Spillane v Department of Family and Community Services
[2014] NSWCATAD 169
•10 October 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Spillane v Department of Family & Community Services [2014] NSWCATAD 169 Hearing dates: On the papers Decision date: 10 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed
Catchwords: Access to government information - conclusive presumption of overriding public interest against disclosure - legal professional privilege - children's privacy - parent's access to information Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009Cases Cited: Larsson v Office of Environment and Heritage [2014] NSWCATAD 136
Saggers v Attorney General's Department [2005] NSWADT 193Category: Principal judgment Parties: Gisela Spillane (Applicant)
Department of Family & Community Services (Respondent)Representation: G Spillane (Applicant in person)
A. Vassallo (Respondent)
File Number(s): 133205
reasons for decision
This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).
In June 2012, the Applicant applied to the Respondent, the Department of Family and Community Services, Community Services under the Government Information (Public Access) Act 2009 ("the GIPA Act"), seeking access to information about herself and her children.
In August 2012 the Respondent's Right to Information Officer, Terry Meader, determined that the Applicant should be given access to some of the requested information but that there were overriding public interest considerations against the disclosure of other information that prevented the Applicant being granted access.
In his reasons for the decision Mr Meader stated:
Section 9(1) of the GIPA Act provides that you have a legally enforceable right to access the information you have requested unless there is an overriding public interest against the disclosure of the information to you.
Schedules 1 and 2 to the GIPA Act provide that there is an overriding public interest against the release of certain types of government information.
Schedule 1, Section 10 provides that there is an overriding public interest against the disclosure of information contained in reports made to Community Services about children who may be at risk of harm (such reports are made under s 29 of the Children and Young Persons (Care and Protection) Act 1989).
I have therefore not released some child at risk reports to you In addition, where information from those child at risk reports is repeated in other documents I have also not released that information from the other documents.
Apart from Schedules 1 and 2, section 14 of the GIPA Act lists the only other factors I can take into account to determine whether there is any public interest against the disclosure of the information to you.
As the GIPA Act requires me to apply a public interest test, I must decide whether I consider that any of the factors at s 14 apply and whether on balance, those factors outweigh the public interest in releasing certain information to you I have identified the following considerations in favour of disclosing the information you have requested
(a) the relevant information is about you and your family, and there is a general public interest in individuals being aware of the nature of records held about them by Government agencies
(b) there is general understanding that the public interest is best served by transparency in Government decision-making - transparency is best achieved when access to Government records is permitted
(c) section 5 provides a general presumption in favour of the disclosure of government information and s 9 provides a legally enforceable right for individuals to receive access to Government information for which they have applied except where there is an overriding public interest consideration against the disclosure of the relevant information
I now outline public interest considerations I have identified against the disclosure to you of some of the information in our records
(a) Some of the information in our records was provided to Community Services in confidence by individuals and/or other agencies. The core business of Community Services is the protection of children and young people. In performing this function, Community Services relies heavily on receiving child at risk reports and other information from members of the public and other agencies. When receiving this information, Community Services assures people that the information will remain confidential. Clause 1(d) provides that there is a public interest consideration against the release of information if its disclosure could be reasonable expected to prejudice the supply of confidential information that facilitates the exercise of an agency's functions. Clause 1(g) provides that there is a public interest consideration against the disclosure of information that may found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence I have considered the factors in favour (outlined above) of releasing this information to you, against the effects of breaching confidentiality. Having given greater weight to the fact that the information was provided in confidence, I have decided that there is an overriding public interest against the disclosure of this information. If the public believe Community Services cannot be trusted to maintain confidentiality, it is reasonably likely that the public will simply withhold information from Community Services, leaving it unable to fulfil its child protection responsibilities effectively. This would threaten the safety of children and young people across NSW.
(b) Some of the information in our records pertains to decision making tools used by Community Services. Clause 1(h) provides that there is a public interest consideration against the disclosure of information that may 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) I have considered the factors in favour of releasing this information to you, against the effects of disclosing our some of our decision making processes. Having given greater weight to protecting the way in which incoming child at risk reports are assessed and managed, I have decided that there is an overriding public interest against the disclosure of this information, as it could affect the decision making capacity of Community Services section 14, table 1(h) relating to responsible and effective government
(c) Some of the information in our records is the personal information of other people - given that the file is about child protection matters much of this Notice of Decision (s.58 of the GIPA Act) personal information is highly sensitive. Clause 3(a) provides that there is a public interest consideration against revealing other people's personal information. In applying the public interest test to this information I have considered the factors in favour (outlined above) of releasing this information to you, against the effects of revealing other people's personal information. Having given greater weight to the need to protect other people's sensitive and personal information I have decided that there is an overriding public interest against the disclosure of this information.
(d) Lastly, some documents contain information about things other than the information you have requested. ...
In the schedule attached to his determination, Mr Meader identified documents to which access was granted in part and documents to which access was refused. In addition to the public interest considerations against disclosure that are set out above, Mr Meader also identified a conclusive presumption against disclosure under Clause 5 of Schedule 1 to the GIPA Act (legal professional privilege).
The Applicant sought an external review, firstly by the Information and Privacy Commission and ultimately by the Tribunal. She believes that she has a right to information which she says was used against her and her children in another forum. She was present during those proceedings and says that she is therefore is aware of the evidence that was given, the identity of persons who made reports and the controversies relating to the reports.
She has explained her motivation in regard to her request as follows:
On the 23 May 2008 I was forced to leave my residence with my two children, after receiving a directive by the officers of the Department. I could return only after a compulsory attendance at the Children's Court in Parramatta.
The informers disclosed themselves during direct conversations with me. The identity is not questioned and is not confidential. Mr Gill gave me a copy his affidavit and Inspector Hadley informed me he would be making a report to Community Services. This has been documented in my affidavit, Community Services has a copy of both affidavits.
There is nothing secret about the information I have requested. I am seeking further information about what was discussed at length with Inspector Hadley, Mr Gill, and Mr Walsh as well as during the court proceedings. ...
This application has nothing to do with any information in relation to any victim. To contend that the information is subject of any law seems ridiculous as the proceedings were specifically in relation to me and my children.
...
The documents will help clarify if the legal officers of the department were trying to genuinely assist two innocent children or create victims of them, to cover up their negligence or deliberate misreporting.
...
I wish to clarify crucial information to gain justice for two innocent Children, made victims by the very Department set up to protect them. Sections of the Law provide me an opportunity to gain Justice and that is all I wish to attain.
In relation to an alleged 'critical Incident' she contends that there have been seven different versions of the incident and yet, while the Respondent has prepared reports and provided information about this incident in the five and a half years have lapsed, no proper investigation has been carried out to determine this claim.
With some limited exceptions, copies of the documents to which access was refused, in part or in full, have been provided to the Tribunal.
The Respondent has asserted that section 29 of the Children and Young Persons (Care and Protection) Act 1998 ("the Children's Care and Protection Act") applies in relation to a number of documents. Other documents are said to be subject to a claim of legal professional privilege and that privilege has not been waived.
Relevant Legislation
The objects of the GIPA Act are set out in section 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:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) 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:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) 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.
It was not disputed that the information the subject of this application, is government information and is held by an agency: section 4(1) of the GIPA Act.
Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'
Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information:
The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
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
The public interest considerations against disclosure are set out in the Table to section 14 of the GIPA Act ("the Table"). Clause 1 of the table provides:
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a) prejudice collective Ministerial responsibility,
(b) prejudice Ministerial responsibility to Parliament,
(c) prejudice relations with, or the obtaining of confidential information from, another government,
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,
(f) prejudice the effective exercise by an agency of the agency's functions,
(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,
(h) 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).
Section 14 of the GIPA Act sets out that there is a conclusive presumption that there is an overriding public interest against disclosure of government information described in Schedule 1 to the GIPA Act.
Clause 5 of Schedule 1 to the GIPA Act provides as follows:
5 Legal professional privilege
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Clause 10 of the Schedule provides:
10 Care and protection of children
It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.
Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review. A decision made on internal review is a reviewable decision. A person aggrieved may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the ADT Act, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act.
In any review of a reviewable decision section 105 places the burden of justifying the decision on the agency concerned.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -
(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
The Respondent has provided to the Tribunal a certificate pursuant to Section 29 of the Children's Care and Protection Act ("the section 29 certificate"). The section 29 certificate, dated 9 October 2013, was signed by the A/Director, Legal Services, as a delegate of the Director General of the Respondent. It annexes a schedule of documents and certifies that:
"the documents identified in the attached schedule are reports to which s. 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 applies, or are reports/ documents which have been redacted to comply with s. 29(1)(f) of the Children and Young Persons (Care and Protection) Act 1998.
Section 29 of the Children's Care and Protection Act relates to the protection of persons who make child-at-risk reports to the Respondent. It requires the Respondent to ensure that information that may enable the identity of a source of a child-at-risk report is not disclosed without the consent of the person who made the report or by leave of the court: section 29(1)(f) of the Children's Care and Protection Act.
Moreover, section 29(1)(d) of the Children's Care and Protection Act provides that:
(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):
...
(iv) proceedings before the Civil and Administrative Tribunal
Section 29(1A) provides as follows:
(1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.
Issue before the Tribunal
Is there an overriding public interest against disclosure of the information sought by the Applicant in terms of section 13 of the GIPA Act?
Evidence
The Applicant relies on her own evidence.
The Respondent relies on written submissions and affidavit evidence provided by Mr. Meader. Mr Meader has annexed, on a confidential basis, an unredacted version of the documents containing the information which the Respondent has declined to provide to the Applicant.
The parties agreed that the matter should be determined on the basis of the material filed without the need for a hearing. Accordingly there was no oral evidence.
The Respondent's case
Section 105 of the GIPA Act places the burden of justifying the decision on the Respondent.
The Respondent has provided copies of most of the documents that have been withheld on the basis of a claim of legal professional privilege. As noted above, the Respondent has confirmed that it has considered whether to waive the claim of privilege and has decided not to do so. In the Respondent's submission those documents are captured by clause 5 of schedule 1 to the GIPA Act.
Mr Meader has provided evidence in regard to the contents of the withheld material and the context in which each was created. In relation to the documents that the Respondent has withheld on the basis of a claim of legal professional privilege, his evidence established the role played by the Respondent's legal advisors.
Unredacted copies of most of the documents have been provided to the Tribunal. However Mr Meader has stated that four documents (documents numbered 170/3, 174/2, 128/3, 60/3) that were described in the original schedule given to the Applicant have not been located. The Applicant has confirmed that she does not have a copy of those documents.
In the original schedule:
- Documents 60/3, 170/3 and 174/2 were described as Emails and were said to contain legal advice and to be subject to clause 5 of schedule 1 to the GIPA Act
- Document 128/3 was described as a File Note and it was said to be subject to clause 5 of schedule 1 to the GIPA Act
In a subsequent schedule annexed to submissions for the Respondent dated by its Legal Officer Mr Vassallo, Mr Vassallo stated that a decision was made to release Documents 174/2 and 128/3. The schedule further stated that Document 170/3 is part of a report from another agency who state clearly at the top of the report that it is "not to be provided to the offender or his family". Mr Vassallo submitted that there're is a public interest against disclosure pursuant to clauses (1)(d) and (g) of the schedule to section 14 of the GIPA Act.
I note that Documents 170/3 was in fact provided to the Tribunal. I agree with Mr Vassallo's description of that document.
The section 29 certificate concerns a number of documents that were identified in the Respondent's schedule. In the Respondent's submission those documents are captured by clause 10 of schedule 1 to the GIPA Act.
The Respondent's submission is that it is to be conclusively presumed that there is an overriding public interest against disclosure of each of the withheld documents. Accordingly, it submits that the determination to refuse to release the information should be affirmed.
CONSIDERATION
I have considered the material that the Respondent has provided to the Tribunal on a confidential basis.
The Table to section 14 of the GIPA Act considerations
Several of the withheld documents are said to have been withheld because there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Where information is withheld on the basis that release would reveal an individual's personal information, I do not understand the Applicant to be seeking that personal information. The section 14 table provisions that are said to be applicable are:
Section 14 1(d) - Prejudice the supply of information to the Respondent of confidential information which facilitates the agency's functions
Section 14 1 (g) - Found an action against the Respondent for breach of confidence
Section 14 1 (h) - 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).
Most of the withheld information has been withheld on the basis of one or more of these provisions, the information is also said to fall within the scope of one or more clauses of schedule 1 to the GIPA Act. Alternatively, it has been withheld on the basis that it is outside the scope of the access application.
Documents numbered 314-339; and 360-364 of volume 1 of the withheld material were provided to the Respondent in response to a request for information under section 248 of the Children's Care and Protection Act. This is information was supplied in confidence as is readily apparent from the face of the documents. The Respondent contends that there are overriding public interest considerations against disclosure pursuant to sub clauses 1(d) and 1(g) of the section 14 table.
Documents numbered 99-109 of volume 3 of the withheld material is identified as SDM risk Assessment Tools. The Respondent contends that the release of this information could prejudice the conduct of future child protection assessments. It would provide a basis for a person to prepare a rehearsed response in relation to a genuine investigation. The Respondent contends that there are overriding public interest considerations against disclosure pursuant to sub clause 14(1)(h) of the section 14 table.
Documents numbered 166-171 and 241-243 of volume 3 of the withheld material are identified as reports from another agency. It is stated clearly at the top of each report that it is not to be provided to the Applicant. The Respondent contends that there are overriding public interest considerations against disclosure pursuant to sub clause 14(1)(g) of the section 14 table.
I have considered these documents. I have considered the public interest considerations in favour of disclosure and weighed those considerations against the public interest considerations against disclosure. It is my view that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The decision to withhold those documents should therefore be upheld.
Clause 5 of schedule 1 to the GIPA Act
In regard to the documents that the Respondent has withheld on the basis of a claim of legal professional privilege, I am satisfied that the description provided is an accurate one for each document. I am also satisfied that legal professional privilege attaches to each document.
I note the description provided in relation to document 60 of volume 3 of the withheld material and that the Respondent has been unable to locate the document. I accept that as an email containing legal advice the document would be subject to clause 5 of schedule 1 to the GIPA Act.
I note that the Respondent has declined to waive that privilege and a decision in regard to whether it would be appropriate for the agency to waive privilege is not a reviewable decision. However, I also note that much of the material that has been withheld is of an historical nature, for example reports of stages of legal proceedings, and it is not readily apparent why the Respondent has continued to assert privilege over that material when it has decided to release other material that also attracted privilege. I would urge the Respondent to reconsider its position in regard to some of the withheld material.
I recently considered the application of clause 5 of schedule 1 to the GIPA Act in Larsson v Office of Environment and Heritage [2014] NSWCATAD 136. In that matter I accepted the agency's submission that once it is accepted that any document falling within the scope of the request is properly the subject of client legal privilege, the combined effect of section 5 and Clause 5 of Schedule 1 to the GIPA Act is to create a conclusive presumption that there is an overriding public interest against disclosure of the information. The words used in section 5 and clause 5 are very clear and do not invite any balancing of public interest considerations against a proper claim for legal professional privilege.
Privilege can be lost by misconduct. However, while the Applicant has alleged misconduct by officers of the Respondent and has alleged that she and her family have been affected by that conduct, it is not conduct of the kind referred to by the Tribunal's President in Saggers v Attorney General's Department [2005] NSWADT 193. The President said at paragraph [36]:
The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake ... The case law does not stand for the proposition ... that a failure to remain within the boundaries of statutory power ... is enough to give rise to the loss of legal professional privilege. Much more is required.
In the circumstances of this matter am not satisfied that the Applicant has established any misconduct that would warrant a finding that privilege has been lost. Further, I am also not satisfied that there has been any waiver of the privilege by any other means.
Clause 10 of schedule 1 to the GIPA Act
As noted above, the section 29 certificate concerns a number of documents that are said to fall within the scope of clause 10 of schedule 1 to the GIPA Act. Clause 10 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children's Care and Protection Act applies.
There is no basis on which I could conclude that the person who made each of the reports did not do so in good faith: see section 29(1) of the Children's Care and Protection Act. I am therefore satisfied that each of those reports is captured by clause 10 of schedule 1 to the GIPA Act.
If information falls within the scope of one of the clauses of Schedule 1 to the GIPA Act there is no need to balance the public interest factors in favour of disclosure. There is a conclusive presumption that the public interest does not favour disclosure of information of that kind.
In this matter, there is a conclusive presumption that the public interest does not favour disclosure of most of the withheld documents. In regard to the remaining documents that have been withheld I am satisfied that the information should not be released.
I am satisfied that the Respondent's determination to refuse to disclose the withheld information is therefore the correct and preferable one and it should be affirmed.
Order
The decision under review is affirmed
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 10 October 2014
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