to this Court. She argued that issues back then involving other children within the family may explain the way in which she was treated and therefore related to her. To some degree that is obviously correct but, at the same time, the legislation restricts disclosure in some circumstances. Apart from the specific sections dealing with those restrictions, the objects of the FOI Act reflect that approach. She also argued that it was unfair that she was not provided with everything. Again I understand her sense of unfairness but, in my view, she has not shown that the decisions of the Ombudsman were wrong.
With the exception of documents 84, 88, 105 and 151, Ms Moore has not demonstrated that there are cogent reasons to depart from the decision of the Ombudsman. With the exception of those documents, the decision of the Ombudsman is affirmed.