Oakey v Director-General, Community Services Directorate (Administrative Review)
[2016] ACAT 137
•2 December 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
OAKEY V DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE (Administrative Review) [2016] ACAT 137
AT37/2016
Catchwords: ADMINISTRATIVE REVIEW - Freedom Of Information – statutory interpretation – sensitive information – protected information – mandatory and voluntary reporting
Legislation cited: Children and Young People Act 2008 ss 353, 354, 356 366, 424, 433, 842, 843, 844, 845 846, 846, 848, 852, 861
Child Protection Act 1999 (Qld), 13A, 13C, 13D, 140AB, 186,187, 188, 204
Freedom of Information Act 1989 ss 10, 13, 38, 59, 60, 62, 73,
Health Act 1993 ss 125
Income Tax Assessment Act 1997 (Cth) s 16
Cases cited:Allatt v ACT Government Health Directorate [2012] ACAT 67
Commissioner of Taxation v Swiss Aluminium [1986] FCAFC 10; FCR 321
Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80
Lapham and the Office of the Community Advocate (1998) 53 ALD 485
List of
Texts/Papers cited: Administrative Law, Douglas and Jones, 2002 4th edition
Tribunal: Presidential Member G McCarthy
Senior Member L Donohoe SC
Date of Orders: 2 December 2016
Date of Reasons for Decision: 5 December 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 37/2016
BETWEEN:
KATHERINE OAKEY
Applicant
AND:
DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
Respondent
TRIBUNAL: Presidential Member G McCarthy
Senior Member L Donohoe SC
DATE:2 December 2016
ORDER
The decision under review is confirmed in relation to those documents determined to be exempt documents pursuant to section 38 of the Freedom of Information Act 1989.
And the Tribunal notes:
The decision under review relates to the first of six tranches of documents that are the subject of the applicant’s request for documents dated 24 March 2016 made under the Freedom of Information Act 1989.
Signed
Presidential Member G McCarthy
delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Preamble
The Child and Youth Protection Service (CYPS) is a subdivision of the Office for Children, Youth and Family Support (‘OCYFS’) which is in turn a subdivision of the respondent.
The CYPS is responsible for carrying out child protection work in the ACT. That work includes responding to and dealing with child concern reports,[1] organising care and appraisals for children of concern[2] and bringing proceedings in the ACT Childrens Court under the Children and Young People Act 2008 (ACT) (the CYP Act).
[1] Section 353 of the Children and Young People Act 2008
[2] Section 366 of the Children and Young People Act 2008
On 2 July 2010, the ACT Childrens Court made interim and final Care and protection orders pursuant to sections 433 and 424 of the CYP Act in respect of the applicant’s son.
On 5 July 2011 the applicant’s son went to Hervey Bay in Queensland where he was placed for a time in the care of his biological father. At that time he received care, support and supervision from various agencies in Queensland which undertook and oversaw child-protection work in that State.
On 30 June 2015, the applicant’s son turned 18 years. In February 2016, he died in Hervey Bay.
The Application made pursuant to the Freedom of Information Act 1989
On 24 March 2016, the respondent received a request under the Freedom of Information Act 1989 (the FOI Act) from the applicant (the FOI request).
The request covered 49 files held by the respondent. For this reason, with the agreement of the applicant, the respondent processed the request in tranches of 5 – 7 files at a time.
On 24 May 2016, the respondent made a decision in relation to the first tranche of documents, comprising six files. The respondent attached the files, where documents had been released. The respondent also attached a schedule identifying the documents in the files and whether they had been released in full, or had not been released (wholly or in part) on the grounds that the document, in each case, was (wholly or in part) an exempt document.
On 6 June 2016, the respondent applied to the respondent for internal review of its decision where access had been refused wholly or in part.
On 13 June 2016, the respondent made its internal review decision in respect of the first tranche. By consent, the Tribunal is dealing with a review of that decision to the extent that it relates to documents determined to be exempt documents pursuant to section 38 of the FOI Act.
The Tribunal heard that aspect of the application on 9 and 10 November 2016.
The Role and Powers of the Tribunal
The application is made pursuant to section 60 of the FOI Act. The Tribunal’s role is in the nature of a merits review. In other words the Tribunal conducts its own inquiry, being a fresh inquiry, into whether the documents are exempt documents pursuant to section 38 of the FOI Act.[3] There is no presumption in favour of the respondent’s decision. The Tribunal’s role is to arrive at a correct decision based on the material before it.
[3] Administrative Law, Douglas and Jones, 2002 4th ed, p262
The Tribunal’s role, however, is confined to review of whether the documents are exempt documents. Unlike the decision maker (meaning the respondent in this case) who had a discretion under section 13 of the FOI Act to release a document even where documents are exempt, the Tribunal does not have that discretion. Section 62(2) of the FOI Act provides:
62Powers of ACAT
(2)Where, in proceedings under this Act, it is established that a document is an exempt document, the ACAT does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
Before dealing with the substance of this application, the Tribunal notes some relevant provisions of the FOI Act, together with the Tribunal’s observations as to how those provisions are relevant to this application.
Relevant Provisions of the FOI Act
Section 10 of the FOI Act provides:
10Right of access
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to—
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
Section 13 of the FOI Act provides:
13Access to documents apart from Act
Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents) otherwise than as required by this Act where they can properly do so or are required by law to do so.
Part 4 of the FOI Act, comprised of sections 32 - 47A, sets out the different grounds upon which a document is an exempt document.
Relevant for present purposes, section 38 provides:
38Documents to which secrecy provisions of enactments apply
A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.
Section 38 is not a ‘stand alone’ exemption provision. Its operation depends upon the existence of an enactment which has two features:
(a)First, it must apply specifically to information of a kind contained in the document; and
(b)Second, it must prohibit persons referred to in the enactment from disclosing information of that kind.
In this case, the respondent determined that section 38 was engaged through section 846 of the CYP Act.
Children and Young People Act 2008 – Relevant Provisions
Section 844 of the CYP Act defines protected information as follows:
844What is protected information?
(1)In this Act:
protected information means information about a person that is disclosed to, or obtained by, an information holder because the information holder is, or has been, an information holder.
(2)Without limiting subsection (1), protected information includes sensitive information.
Section 845 of the CPY Act defines sensitive information as follows:
845What is sensitive information?
(1)For this Act:
sensitive information means any of the following:
(a)care and protection report information;
(b)care and protection appraisal information;
(c)interstate care and protection information;
(d)family group conference information;
(e)contravention report information;
(f)information prescribed by regulation.
NotePrenatal report information is also sensitive information (see s 365).
(2)In this section:
care and protection appraisal information means information—
(a)in a record of an appraisal; or
(b)that would allow information in a record of an appraisal to be worked out; or
(c)in a report (an incident report) to the public advocate under section 507 (Public advocate to be told about action following appraisals); or
(d)that would allow information in a record of an appraisal or incident report to be worked out.
care and protection report information means information—
(a)in a child concern report; or
(b)received by the director‑general under section 360 or section 361; or
(c)in a record that relates to—
(i)a notification under the Children’s Services Act 1986, section 103 (as in force at any time); or
(ii)a report under the Children and Young People Act 1999, section 157A, section 158 or section 159 (as in force at any time); or
(iii)any other information received by the director‑general under the Children and Young People Act 1999 about the suspected abuse or neglect of a child or young person; or
(iv)any information received about the suspected abuse or neglect of a child or young person at any time an ordinance was in force in relation to child welfare; or
(d)that would allow information mentioned in paragraph (a), (b) or (c) to be worked out; or
(e)that identifies a person as a person who gave the information mentioned in paragraph (a), (b) or (c); or
(f)that would allow a person’s identity as a person who gave the information mentioned in paragraph (a), (b) or (c) to be worked out.
contravention report information means information—
(a)in a confidential report made under section 876 (Confidential report of contravention of Act); or
(b)that would allow the information in a confidential report to be worked out; or
(c)that identifies a person as a person who made a confidential report; or
(d)that would allow a person’s identity as a person who made a confidential report to be worked out.
family group conference information means information—
(a)about anything said or done to facilitate, or anything said or done at, a family group conference arranged under section 80 (2); or
(b)information in a family group conference agreement, or in a family group conference outcome report, that relates to a family group conference arranged under section 80 (2); or
(c)information that would allow information mentioned in paragraph (a) or (b) to be worked out.
NoteFamily group conferences are dealt with in ch 3 and ch 12.
interstate care and protection information means information—
(a)in a report (an interstate care and protection report) made under a provision of a law of a State corresponding (or substantially corresponding) to section 354 (Voluntary reporting of abuse and neglect), section 356 (Offence—mandatory reporting of abuse) or section 362 (Prenatal reporting—anticipated abuse and neglect), that is provided to the director‑general under a section corresponding (or substantially corresponding) to—
(i)section 852 (Director‑general—giving information to person under corresponding provisions); or
(ii)section 861 (Information sharing entity—giving safety and wellbeing information to director‑general); or
(b)that would allow the information in an interstate care and protection report to be worked out; or
(c)that identifies a person as a person who made an interstate care and protection report; or
(d)that would allow a person’s identity as a person who made an interstate care and protection report to be worked out.
Section 846 is the provision relied upon by the respondent as engaging section 38 of the FOI Act. It creates an offence of divulging sensitive information (as defined by section 845 of the CYP Act). It provides as follows:
846Offence—secrecy of protected information
(1)An information holder commits an offence if the information holder—
(a)makes a record of protected information about someone else; and
(b)is reckless about whether the information is protected information about someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2)An information holder commits an offence if the information holder—
(a)does something that divulges protected information about someone else; and
(b)is reckless about whether—
(i)the information is protected information about someone else; and
(ii)doing the thing would result in the information being divulged to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
Section 848 provides an exception to section 846 in respect to information given under another law, for example the FOI Act. It provides as follows:
848Exception to s 846—information given under another law
(1)Section 846 (1) (Offence––secrecy of protected information) does not apply to the making of a record of protected information if—
(a)the information is not sensitive information; and
(b)the record is made—
(i)in the exercise of a function, as an information holder, under another law in force in the Territory; or
(ii)under another law in force in the Territory.
(2)Section 846 (2) does not apply to the divulging of protected information if—
(a)the information is not sensitive information; and
(b)the information is divulged—
(i)under another territory law; or
(ii)in the exercise of a function, as an information holder, under another territory law. (emphasis added)
NoteOther legislation may provide for information to be given to people, including the following:
· Freedom of Information Act 1989, s 10 (Right of access) and s 38 (Documents to which secrecy provisions of enactments apply)
· Health Records (Privacy and Access) Act 1997, s 10 (Statement of principle regarding right of access), and s 14A (No access to health record relating to Children and Young People Act complaint etc).
What section 848(2) makes tolerably clear is this: although it is an offence under section 846 of the CYP Act to act as proscribed in relation to protected information, section 846(2) does not apply to the divulging of protected information if, relevantly, the information is not sensitive information.
So what is central to this application is sensitive information, as defined in the CYP Act. If a document sought by the applicant contains sensitive information,[4] it cannot be divulged.
[4] Section 848 of the Children and Young People Act 2008
The question for determination in this proceeding is whether the provisions of the CYP Act apply to information of the kind contained in the documents that were not released, wholly or in part, and prohibit persons referred to in these provisions from disclosing information of that kind. If that is so, in relation to each document, then section 38 is engaged and the document is an exempt document.
Because several other sections of the CYP Act assumed some importance in argument, it is also helpful to set out those provisions.
353Definitions—Act
In this Act:
child concern report means a voluntary report or a mandatory report.
mandatory report—see section 356.
prenatal report—see section 362 (2).
voluntary report—see section 354 (2).
354Voluntary reporting of abuse and neglect
(1)This section applies if a person believes or suspects that a child or young person—
(a)is being abused; or
(b)is being neglected; or
(c)is at risk of abuse or neglect.
(2)The person may report (a voluntary report) the belief or suspicion, and the reasons for the belief or suspicion, to the director‑general.
Note 1A person who gives information honestly and without recklessness under this section does not breach professional ethics and is protected from civil liability (see s 874).
Note 2Giving false or misleading information to the director‑general is an offence (see Criminal Code, s 338).
366What is a care and protection appraisal?
In the care and protection chapters:
care and protection appraisal, of a child or young person—
(a)means an appraisal of the child’s or young person’s circumstances; and
(b)may, but need not, include the director‑general carrying out 1 or more of the following activities:
(i)a visual examination of the child or young person or someone else;
(ii)an interview of the child or young person or someone else;
(iii)giving information to someone;
(iv)asking someone to give information to the director‑general;
(v)making inquiries about the child or young person or someone else;
(vi)arranging for a care and protection assessment of the child or young person or someone else;
(vii)asking the child or young person or someone else to attend a stated place at a stated time for the appraisal or a care and protection assessment;
(viii)asking the child or young person or someone else to comply with any arrangement made by the director‑general for the appraisal or a care and protection assessment.
842Definitions––Act and ch 25
(1)In this Act:
protected information—see section 844.
sensitive information—see section 845.
(2)In this chapter:
divulge includes communicate.
information means information in any form and includes advice.
Examples—information
1 a verbal opinion of a health practitioner
2 a written document
3 an electronic record
4 a verbal recommendation for action
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
information holder—see section 843.
State includes New Zealand.
843Who is an information holder?
In this chapter:
information holder means a person who—
(a)is or has been—
(i)the director‑general; or
(ii)the public advocate; or
(iii)an official visitor; or
(iv)a researcher for an approved research project; or
NoteApproval of researchers and research projects is dealt with in ch 22.
(v)someone else exercising a function, or purporting to exercise a function, under this Act (other than a judge or magistrate); or
(vi)someone else engaged in the administration of this Act; or
(b)has been given information under this Act by a person mentioned in paragraph (a).
NoteProtected information may be given to people under various provisions of this Act, including the following:
· s 497 (Annual review report—must be given to certain people);
· s 850 (Minister or director‑general—giving information to person about the person);
· s 851 (Minister or director‑general—giving information in best interests of child or young person);
· s 852 (Director‑general—giving information to person under corresponding provisions);
· s 855 (Director‑general—giving information to researcher);
· s 860 (Minister or director‑general—giving safety and wellbeing information to information sharing entity);
· s 865 (Giving protected information to court or investigative entity);
· s 865A (Giving protected information to police).
852Director‑general—giving information to person under corresponding provisions
The director‑general may give protected information to any person who is exercising a function, or otherwise engaged in the administration of, a provision of a law of a State corresponding (or substantially corresponding) to a provision of this Act if the director‑general considers that giving the information is necessary to allow the person to exercise the function to administer the law.
861Information sharing entity—giving safety and wellbeing information to director‑general
An information sharing entity for a child or young person may give the director‑general safety and wellbeing information in relation to the child or young person if the information sharing entity considers that giving the information is in the best interests of the child or young person.
The Evidence - Applicant
The applicant’s evidence was contained in the affidavit of Alan Hermon Oakey sworn on 27 October 2016.[5] Mr Oakey is the applicant’s father. He prepared the applicant’s case including comprehensive and helpful written submissions and he appeared on behalf of the applicant. Mr Oakey holds the applicant’s power of attorney.
[5] Exhibit A1
A substantial content of Mr Oakey’s sworn evidence concerned his grandson’s history and other matters by way of background. Although the Tribunal appreciated Mr Oakey’s desire to put before the Tribunal evidence of this nature and it was admitted without objection, it was not relevant to the Tribunal’s task. For this reason, the Tribunal has not commented on it in its reasons.
Although no objection was taken by the respondent to paragraph 18 of Mr Oakey’s affidavit, the Tribunal places no weight upon what occurred in 2007 regarding the applicant’s application at the time under the FOI Act, nor does it have regard to Mr Oakey’s submissions which rely upon that evidence. We are presently concerned with whether documents the subject of the present application are exempt documents pursuant to section 38 of the FOI Act, not what may or may not have occurred in another application 11 years ago.
As to the balance of Mr Oakey’s evidence, inasmuch as it was other than evidence of an historical nature, it consisted of criticism of the written evidence from one of the respondent’s witnesses and what might otherwise be fairly described as argument or submission, most of which was replicated in Mr Oakey’s written and oral submissions. The Tribunal accepted it, but as submission rather than evidence.
Mr Oakey’s affidavit sworn 8 September 2016 was not tendered in evidence, noting that it concerned his grandson’s history and other matters by way of background that were covered in Mr Oakey’s subsequent affidavit sworn 27 October 2016.
In later written submissions,[6] Mr Oakey on behalf of the applicant referred on numerous occasions to his ‘unchallenged’ evidence. As we have noted, much of what Mr Oakey describes as ‘evidence’ was argument or submission, not evidence in the strict sense of the word. It is not correct to assert that it was unchallenged. It was challenged by written and oral submissions made on behalf of the respondent.
The Evidence – the Respondent
[6] Written submission in reply filed 23 November 2016
The respondent relied upon the statement of Ms Bernadette Mitcherson made on 17 October 2016.[7] It and its attached schedules were admitted into evidence without objection. Ms Mitcherson is the Deputy Director-General of the respondent and a delegated decision maker pursuant to section 59(2) of the FOI Act.
[7] Exhibit R1
She set out the basis for the respondent’s claim for exemption pursuant to section 38 of the FOI Act made in the decision of the respondent of 13 June 2016. She referred to the relevant documents and identified them as appearing at T21-37.
She set out the background to this appeal and explained in terms of categories the nature of the documents in respect of which the section 38 FOI Act exemptions were claimed. She attached to her statement several schedules relating to the first tranche of documents. The schedules identified a folder number and a tab identifier. Each entry in each schedule described the relevant document, and whether documents were released in full, in part or whether full exemption was claimed. It then set out an outline or framework of the categories of the documents in generic terms.
The documents fell into several categories. They are as follows:
(a)Child concern reports;
(b)Documents which contain information derived directly from child concern reports, described as secondary documents;
(c)Queensland or interstate reports dealing with child concern reports employing various descriptions such as ‘report’ or ‘appraisal’, ‘notification’ or ‘assessment’ (being interstate equivalents of child concern reports).
Most of the documents in respect of which the respondent claimed exemption or partial exemption fell into the second category.[8]
[8] Ibid, paragraph 15
Ms Mitcherson was courteously cross-examined by Mr Oakey. However her evidence was not impugned in cross-examination. The Tribunal regarded her written evidence and the evidence she gave in cross-examination as reliable and truthful.
The respondent also relied upon the evidence of Dr Louise Bassett, who is a Senior Manager in the Child Youth and Family Services program of the Community Services Directorate. She was also the delegated decision maker under the subject FOI request.
Her evidence was contained in a written statement dated 10 November 2016. It was admitted into evidence without objection.[9] The purpose of her statement was to provide more detail about the claim for exemptions pursuant to section 38 of the FOI Act. Dr Bassett did this by expanding upon the description of the contents of the subject documents with which Ms Mitcherson had dealt in the schedules to her statement and which Ms Mitcherson had described, perhaps necessarily in generic terms, as categories rather than in the more specific or descriptive manner in which Dr Bassett dealt with the subject documents.
[9] Exhibit R2
Dr Bassett too was courteously cross-examined by Mr Oakey. Her evidence was not impugned in cross-examination and the Tribunal regards her written evidence and her evidence given in cross-examination as reliable and truthful.
The Applicant’s Submissions – Written and Oral
The applicant first submitted that, in order for the prohibition from disclosure under section 846 to apply, the information must be both ‘sensitive information’, as defined in the CYP Act, and also ‘protected information’, as defined in section 844(1).
Referring then to the definition of protected information in section 844(1), the applicant submitted that the information is not protected information because it was not disclosed to or obtained by an ‘information holder’, as defined in section 843:
843 Who is an information holder?
In this chapter:
information holder means a person who—
(a) is or has been—
(i) the director‑general; or
(ii) the public advocate; or
(iii) an official visitor; or
(iv) a researcher for an approved research project; or
Note Approval of researchers and research projects is dealt with in ch 22.
(v) someone else exercising a function, or purporting to exercise a function, under this Act (other than a judge or magistrate); or
(vi) someone else engaged in the administration of this Act; or
(b) has been given information under this Act by a person mentioned in paragraph (a).
The applicant submitted that section 844(2) did not cause ‘sensitive information’ to be also ‘protected information’. Relying upon the opening words of subsection (2) ‘Without limiting subsection (1)’, the applicant argued that section 844(2) made it clear that sensitive information can be protected information but it remains necessary to establish that the information is protected information, as defined in section 844(1), in order for the offence provision in section 846 to be engaged.
The applicant’s second submission was that, even if the information is sensitive information, and therefore protected information, to disclose the information to the applicant would not be an offence because the release of information in a manner authorised under the FOI Act could not be regarded as acting in a reckless manner. Accordingly nothing in section 846 prohibited disclosure authorised under the FOI Act, which meant that the documents were not exempt documents under section 38.
In support of the applicant’s second submission, the applicant relied upon the Tribunal’s decision in Allatt v ACT Government Health Directorate[10] in which at paragraph 97 the Tribunal said:
The Tribunal concludes that recklessness is an integral element of the offence in s 125 of the Health Act, and is not, as the respondent contended, a matter of “exceptions or qualifications” within the meaning of s 38 of the FOI Act. In making a release of information authorised by the FOI Act, an information holder would not be acting in a reckless manner and therefore no offence is committed under s 125(1) of the Health Act. Section 38 of the FOI Act is inapplicable as the information disclosed is not of a kind to which s 125 applies.
[10] [2012] ACAT 67 at [97]
In Allatt, the Tribunal was considering s 125 of the Health Act 1993, which (at the time) provided:
125Offence—secrecy of protected information
(1)An information holder commits an offence if—
(a)the information holder—
(i)makes a record of protected information about someone else; and
(ii)is reckless about whether the information is protected information about someone else; or
(b)the information holder—
(i)does something that divulges protected information about someone else; and
(ii)is reckless about whether—
(A)the information is protected information about someone else; and
(B)doing the thing would result in the information being divulged to another person.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2)This section does not apply to the making of a record or the divulging of information if the record is made or the information divulged—
(a)under this Act; or
(b)in the exercise of a function, as an information holder, under this Act.
(3)This section does not apply to the making of a record or the divulging of information if—
(a)the protected information is not sensitive information; and
(b)the record is made or the information divulged—
(i)under another territory law; or
(ii)in the exercise of a function, as an information holder, under another territory law.
(4)This section does not apply to the divulging of protected information about someone with the person’s agreement.
(5)An information holder must not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act.
NoteA quality assurance committee may give protected information to the Coroner’s Court (see s 43).
(6)In this section:
court includes a tribunal, authority or person with power to require the production of documents or the answering of questions.
produce includes allow access to.
The applicant acknowledged that the Tribunal’s comments in Allatt were obiter because the Tribunal determined that the documents were not sensitive information such that section 38 was not engaged, regardless of whether section 125 of the Health Act made it an offence to disclose them. However the applicant argued that, obiter notwithstanding, the Tribunal should follow Allatt because the reasoning in Allatt was unimpeachable,[11] had not been appealed and represents the law in respect of section 38 of the FOI Act in the ACT.
[11] Applicant’s written submissions from [18] – [20]
Put another way, relying on Allatt, the applicant argued that the information could be disclosed even if it is sensitive information without committing an offence and therefore the second limb of section 38 is not met with the result that the documents are not exempt documents.
The applicant’s third submission was that the withheld information was not sensitive information, as defined, and therefore it would not be an offence to disclose it. In particular, the applicant challenged the respondent’s determination that the information was ‘care and protection report information’, ‘care and protection appraisal information’ and/or ‘interstate care and protection information’ as each of those terms is defined in section 845.
The significant challenge was to the respondent’s submission that a number of the withheld documents in respect of which the section 38 FOI Act exemptions were claimed fell to be determined under the provision sub-headed ‘interstate care and protection information’.
The applicant filed written submissions[12] in reply to written submissions of a discrete ambit made by the respondent with leave.[13] While the applicant did address the respondent’s submissions relating to the question of ‘interstate care and protection information’, she also revisited the written and oral submissions made on her behalf by Mr Oakey in relation to the question of whether the reports were voluntary or mandatory reports as defined in the CYP Act and made submissions critical of the evidence of Ms Mitcherson and Dr Bassett. She also, ‘for completeness’, made two essentially new submissions.
[12] Dated and filed 23 November 2016 of some 16 pages with attached statutory extracts
[13] Dated and filed 17 November 2016 of some 3 pages with attached statutory extracts
As to the submissions relating to whether or not the subject Queensland material could be defined as voluntary or mandatory reporting of abuse, corresponding to section 354 or 356 of the CYP Act, the Tribunal need only deal with one because, in section 845 of the CYP Act, each is expressed to be in the alternative.[14]
[14] The word ‘or’ appearing between each description of voluntary and mandatory reporting
The applicant submitted that the information provided to the OCYFS by the Queensland agencies[15] did not fall within voluntary reports as defined in section 354 of the CYP Act. This was the material contained under cover of the ‘transmittal’ letter referred to by Dr Bassett and contained in folios 328-360.
[15] The Queensland Department (paragraph 10) and Youthcare (paragraph 12)
At paragraph 10 of her submissions, the applicant set out three reasons for why the reports from the Queensland Department could not be considered voluntary reports and two reasons for why the youth care information could not be regarded as voluntary reporting. The applicant then submitted that, upon an examination of the Queensland equivalent provisions relating to voluntary reporting,[16] they did not substantially correspond to sections 354 and 356 of the CYP Act, although Mr Oakey did concede that there was doubt whether or not section 13A of the Child Protection Act 1999 (Qld) (the QCP Act) did substantially correspond to section 354 of the CYP Act.[17]
[16] Sections 13A read with section 14 of the QCP Act
[17] Paragraph 9 of the applicant’s submissions in reply filed 23 November 2016.
The applicant then submitted that for the purposes of the definition of ‘interstate care and protection information’ in section 845(2) of the CYP Act, the QCP Act makes no provision for the general release of information that substantially corresponds to section 852 or 861 of the CYP Act. She submitted that the Queensland provision relied upon by the respondent as substantially corresponding (namely sections 186 and 187 of the QCP Act) were offence provisions and not general disclosure provisions. Moreover, she argued that section 186(2)(a) was concerned with the prohibition against disclosing the identity of a notifier and not with general disclosure.
She then argued that the reliance by the respondent on section 204 of the QCP Act read together with regulation 13 and schedule 2 was misguided because the section was contained in chapter 7 of the QCP Act, which concerned interstate transfer of orders and proceedings.
The concluding three paragraphs contain the two further submissions. They are not in reply to the submissions made by the respondent in respect of which leave was granted to the parties to make further written submissions. The submissions are essentially new. Ordinarily, the Tribunal would not have regard to these submissions as a matter of fairness because the respondent has not been afforded an opportunity to respond to them. However, we will have regard to them for this reason. They do not persuade us.
The first submission is unsound. It matters not whether the document containing the information was created after the applicant’s son turned 18 years, if the information related to the time he was a young person as defined in the CYP Act. If the information can be characterised as sensitive information at the relevant time, the fact that it may have been recorded subsequently does not of itself render it available for disclosure.
The second submission is based upon the fact that the applicant’s son resided in Queensland. It too is unsound. Section 6 is not relevant when one considers the nature of the definition of ‘care and protection appraisal’ in sections 366(b)(iv) to (vi) of the CYP Act and the very wide definition given to the word ‘information’ in section 842 of the CYP Act.
The Respondent’s Submissions
The respondent submitted that the law applicable to this application was authoritatively stated in Commissioner of Taxation v Swiss Aluminium.[18] At 324 Bowen CJ (in the plurality) held:
As expressly stated in s38[19] of the Freedom of Information Act, a document is entitled to exemption under s.38 if there is a prohibition from disclosure within the terms of that section ‘whether the prohibition is absolute or subject to qualifications.
[18] [1986] FCAFC 10 FCR 321 at 323-324
[19] The Commonwealth counterpart of section 38 of the FOI Act (ACT)
The respondent then invited the Tribunal either to distinguish or not to follow two early decisions, Lapham and the Office of the Community Advocate (1998)[20] and Allatt. Lapham can be briefly dealt with. We are persuaded by the respondent’s submission that Lapham is not applicable to this application and secondly, to the extent that it states a more general proposition, we do not have to decide that issue. Allatt is another matter. We will deal with it separately.
[20] 53 ALD 485 at 492-3
In its further written submissions filed on 17 November 2016, the respondent made submissions concerning the application of the definition of ‘interstate care and protection information’.
Dr Bassett gave evidence that the material identified in Ms Mitcherson’s schedule at folder 4 Tab F was received by the respondent under cover of letter at Folio 348.
That is the letter from the subdivision of the Queensland Department that maintained records regarding ‘child safety’. On its face, it is a pro forma covering letter used by the Department when sending material to third parties. It was referred to as the ‘transmittal’ letter. In that letter reference is made to sections 186-193 of the QCP Act, which provide for the confidentiality of child-protection information. Folios 3 to 8-360 are described in Ms Mitcherson’s schedule variously as ‘Queensland notifications’.
The respondent submitted that the term ‘notifier’ was the equivalent of ‘reporter’[21] in the CYP Act.[22] The respondent submitted that, on their face, those folios appear to be parts of forms designed for the purposes of notification and appraisal of possible child abuse incidents and so forth.
[21] See sections 354 and 356 of the CYP Act
[22] Section 186(1) QCP Act.
Section 186(2)(a) of the QCP Act provides as follows:
(a) in the course of performing functions under this Act or another child-welfare law or an interstate law of another State to another person performing functions under this act or a child welfare law or interstate law of another state
The respondent submitted that section 204 of the QCP Act defines ‘interstate law’ as meaning a law declared by regulation. Regulation 13 (and Schedule 2) of the QCP Regulations declares the ACT as a ‘participating state’, the CYP Act as an interstate law and the Director-General as the relevant officer for these purposes.
The respondent submitted that section 186(2) of the CYP Act authorises requests of a participating jurisdiction. The transmittal letter indicates that the subject material was provided as a response to a request from the ACT.
On its face, it was submitted, the material provided to the ACT appears to have been generated by the Queensland Child Protection Agency for its own purposes concerning the applicant’s son under the QCP Act. The respondent submitted that the provision of that material to a participating state upon request relating to a child who was also the subject of ACT orders was a performance of the Queensland agency’s function within the meaning of section 186(2)(a) of the QCP Act.
The respondent submitted that section 187(3)(b) also allows for information to be divulged for the purposes related to a child’s protection or well-being. Thus it was submitted by the respondent that the provision of the material upon request to the ACT as a declared participating state was also done for a purpose ‘related’ to the child’s protection or well-being.
For those reasons it was submitted by the respondent that sections 186 and 187 of the QCP Act substantially corresponded to sections 852 and 861 of the CYP Act for the purposes of the definition of ‘interstate care and protection information’ contained in section 845(2) of the CYP Act. For that reason the respondent submitted that Folios 3 to 8-360 were documents that contained ‘sensitive information’, ergo they are exempt.
Allatt
We have set out the applicant’s submissions in relation to Allatt. They do not persuade the Tribunal. Swiss Aluminium is a case decided by the Full Federal Court. It was decided after some judicial uncertainty as to the meaning and operation of section 38 of the Commonwealth Act, which is in virtually identical terms to section 38 of the ACT FOI Act. Swiss Aluminium settled that uncertainty and represented the state of the law at the time of the enactment of the FOI Act. In our view, it also represents the law in the ACT.
In Allatt, the subject information was held not to be sensitive information because the persons referred to in the documents were not ‘health care providers’ as defined in the Health Act. In substance, Allatt turned on that fact alone and, for that reason, it is distinguishable from the matter at issue in this application.
However, in Allatt, the ACAT went on to give reasons as to why it thought that Swiss Aluminium was distinguishable. It distinguished Swiss Aluminium because the prohibition provisions in section 125 of the Health Act contained the element of recklessness, unlike the prohibition contained in section 16 of the Income Tax Assessment Act (Cth) (the ITA Act).
Recklessness, the ACAT said, was therefore an integral element of the section 125 Health Act offence. With respect, it seems to us that in construing section 38 of the FOI Act and so distinguishing Swiss Aluminium in this way, the ACAT in Allatt placed an unnecessary ‘gloss’ or emphasis on the words ‘and reckless’ in section 125 of the Health Act in respect of which section 846 of the CPA is in substantially similar terms, when the focus, according to Swiss Aluminium must be on the nature of the information itself, rather than the elements of the offence created by the prohibition.[23]
[23] Swiss Aluminium at page 324 per Bowen CJ
In Swiss Aluminium, Bowen CJ cited with approval Kavvadias v Commonwealth Ombudsman,[24] which pointed out that the commodity being dealt with by section 38 was information, not the discipline or integrity of the officers. We agree.
[24] (1984) 1 FCR 80 at 85
The mental element, recklessness, is implied into section 16 of the ITA Act by the general law. It did not need to be express.[25] It is, as the respondent correctly pointed out, a feature of rather more modern drafting, particularly since 2002 when the ACT Criminal Code was enacted. Understood in that way, Swiss Aluminium was not distinguishable in the manner adopted by the ACAT in Allatt.
Consideration of Applicant’s Submissions
[25] Vallance v The Queen (1961) 108 CLR 56; Kural and the Queen (1987) 162 CLR 502 and He Kaw Teh and the Queen (1985) 157 CLR 523
We turn now to the applicant’s first argument that for section 846 of the CYP Act to apply the information must not only be sensitive information within the meaning of section 845 of the CYP Act, it must also be protected information within the meaning of sections 843 and 844 of the CYP Act. Section 843 of the CYP Act deals with who is an ‘information holder’. As subsections (a) (v), (vi) and (b) of section 843 make clear, the definition of ‘an information holder’ for the purposes of the CYP Act is wide.
Section 844 defines ‘protected information’. Subsection (2) provides that without limiting subsection (1), protected information includes sensitive information. The applicant submitted that subsection (2) did not provide that ‘sensitive information’ is automatically ‘protected information’.
That submission is unsound. Because sensitive information is included in the definition of protected information, it means that all sensitive information is - by definition - also protected information. The applicant’s reliance on section 843 of the CYP act is therefore irrelevant.
The real question is whether the subject documents contain ‘sensitive information’ within the meaning of section 845 of the Act. Here, the matter in issue is the definition of ‘interstate care and protection reports’.
The applicant submitted that the documents provided to the OCYFS by the Queensland department and Youthcare did not fall within section 845 of the CYP Act and were therefore not ‘sensitive information’ because there was no Queensland law substantially corresponding to section 354 of the CYP Act.
The applicant referred to section 13A (read with section 14) of the QCP Act as supporting her contention. Mr Oakey gave three reasons for his argument that the Queensland department reports fell outside section 354 of the CYP Act.
The applicant did not set out other sections of the QCP Act that, in addition to sections 13A and 14 are also relevant when determining whether these provisions, read together, substantially correspond to section 354 of the CYP Act.
They are sections 13C and 13D. When read together, those provisions pick up substantially all the elements of section 354 of the CPY Act. As such, it is the Tribunal’s view that the word ‘provision’ in section 845(2)(a) is not significant and that sections 13A, 13C and 13D of the QCPA substantially correspond to section 354 of the CYP Act.
The next question is whether or not sections 186 and 187 of the QCP Act correspond substantially with sections 852 and 861 of the CYP Act.
The word ‘substantially’ according to the Oxford English Dictionary means ‘for the most part or essentially’. Sections 186, 187 and 188 of the QCP Act deal with confidentiality in relation to the administration of the Act. The first provision deals with a prohibition on disclosing the identity of a ‘notifier’, which we take to have essentially the same meaning as a reporter for the purposes of sections 852 and 861 of the CYP Act. The second provision deals with the confidentiality of information obtained by persons involved in the administration of the CYP Act. The third provision deals with confidentiality of information given by persons involved in the administration of the CYP Act to other persons.
Section 852 of the CYP Act is also concerned with the notion of confidential information, with its reference to ‘protected information’ as defined in the CYP Act, which includes sensitive information with which we have dealt in some detail earlier. True it is, as submitted by the applicant, that those provisions of the QCPA are ‘offence’ provisions, but within sections 186, 187 and 188 are subsections, which provide exemptions to the divulging of confidential information.
Unlike sections 852 and 861 of the CYP Act, they are not general disclosure provisions. But they do provide for disclosure of confidential information in certain circumstances namely, to the extent necessary to perform the person’s functions under the Act and for the protection and well being of a child. Simply because they are not stand alone general disclosure provisions does not mean that there is not a provision of a law of a Queensland that substantially corresponds to sections 852 and 861 of the CYP Act.[26]
[26] See Sections 186(2)(a), 187(3)(a) and (b), 188(3)(b).
In our view those subsections of section 186, 187 and 188 of the QCP Act for the most part pick up the important elements of confidentiality of information and the enabling of the other person/entity to exercise the function to administer the law for the well-being of a child contained in sections 852 and 861 of the CYP Act.
The three reasons given by the applicant in paragraph 10 of her submissions in reply filed on 23 November 2016 are, in our view, ‘form over substance’ arguments and are not persuasive.
Moreover, they do not appear to take account of section 845(2)(b), (c) and (d) of the CYP Act, which are expressed in the alternative and provide – interstate care and protection information means information:
‘(b) that would allow the information in an interstate care and protection report to be worked out or;
(c) that identifies a person who made an interstate care and protection report; or
(d) that would allow a person’s identity as a person who made an interstate care and protection report to be worked out.’
It seems to us that, inasmuch as the three reasons relate to information provided by the Queensland department, that information would be caught by subsection (b) of section 845(2) of the CYP Act, if not also subsections (c) and (d). Similarly, as to the information provided by Youthcare, it too would be caught at least by subsection (b) of section 845(2) of the CYP Act.
Pausing, there is no evidence before us that Youthcare was not a ‘relevant person’ for the purposes of section 140AB of the QCP Act. All the applicant has done in this respect is to assert that its relationship with OCYFS was one that arose out of a contractual funding agreement. That does not establish that Youthcare was not a ‘relevant person’, so as to make good the assertion in paragraph 12(a) of the applicant’s submissions in reply that Youthcare could not make a voluntary report.
As to the second argument in paragraph 12(b), it does not matter that the Youthcare material passed to OCYFS was, strictly, a voluntary report. All that matters is this: was it material that contained sensitive information?
Section 845(2) of the CYP Act – care and protection report information means:
‘(iv) any information received about the suspected abuse or neglect of a child or young person at any time an ordinance was in force in relation to child welfare…’
The Documents Identified in the Schedules at T21-37
The Tribunal has considered the subject documents. It is true that many of them fall into the second category to which we referred above. Additionally, a great number of them replicate almost verbatim the information contained in documents that plainly contain sensitive information within the meaning of section 845 of the CYP Act.
Our conclusion is that all of the documents contain sensitive information within the meaning of section 845 of the CYP Act and are therefore subject to the prohibition contained in section 846 of the CYP Act. As such, the exemption provided for in section 848(2)(a) of the CYP Act does not exclude these documents from exemption. They are all exempt documents, wholly or in part, for the purposes of section 38 of the FOI Act.
Orders
For these reasons, the Tribunal will order that the decision under review be confirmed in relation to those documents determined to be exempt documents pursuant to section 38 of the Freedom of Information Act 1989.
………………………………..
Presidential Member G McCarthy
delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | At 37 of 2016 |
PARTIES, APPLICANT: | Katherine Oakey |
PARTIES, RESPONDENT: | Director-General, Community Services Directorate |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Dr D Jarvis |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy Senior Member L Donohoe |
DATES OF HEARING: | 9 and 10 November 2016 |
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