Vogel v Secretary, Department of Education

[2023] NSWCATAD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vogel v Secretary, Department of Education [2023] NSWCATAD 105

Hearing dates:

21 April 2023

Date of orders:

04 May 2023

Decision date:

04 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The respondent’s decision dated 28 November 2022 is varied to provide the applicant with access to the document titled “Ventilation Audit - Windows and Fans: (Faulconbridge Public School - 4354)”.

(2) The respondent’s decision is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – reasonable searches – no obligation to provide access by creating a new record

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Health Records and Information Privacy Act 2002 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Klaric v Commissioner of Police [2020] NSWCATAP 153

Leech v Sydney Water Corporation [2010] NSWADT 298

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Taylor v Destination NSW [2017] NSWCATAD 272

Ugur v Commissioner of Police [2020] NSWCATAD 293

Webb v Port Stephens Council [2018] NSWCATAP 224

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Peter Vogel (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00015839

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. These proceedings concern a request that Peter Vogel (the applicant) made to the Secretary, Department of Education (the respondent) on 22 September 2022 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act).

2. The applicant sought access to the following documents:

1. On 30 Dec 2021 SafeWork NSW sent a letter ref 1-442564 to The Proper Officer of the Department of Education and Communities regarding “an apparent work health and safety issue/s at Faulconbridge Public School, Grose Road, FAULCONBRIDGE, NSW, 2776… The alleged work health and safety issues:

- Workers and others (students) may be at risk in the workplace due to alleged inadequate controls from biological hazards and to manage the risk of infection to VOCID-19 – specifically it is alleged the school has not done everything reasonably practical to mitigate risk of COVID-19 infection, and the minimal mitigations previously in place will be further minimised next term…

In light of the issue/s being raised with SafeWork NSW we recommend that you conduct an assessment of the issue/s raised to determine whether you are meeting your work health and safety obligations. You must consult your workforce when developing the most appropriate way of managing the issue/s raised.”

Please provide me the:

a) Documents arising from this letter

b) The work health and safety risk assessment conducted

c) Consultation with the workforce regarding risk management

2. Information concerning the determination in the Ventilation Audit published 9/10/2021 that the sick bay at Faulconbridge Public School could safely accommodate 6 students, including but not limited to any measurements of ventilation openings or air flow of the sick bay.

3. Information concerning the determination in the Ventilation Audit published 29/10/2021 that this same sick bay can safely accommodate 19 students, including but not limited to documents concerning the need for reassessment, instructions given to external or internal consultants, any measurements of ventilation openings or air flow of the sick bay.

4. Documents arising from the article in The Conversation on Nov 8 2021 titled – “Schools need to know classrooms’ air quality to protect against COVID-19. But governments aren’t measuring it properly.”

5. Documents arising from the article in The Guardian on 3^rd Feb 2022 titled “’Like sardines’: experts question the results of ventilation audits at NSW schools.”

Decision at first instance

3. On 28 November 2022, the respondent issued a Notice of Decision under the GIPA Act and decided to provide access in part to some of the information sought under s 58, but that the information sought in parts 2, 3, 4 and 5 of the GIPA request were “not held”. The respondent stated, relevantly:

…I have decided:

- To provide access to part of the information (section 58(1)(a));

- That part of the information is not held by the department (section 58(1)(b)); and

- To refuse access to part of the information because there is, on balance, an overriding public interest against its disclosure (section 58(1)(d)).

4. The respondent stated that it conducted reasonable searches as required by s 53 of the GIPA Act and that it had located 61 pages of documents, which were disclosed with the decision. These documents were received from: (1) Blue Mountains Principal Network (pages 1 to 25); (2) Health, Safety and Staff Wellbeing (pages 26 to 30); and (3) School Infrastructure NSW (pages 31 to 61).

5. The respondent stated that pages 11, 14, 18 and 23 of the records contain personal information of third parties and that this information has been deleted from the information being released to the applicant. In making that decision, the respondent applied the public interest test as follows:

Public interest considerations in favour of disclosure

- There is a general public interest in favour of disclosure (section 12(1) of the GIPA Act);

- Disclosure of the information could help you understand the procedures and processes of the department; and

- Disclosure of the information could inform you about your concerns.

Public interest considerations against disclosure as contained in the Table at section 14 of the GIPA Act: disclosing the information could reasonably be expected to have one or more of the following effects:

- Reveal the personal information of other individuals (item 3(a)); and

- Contravene Information Privacy Protection Principle 18 under the Privacy and Personal Information Protection Act 1998 (PPIP Act) and/or a Health Privacy Principle 11 under the Health Records and Information Privacy Act 2002 (HRIP Act) (item 3(b).

Schedule 4 Clause 4 of the GIPA Act defines personal information. I am satisfied that the records reveal personal information of third parties because it is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information, and none of the exceptions at Clause 4 apply. The personal information reveals the names or health information of third parties, and the personal email addresses of staff members…

Disclosing the information without the consent of the third parties is likely to contravene the above information Protection and Health Privacy principles because the information was provided to the department for a specific purpose, namely, to manage the implementation of COVID-19 safety measures. To give you access under the GIPA Act is not in keeping with the purpose for which the information was collected. None of the exceptions under section 18 of the PPIP Act and/or Health Privacy Principle 11 of the HRIP Act apply to you.

Releasing the information would also provide you with private details of individuals mentioned in the records and as I am unable to impose any conditions on the disclosure under the GIPA Act, there is no way to protect the information.

These factors weigh strongly against disclosure.

6. The Respondent stated that s 54 of the GIPA Act requires it to consult with third parties to obtain their views before releasing their information where it is reasonably practical to do so, especially if it appears the person may reasonably be expected to have concerns about the disclosure of the information. It decided that it is not reasonably practical to consult with all individuals mentioned in the records because it is unable to readily locate their contact details.

7. In balancing the public interest test, the respondent stated that it gave strong weight to the public interest considerations in favour of disclosure , but that the public interest in protecting the privacy of third parties considerably outweighs the public interest in releasing that information. Therefore, there is an overriding public interest against disclosure of that information.

8. In relation to the “not held” decision, the respondent stated that “School Infrastructure” conducted the searches and advised that the safety of any given space is not calculated based on its dimensions and number of occupants and that the information sought in items 2 and 3 of the GIPA request is not held by the respondent.

Application for administrative review

9. On 13 January 2023, the Tribunal received the current application for administrative review, which raised the following grounds:

1. The respondent failed to provide information answering 1(a), 1(c), 2 and 3 of the request when it is inconceivable that no such information exists.

2. Documents provided refer to other documents which are clearly relevant but were not provided although those documents clearly answer 2 and 3 of the request.

3. I have asked for informal production of the above on three occasions since the decision and have had no response leaving me no option but to make this application.

Procedural matters

10. On 13 February 2023, Senior Member Montgomery conducted a case conference at which the applicant appeared in person and Mr A Bell, Crown Solicitor’s Officer, appeared for the respondent. He ordered the respondent to file and serve its evidence and submissions by 13 February (sic) 2023. He ordered the applicant to file and serve his evidence and submissions by 27 March 2023 and he directed the respondent to file and serve any evidence and submissions in reply by 14 April 2023. He listed the matter for hearing on 21 April 2023.

11. Those orders were later amended to correct the time for the respondent to file and serve its evidence and submissions to 13 March 2023.

The hearing

12. The matter came before me for hearing by way of AVL on 21 April 2023. The applicant appeared in person and Mr Bell appeared for the respondent.

13. I noted that on 10 February 2023, the Information and Privacy Commissioner advised the Tribunal that he did not seek to appear and be heard in the matter.

Respondent’s opening and evidence

14. Mr Bell stated that the applicant does not seek a review of the respondent’s decision that the information sought in items 4 and 5 of the GIPA request is “not held”. However, he disputes the “not held” decision in relation to item 1 and disputes that the respondent conducted reasonable searches for the information sought in items 2 and 3 of the GIPA request.

15. The respondent relied upon the Statement of Jenni Prendergast dated 6 April 2023. The applicant stated that he did not require Ms Prendergast to attend for cross-examination and her statement was admitted into evidence and marked Exhibit A.

16. Ms Prendergast stated that she is the Manager of the respondent’s Right to Access, Legal Services Directorate and that she has held this position since 2019. In response to the GIPA request, she caused searches to be made by the following areas within the respondent:

1. Blue Mountains Principal Network (which produced pages 1 to 25 of the documents that were released). Ms Helen Davis provided a signed search officer declaration dated 18 October 2022 and this was annexed to the Statement;

2. Health, Safety and Staff Wellbeing (HSSW) (which produced pages 26 to 30). Mr Andrew Hall provided a signed search officer declaration dated 11 October 2022 and this was annexed to the statement; and

3. School Infrastructure NSW (which produced pages 31 to 61). Mr Glenn Downie provided a signed search officer declaration dated 11 October 2023 and this was annexed to the statement.

17. Ms Pendergast stated that on 4 April 2023, Mr Hall sent her an email, which she annexed and marked “H”, which included the following information:

1. The HSSW team undertook key word searches of the relevant drives to find any records requested by the GIPA request, which returned no results.

2. There are no notes of consultation conducted with staff in relation to the ventilation in Faulconbridge Public School.

3. Each Ventilation Audit was conducted by Schools Infrastructure NSW and HSSW does not hold any information relating to it.

4. No document was ever provided regarding the document, notwithstanding the email to him on 23 February 2023 at 5:42.

5. The only documents which are held by HSSW in relation to the GIPA request have been identified and provided to the information team.

6. He has not seen the letter from SafeWork.

18. Ms Pendergast stated that on 6 April 2023, the R/Principal of the School, Mr Chris Pyne, confirmed to her that he and his staff had conducted a thorough review for documents responsive to the GIPA request and there was nothing further available, in particular, any letter from SafeWork NSW dated 30 November 2021 had not been located.

19. In relation to Schools Infrastructure NSW, Ms Pendergast stated that she was provided with copies of the audits for the purposes of preparing her statement and that these audits are publicly available. She stated, relevantly:

20. The First ventilation audit dated 9 October 2021 is annexed to this statement and marked “I”. The second ventilation audit dated 29 October 2021 is annexed to this statement and marked J.

21. Schools Infrastructure NSW were asked to do further searches in relation to the access application to confirm that no information was held. The searches identified a single further document, which I understand to be a spreadsheet of window measurements relating to rooms at Faulconbridge Public School. A copy of that document, converted to PDF, is annexed to this statement and marked “K”.

22. On 6 April 2023, a searching officer of Schools Infrastructure NSW confirmed to me by email that:

(a) The only further document available which relates to the ventilation audits is the spreadsheet of window measurements which is annexure “K”.

(b) Searches have been undertaken for a document discussed on 23 February 2023 by email relating to a further explainer document to assist discussions with SafeWork. That document could not be identified.

(c) Schools Infrastructure understands that the 29 October 2022 audit was prepared on the basis of actual window space (that is, all available windows being open). The first audit is based on the worst-case scenario assumption that there is 5% window space. We understand that this has been explained to Mr Vogel.

(d) Searches have been undertaken for any further comment regarding the two media articles. No further record could be identified. Schools Infrastructure NSW expects to be informed of any further media requests regarding ventilation.

23. A copy of that email is annexed to thus statement and marked “L”.

20. Mr Bell stated that in preparing for the hearing of the matter, he caused further enquiries to be made with the relevant officers of the respondent and that a further document was located. This is discussed in para 19 of Ex A and the respondent proposes that the Tribunal vary its decision in order to provide the applicant with access to this document.

Applicant’s opening and evidence

21. In relation to item 1(a) of the GIPA request, the applicant stated that it is “not credible” that no further documents resulted from the letter from SafeWork NSW to the respondent.

22. In relation to item 1(b) of the GIPA request, the applicant stated that the respondent’s decision “seems implausible” and he complained that the risk assessment that was conducted was “perfunctory” and “inadequate” and he expressed his view that there must be some document or evidence of a discussion about the issues that were raised in SafeWork NSW’s letter and that there should be a whole chain of correspondence that sets out who was to do what action.

23. In relation to item 1(c) of the GIPA request, the applicant stated that the letter from SafeWork NSW should have resulted in communications to the staff that his complaint had been made and requesting that they comment upon his complaint.

24. The applicant relied upon his statement dated 14 April 2023, in which he asserted, relevantly:

4. 29^th Oct 2021 A “V2” Ventilation Audit Report was issued for FPS, now showing R0024 55.4 SQM (capacity 154) and Sick Bay 13.57 SQM (capacity 19) (Annexure “C”). it was obvious to me there had been a mistake. Children would need to be sitting on each-other’s laps to achieve these densities of up to three per square metre.

5. 2 Dec 2021 I asked the Principal of FCS if I would measure the windows of classrooms so I could calculate the ventilation and confirm that the Department audits for our school were correct.

6. 7 Dec 2021, FPS Principal said she had referred my request to the School Infrastructure AMU, but there was no response. I found it bizarre that a Principal would need to obtain permission for a parent to measure windows.

7. 13 Dec 2021 I phoned our Director of Educational Leadership Helen Davis to complain that there had been no response to my request to measure windows. She said she would investigate.

8. 22 Dec 2021 I made a complaint to SafeWork NSW about WHS dangers due to inadequate Covid-19 precautions at the School (Annexure “K”).

9. 30 Dec 2021 SafeWork wrote to the Department of Education (Annexure M). this letter included “WHAT SHOULD YOU DO NOW? in light of the issue/s being raised with SafeWork NSW we recommend that you conduct an assessment of the issue/s raised to determine whether you are meeting your work health and safety obligations. You must consult your workforce when developing the most appropriate way of managing the issue/s raised.”

10. 23 Jan 2022 Sarah Mitchell said at a press conference “Last year we did quire an extensive audit of every single learning space in every single public school in New South Wales. No other state has been able to get to that level of detail when it comes to the ventilation needs of each and every learning space.”

11. 25 Jan 2022 Georgina Harrison (Secretary, Department of Education) said “We are the only state that has checked the airflow in every single learning space across our public school system. We know that there is adequate airflow that meets the World Health Organisation standards in every single classroom.”

12. 28^th Jan 2022 Glen Downie (Executive Director, Asset Management, NSW Department of Education) said “Last year we undertook an audit of all our schools, over 2,200 schools, and the focus of that audit was really around making sire that all our learning spaces with windows that operate to provide ventilation were working and ceiling fans that provide assistance with that ventilation were working and we got a lot of information together which allowed us to undertake work as required to make sure that every classroom in all our schools have sufficient natural ventilation which is still the recommended best means of ventilating classrooms.”

13. The Department’s website said for Term 1 2022 “All learning spaces in public schools have been checked to ensure appropriate levels of ventilation.”

25. The applicant also asserted that on 23 February 2022, SafeWork NSW visited the school and met with Helen Davis and other staff (Annexure P) and that on 27 February 2022, SafeWork NSW completed its investigation and stated:

16. …“Upon a review of the spaces within the school, it appears that the PCBU is complying with the controls as per the ventilation audit… I have formed the belief that the school is meeting their WHS obligations in respect to managing the risk of COVID-19 in the workplace” (Annexure O).

17. 2 March 2022 David Shoebridge MLC, at a NSW Legislative Council Budget Estimates hearing, asked Georgina Harrison about the ventilation audits. He asked her to explain why every audit showed that safe room occupancy was exactly 2 square metre in all 150,000 classrooms audited. Anthony Manning, Chief Executive, School Infrastructure NSW, answered, but was unable to explain why after auditing each space, everyone came out with exactly the same occupancy result. (Annexure Q). Anthony Manning said, “we did get into 150,000 spaces… we were also able to gather information on window sizes” (Q page 39).

Issues for determination

26. The Tribunal formed the view that the following issues required determination:

1. In relation to item 1:

1. Did the respondent receive the letter from SafeWork NSW dated 30 December 2021; and

2. If ‘yes’, did it conduct reasonable searches as required by s 53 of the GIPA Act.

2. In relation to items 2 and 3 – did the respondent conduct reasonable searches as required by s 53 of the GIPA Act.

Respondent’s written submissions

27. The respondent filed written submissions on 11 April 2023.

28. In relation to the “information not held” decision, the respondent stated that the Tribunal does not have power to review the adequacy of the searches that it conducted per se. It relied upon the Appeal Panel’s decision in Klaric v Commissioner of Police (NSW) [2020] NSWCATAP 153 (Klaric) at [33]:

[t]he question whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches” in accordance with s 53.

29. Nevertheless, the extent of the agency’s compliance with s 53 is a factor relevant to the Tribunal’s consideration of whether its decision, that government information is not held, is the “correct and preferable” decision: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].

30. There are conflicting decisions within the Tribunal regarding whether an applicant bears a practical onus of proving that there are reasonable grounds for believing that the requested information exists and is held by the agency: Amos v Central Coast Council [2018] NSWCATAD 101 (Amos (No 1)) at [39] and Webb v Port Stephens Council [2018] NSWCATAP 224 (Webb) at [37].

31. One line of decisions draws from the approach taken in Shepherd and Department of Housing, Local Government and Planning [1994] QlCmr 7; (1994) 1 QAR 464 (Shepherd), in relation to a similar question arising under Queensland legislation. On this approach, the Tribunal considers :

1. Whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and, if so,

2. Whether the search efforts made by the agency to locate such documents have been reasonable in all of the circumstances of the particular case.

32. This approach requires the applicant to “put some credible material or submissions before the tribunal which persuades the tribunal that an arguable case of that kind exists, “i.e. that there is further material”: Cianfrano v Director General, Department of Commerce (No 2) [2006] NSWADT 195 at [69]; Amos (No 1) at [39]; and Webb at [37].

33. A second line of decisions, beginning with Wojciechowska, considers this two-step approach to be “plainly wrong” and “at odds with” s 105 of the GIPA Act, which places the persuasive onus on the agency to justify its decision: at [39]. Following this line of decisions, the correct approach is to:

1. Identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues, including those derived from ss 53(1)-(5);

2. Determine whether the agency has proved any relevant factual issues on the balance of probabilities; and

3. Applying those findings, decide what the correct and preferable decision is.

34. Wojciechowska has received positive treatment at first instance: Ugur v Commissioner of Police [2020] NSWCATAD 293 at [21] per Senior Member Ludlow.

35. It is not necessary to prefer one approach over the other in the context of these proceedings. The key issue of fact, on either approach, is whether the respondent’s search efforts were reasonable in the circumstances: Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286 at [50] per Senior Member McAteer; and Seremitis v Commissioner of Police; Seremitis v Department of Communities and Justice [2020] NSWCATAD 317 at [42].

36. Finally, s 75(2) of the GIPA Act provides:

Providing access by creating new record

(1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2) An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following—

(a) make a new record of information held by the agency,

(b) update or verify information held by the agency,

(c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

37. In relation to item 1(a) of the GIPA request, the implicit decision is that there is no further information held that is within the scope of the request. The evidence indicates that the relevant areas of the respondent have not been able to locate any documents arising from the said letter from SafeWork NSW to the respondent. However, it has released information relating to safety audits that immediately follow the date provided in this item. The search officer of HSSW has specifically confirmed that it has been unable to locate the said letter and understands that it was never provided to HSSW.

38. The respondent provided an inspection report dated 24 February 2022 issued by SafeWork NSW, which is close in time to the date nominated by the applicant. The documents released to the applicant are centred around late-February 2022 and it can be inferred that searches for emails which have produced that correspondence would also readily pick up emails specifically directed to the letter described in the GIPA request – if that information was held.

39. The NSW Cabinet document released to the applicant suggests that the respondent took the position that the vast majority of classrooms have sufficient air changes through natural ventilation to operate safely. In that context, it is not surprising that the searches undertaken do not reveal sources of staff consultation. Rather, the policy documents reveal that the respondent was implementing ventilation systems.

40. In relation to item 1(b), the respondent stated that its decision is, strictly speaking, that this information is not held, this is because its searches have not identified a work health and safety assessment tied to that letter. However, it has identified a closely contemporaneous COVID management risk assessment that was conducted by the R/Principal of the School, Mr Pyne. He personally confirmed with the Right to Access Unit that no further information within the scope of this request is held.

41. In relation to item 1(c), the respondent decided that this information is not held. However, it is important to differentiate “consultation” (where staff members are asked to provide their views about proposed COVID risk settings) and communications where staff are informed. Documents in the latter category have been released to the applicant and HSSW has specifically confirmed that no information regarding consultation is held. Further, the documents released to inform staff as to COVID-19 settings do not refer to or imply the existence of a consultation process. Accordingly, there is no reason to think that further information is held and the Tribunal may be satisfied that reasonable searches have been undertaken.

42. In relation to items 2 and 3 of the GIPA request, the respondent decided that information relating to window measurements, which has been described as a measurements spreadsheet, should be released to the applicant, but that no other information is held.

43. The respondent stated that there are two documents that have been made publicly available by Schools Infrastructure and that Schools Infrastructure has indicated that the difference between the two audits us that the first audit assumed 5% window space and the second audit was calculated by reference to actual window space. The measurements relevant to the second audit had now been provided to the applicant.

44. The respondent stated that Schools Infrastructure has searched its files for any document relevant to the audits and this produced one spreadsheet. It argued that the appropriate inference is that the measurements were inputted directly into the audit document, which did not require the creation of ancillary document. Whilst the respondent holds information within items 1 and 2, it is not required to create a document that explains the audits for the purposes of the GIPA Act and it is apparent that the information has been provided to the applicant by way of explanations.

45. Accordingly, the respondent argued that the Tribunal should affirm its decision in part.

Applicant’s written submissions

46. The applicant filed written submissions on 19 April 2023.

47. In relation to item 1 of the GIPA request, the applicant argued that it is “simply inconceivable” that SafeWork’s letter would simply have been forwarded to the Principal without also being referred to HSSW, the respondent’s legal department and others and it is “not credible” that the respondent failed to do what SafeWork NSW asked and what is required under the WHS Act, namely “conduct an assessment of the allegations made in consultation with the workforce”. He asserted that this must have resulted in documents being created and filed by HSSW, legal and other areas of the respondent. The letter said that an Inspector may visit the school in the future, so if nothing else, the respondent must have kept records of action taken in response to the letter as evidence of steps taken in compliance with their legal obligations. He stated that it “would clearly be in breach of the WHS Act” for the respondent to disobey the instruction of SafeWork NSW and their obligations under the WHS Act to conduct a safety audit in consultation with staff on the premise that the PCBU “took the position that nothing needed to be done.”

48. The applicant also stated:

25. The Department should have no difficulty finding the documents “arising from this letter.” If SafeWork were to follow up on its letter by sending an Inspector and saying “show me what you did in response to our letter” the Department ought to be able to quickly and comprehendingly provide proof that they have done what they were asked to do and discharged their legal obligations.

26. In terms of the legal principles discussed by Department in RS. 16-22 there are reasonable grounds to believe the requested documents exist, are easily found and the Department has not made reasonable efforts to find them.

49. In relation to items 2 and 3 of the GIPA request, the applicant noted that the report that Andrew Hall promised to send in his email dated 23 February 2022 has not been provided. He argued that it is “not credible” that the respondent does not have a single document explaining how the occupancy numbers for each of the rooms listed in the ventilation reports were determined. He asserted that many documents must have been created and asked “have these been deleted?” It is also not credible that the respondent does not have a single document explaining why the school was reassessed or how it satisfied itself that the sick bay could safely accommodate 19 children. If the school was reassessed there must have been instructions issued to the people involved, either school staff or external consultants. He also argued that any documents held by external documents are covered by s 12(d) of the GIPA Act and must be produced. Therefore, there are reasonable ground to believe that the requested documents exist, are easily found, and that the respondent has not made reasonable efforts to find them.

50. The applicant argued that the Tribunal should set aside the respondent’s decision that the information sought in items t, 2 and 3 of the GIPA request be set aside and that it should conduct reasonable searches and provide him with the requested information within 14 days. He also argued that if the respondent maintains that any of the requested information does not exist, the respondent should provide the Tribunal with an affidavit explaining its absence.

Respondent’s written submissions in reply

51. The respondent filed written submissions in reply on 29 April 2023.

52. In relation to item 1(a), the respondent noted that the relevant letter was apparently sent to it by post and it was not directed to any particular contact and it stated:

5. The SafeWork internal notes tend to confirm that there was no further correspondence between the department and SafeWork. There was telephone contact in mid-to-late February 2022 and a site visit conducted on 23 February 2022. The department has released an Inspection Report dated 24 February 2022. On 27 February 2022, a SafeWork Principal Inspector wrote to Mr Vogel by email, which included: “I have formed the believe [sic] that the school is meeting their WHS obligations in respect to managing [the] risk of COVID-19 in the workplace.”

6. The SafeWork notes refer to three Departmental employees who were: Chris Pyne (School Principal), Helen Davis (Director Educational Leadership) and Andrew Hall (WHS Leader). All three specifically confirmed they had undertaken the relevant searches and could not identify further documents. That tends to suggest the Department asked the right people to undertake searches, and that the access application was processed in a robust way.

53. In relation to item 1(b), the respondent stated that it has released a WHS Risk Assessment that was performed by the R/Principal of the school dated 28 January 2022 and that the Tribunal should infer that this constitutes the information held that is responsive to this item. It argued that there is no reason to think that any further WHS Risk Assessments were conducted.

54. In relation to item 1(c), the respondent stated that as the SafeWork inspection revealed no WHS issues, there is no reason to think that the school had to modify its procedures and therefore consult on any changes under the WHS Act. In any event, such information was within the knowledge of the WHS Team and the Principal, each of which confirmed that they searched for responsive documents. Mr Hall, the WHS Leader stated that no consultation was conducted.

55. In relation to items 2 and 3, the respondent stated that Mr Hall, the WHS point of contact and the key person in the email thread that the applicant has referred to) confirmed that no document was ever provided following that email exchange and as SafeWork concluded its investigation the very next day, it is unlikely that such a document was, or needed to be, developed.

56. The respondent concluded that it had conducted reasonable searches.

Respondent’s Oral Submissions

57. During the hearing, Mr Bell stated that he is instructed that the respondent did not receive the letter from SafeWork NSW. He also agreed with the Tribunal’s observations that the letter was sent during the Christmas/New Year period and that it was sent at about the time that the Respondent located its administrative offices from Darlinghurst to Parramatta. It was apparently not sent by email and there is no evidence that it was ever received by the respondent.

58. Mr Bell also stated that there is no obligation under the GIPA Act for the respondent to create a document that did not exist at the time the GIPA request was made, which explained the ventilation audits.

Applicant’s Oral submissions

59. During the hearing, the applicant maintained his argument that it “seems implausible” that there are no documents that respond to item 1(a) and he asserted that the WHS risk assessment that was provided in response to item 1(B) “is perfunctory”. He also stated that he “finds it hard to accept” that the respondent did not receive the letter from SafeWork NSW, but he has no evidence that it was received. He also argued that it is insufficient for the respondent to have simply conducted “keyword” searches.

60. In relation to items 2 and 3, the applicant disputed that he has ever received an explanation from the respondent regarding the ventilation audits. However, when the Tribunal put to him that the respondent’s evidence was that he had been given an explanation, he replied that he “was told in general terms”, but that “there should be documents”. He therefore “demanded” all of the information sought in items 2 and 3.

Consideration

Legal principles

61. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

62. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

63. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

64. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

65. I am satisfied that the Decision dated 28 November 2022 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

66. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.

67. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

65. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

66. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

67. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

71. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

72. Section 14 relevantly provides:

14. Public interest considerations against disclosure

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

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

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

73. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

74. Section 14(2) of the GIPA Act provides:

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

75. I note that the applicant is not seeking administrative review of the respondent’s decision that there is an overriding public interest against disclosure of the information that has been withheld from the information provided to him to not disclose certain information from him based upon public interest considerations public interest grounds.

76. Section 53 of the GIPA Act provides:

Searches for information held by agency

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

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

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

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

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

77. Section 61 of the GIPA Act provides:

Notice of decision to refuse to provide access

Notice of an agency’s decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following—

(a) the agency’s reasons for its decision,

(b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based,

(c) the general nature and the format of the records held by the agency that contain the information concerned.

78. Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world.”

79. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

The scope of the GIPA request

80. There is no dispute regarding the scope of the GIPA request.

Did the Respondent conduct reasonable searches?

81. In Wojciechowska the Appeal Panel extensively reviewed the authorities relating to s 53 of the GIPA Act and provided the following summary:

44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

82. I have applied these principles to the current matter as follows.

Item 1(a) of the GIPA Request

83. I note that this item seeks “documents arising from” a letter from SafeWork NSW to the respondent dated 30 December 2021.

84. The respondent’s evidence that that searches were conducted by relevant search officers and that no copy of this letter was located. The applicant stated that he finds it hard to accept that the respondent did not receive this letter.

85. However, there is no evidence before me that provides a safe climate for finding that the respondent received this letter. It follows that I am satisfied that the respondent conducted reasonable searches and that it does not hold any documents that are responsive to this request.

Item 1(b) of the GIPA Request

86. I note that while the respondent provided the applicant with a copy of the WHS Risk Assessment that it conducted in early 2022, the actual request seeks a work health and safety assessment that was conducted in response to the recommendation contained in SafeWork NSW’s letter to the respondent dated 23 September 2022.

87. For the reasons set out above, I am satisfied that the respondent did not receive the letter from SafeWork NSW dated 30 December 2022 and that it did not conduct any work health and safety assessment in response to that letter.

88. However, I am satisfied that the respondent did conduct a WHS Risk Assessment in early 2022, which was located by a search conducted in response to the GIPA request and that this has been produced to the applicant.

89. Accordingly, I am satisfied that the respondent conducted reasonable searches to locate information sought in this item and that no further information is held by the respondent.

Item 1(c) of the GIPA Request

90. This item sought “records re consultation with workforce regarding risk management”, but the “consultation” that was referenced is specific to the assessment described in item 1(b).

91. I have found that the respondent did not receive the letter from SafeWork NSW dated 30 December 2021 and that no work health and safety assessment was conducted in response to the recommendation contained in that letter. Accordingly, I am satisfied that no documents that are within the scope of this item are held by the respondent.

92. In any event, I accept the respondent’s evidence that while a SafeWork NSW Inspector attended the school in early 2022, no WHS issues were revealed. As no changes or modifications were required to be made to the school’s practices, there was no basis for any consultation under the WHS Act. I accept Mr Hall’s evidence that no consultation was conducted.

Items 2 and 3 of the GIPA Request

93. It appears that the basis of the dispute regarding these items is the applicant’s belief that the respondent should hold documentation that explains the information contained in the ventilation audit reports dated 9 October 2021 and 29 October 2021, respectively.

94. The evidence before me supports a finding that the respondent conducted searches to locate information within the scope of these items and that the Audit Reports were located as a result of those searches.

95. However, subsequent to the date of the decision, and in preparation for the hearing, the respondent’s solicitor caused further searches to be conducted by Schools Infrastructure. These searches located a further document, being a Spreadsheet of Window Measurements and it was annexed to Ex A and marked “K”.

96. I note that this spreadsheet has been served on the applicant and that in an email to the respondent’s solicitor dated 6 April 2023, Brittany Kenaly (of School Infrastructure) stated, relevantly:

School Infrastructure has searched for all documents relating to the conducting of the ventilation audits at Faulconbridge Public School. The only further document that has been located is the attached spreadsheet of window measurements that was used to calculate ventilation capacity based on actual window space.

We have searched relevant email boxes and files to identify whether there is an explainer document or further analysis regarding the ventilation audits at Faulconbridge Public School. No document can be found. In particular, we are aware that on 23 February 2022, there was discussion of a further document to support discussions with SafeWork. Our searches (including of any further emails) could not locate any such document.

John Marfleet has confirmed that he is not aware of a document being provided which explains the difference between the two audits. However, our understanding is that the 29 October 2022 audit was prepared on the basis of actual window space (that is, all available windows being open). The first audit was based on the worst-case scenario assumption that there is 5% window space. We understand this has been explained to Mr Vogel…

97. Based on this evidence, I am satisfied that the respondent conducted reasonable searches to locate information within the scope of these items and that this information has been released to the applicant.

98. While the applicant seeks documentation that explains the difference between the two audits, the respondent’s obligation to provide access to information in response to the GIPA request does not require it to either make a new record of information that it holds (s 75(2)(a)) or create new information, or produce a new record of information, by deduction, inference or calculation from information that it holds or by any other use or application of information that it holds (s 75(2)(c)).

99. For these reasons, I am satisfied that the respondent has discharged its onus of proving that it conducted reasonable searches as required by s 53 of the GIPA Act.

Conclusion

100. In my view, the correct and preferable decision is that the respondent’s decision dated 28 November 2022 should be varied, to provide the applicant with access to the document titled “Ventilation Audit – Windows and Fans: (Faulconbridge Public School – 4354)”. The decision should otherwise be 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: 04 May 2023