White v NSW Department of Education and Training

[2009] NSWADT 154

CITATION:	White v NSW Department of Education and Training [2009] NSWADT 154 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Christine Patricia White RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083217
HEARING DATES:	13 January 2009
SUBMISSIONS CLOSED:	13 January 2009
DATE OF DECISION:	22 June 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents – adequacy of search
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Department of Education and Training v Mullett GJ v NSW Department of Education and Training [2008] NSWADT 310University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT L Watson, solicitor
ORDERS:	1.The decision under review is affirmed insofar as it concerns the documents identified as pages 98, 99, 100 and pages 167 to 182. 2.The decision under review is set aside insofar as it relates to the documents identified as pages 94 to 96. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009. 3. The decision under review, insofar as it relates to documents from the DET’s Legal Services Directorate, is remitted to DET for reconsideration. That reconsideration is to be made in accordance with the amended scope of request, which excludes from the scope of the original request all documents which the review officer considers, on their face, to be likely to be subject to a claim of legal professional privilege. That reconsideration is to be completed by 31 January 2010. 4.The decision under review is dismissed insofar as it concerns the failure to provide access to documents said to have been identified as existing by the documents identified as pages 180 and 181. 5.The matter is to be listed for a further planning meeting at 9.30 am on Tuesday 11 August 2009.

1 The Applicant applied to the Department of Education and Training ("the DET") under the Freedom of Information Act 1989 ("the FOI Act”) seeking access to documents held by the DET. Her request was in the following terms:

“I request access to all documents held by the NSW Department of Education and Training that contain information about my personal affairs. This includes but is not limited to:

1. Files ‘held' by HAHS that record meetings I had with staff, telephone conversations I had with Staff, letters that include information about me, minutes of meetings that referred to me or my affairs (e.g. meeting held at the school between parents and teachers following the banning of the P & C in 2005), emails referring to me, documents including my name that were sent to other DET offices or Departments and any other document that refers to me directly or indirectly.

2. Files ‘held’ by other DET offices with the information as mentioned in 1. , including Liverpool and Ingleburn Area Office (at Glenfield), SWS Regional Office and Bridge St office and any other office that holds information relating to my affairs. This includes

. minutes of a number of meetings that I held with Larissa Treskin in her role as SED at Glenfield and Kimble Fillingham as Regional Director

. documents relating to complaints made to Larissa Treskin in her role as SED and to Paul X. Whelan and Trevor Fletcher in 2004-2005 or sent to them in their investigations of these complaints or as a result of other matters.

. Any other document written or received containing my personal information or information about my affairs that is 'held’ by the DET and its Departments.

3. Files 'held’ by the Office of the Minister of Education that contain my personal information or information about my personal affairs.

I am happy to exclude the information already sent to me in response to my 'Application for documents under the FOI Act' …”

2 The application was not determined within the 21-day period allowed by the FOI Act. By virtue of section 24(2) of the FOI Act, the DET was therefore deemed to have refused the request. The Applicant requested an internal review of that deemed refusal. She was dissatisfied with the DET's initial failure to respond and wrote to the Ombudsman for assistance.

3 The DET advised the Applicant that an estimated 3000 documents needed to be assessed in order to determine her application. She agreed to reduce the scope of the application. Following intervention by Mr. Kosh from the Ombudsman's office, the Applicant also agreed to exclude other records. The agreed narrowed request (“the FOI request”) was documented in a letter from Mr Kosh to the DET as follows:

The documents assembled by the Department that are subject to Ms White's FOI application number several thousand pages. Following issues we discussed at our meeting on 5 February and to assist the Department to process Ms White's FOI application as quickly as possible I recently discussed with Ms White whether she was prepared to reduce the scope of her FOI application so that fewer documents would be subject to her application.

Ms White cooperatively agreed to narrow the scope of her FOI application. She therefore now only seeks access to any documents that relate to herself, such as reports, minutes of meetings, emails and file notes. She no longer wishes to obtain any documents that relate to her sons or any documents that have been compiled by the Department's Legal Services Directorate where such documents may well be subject to legal professional privilege.

4 The Applicant was subsequently provided with a determination of the FOI request. The determination, dated 24 April 2008 (“the Internal Review Determination”), was made by Mr Peter Cribb, a Senior Legal Officer in the DET’s Legal Services Directorate. Mr Cribb had previously acted as the manager of the DET’s Freedom of Information Unit.

5 Mr Cribb identified 572 pages of documents as falling within the scope of the FOI request. Mr Cribb determined that some of the documents were to be released in full whilst others were released in a form that had some material deleted.

The Application to the Tribunal

6 The Applicant has applied to the Tribunal for external review of the Internal Review Determination. In her written submissions she outlines the scope of her application as follows:

The Applicant submits that her Application to the ADT is for review of the determination in relation to the following decisions by the Respondent:

(A) Refusal of access to an unedited version of pages 94 - 96

(B) Refusal of access to pages 98 - 99

(C) Refusal of access to page 100

(D) Refusal of access to an unedited version of pages 167 - 183

(E) Refusal of access to all other relevant documents relating to the Applicant which were not covered by legal privilege.

(F) Refusal of access to the documents referred to on pages 180 -181 being:

- ‘a large number of complaints particularly with regard to English and Science, assessment tasks relating to her son who is currently in Year 12, and about procedures and policies at the school’ allegedly submitted by the Applicant

- The documents relating to when the applicant allegedly ‘lobbied strongly to the principal and the (then) superintendent to have a Science program review conducted at the school.’

- The ‘large number of complaints at the school and at the (then) district office’ which the Applicant alleged lodged.

7 In relation to those documents, Mr Cribb had stated:

I have been provided with five (5) bundles of documents that stand approximately 370 millimetres tall.

Four (4) of those bundles (together standing approximately 260 millimetres tall) consist of documents provided by either Ms Sandra Butler (Legal Officer) or Ms Kelly Morgan (Acting Legal Officer) of the Department's Legal Services Directorate in response to your initial request. That is, those bundles consist of documents which have been "compiled by the Department's Legal Services Directorate" and accordingly I do not propose to further consider those documents as part of this determination in view of your narrowing of the scope of your application as recorded above.

…

pages 94 to 96 These three pages consist of a briefing to the Minister for Education and Training regarding several issues related to Hurlstone Agricultural High School (the School). Only one of the issues concerned your personal affairs. The pages are released after deletion of material solely relating to those other issues.

pages 98 to 99 These two pages consist of a letter from the NSW Teachers Federation to the Director-General of the Department addressing a number of issues concerning the School. You are not named or referred to in the letter (although there is a reference to "a category of parent"). In my view, the letter does not contain any matter relevant to your request and access is refused on that basis.

page 100 This one page is a further letter from the NSW Teachers Federation to the Director-General of the Department addressing a number of issues concerning the School. You are not named or referred to in the letter. In my view, the letter does not contain any matter relevant to your request and access is refused on that basis.

…

pages 167 to 182 These pages consist of a submission to the Director-General entitled Issues relating to Hurlstone Agricultural High School over the last three years. Only a small part of the document contains any matter relevant to your request and access is refused on that basis in full to pages 168 to 179. Pages 167 and 180 to 182 are released in full except for the deletion of irrelevant material and the deletion of the name and particulars of a person (not being either yourself or a member of your family) on grounds allowed by Clause 6

8 The Applicant has conceded that the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 is authority for the proposition that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the FOI Act. Consequently, she concedes that the Tribunal does not have the jurisdiction to direct the DET to search for additional documents.

9 However, the Applicant submits that many of the pages identified by the DET, but to which she was not granted access, were covered by the FOI request and should have been supplied to her.

10 She says that the DET should not have excluded all the documents compiled by the DET’s Legal Services Directorate because the FOI request only excluded those document that was subject to legal privilege. It did not exclude any other document collected by the Legal Directorate.

Relevant legislation

11 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government.

12 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

13 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted.

14 Clause 6(1) of Schedule 1 of the FOI Act provides:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

15 Pursuant to section 61 of the FOI Act, the agency has the burden of establishing that its determination was justified.

16 The Tribunal's powers on review are found in section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). Section 63 of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may exercise all of the functions that are conferred or imposed on the DET.

The DET’s case

17 The DET relies on two affidavits by Mr Cribb sworn on 10 September 2008, documents identified as pages 98, 99; 100; and pages 167 to 182, as referred to in the Internal Review Determination, and written submissions. The pages 94 to 96 referred to in the Internal Review Determination were not provided.

Pages 98 to 99; page 100; and pages 167 to 182.

18 The DET has provided to the Tribunal original and as-released copies of these pages. It relies on reasons provided in the Internal Review Determination as supporting its assertion that the excised parts of the documents are outside the scope of the request, as that material does not relate to the Applicant’s personal affairs. With a single exception, the DET does not assert that this material is exempt pursuant to Schedule 1 of the FOI Act. On pages 180 and 181 the name and particulars of an individual has been deleted. The DET asserts that this material is exempt pursuant to Clause 6 of Schedule 1 of the FOI Act (“the Clause 6 material”).

19 Ms Watson submits that pursuant to section 25 of the FOI Act, an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. For this reason, the Applicant has been given access to those parts of pages 167 to 182 that concern her personal affairs but removed the Clause 6 material and those parts that do not concern her personal affairs.

20 The DET submits that he Tribunal should examine the documents and determine whether the excised material is within the scope of the application.

Documents that ought to have been considered by the Internal Review Determination but were not.

21 The DET submits that the Tribunal does not have the jurisdiction to deal with the question of whether a large number of documents that were collected but not considered in relation to the FOI request should have been considered by the Internal Review Determination.

22 The DET relies on the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 as authority for the proposition that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to sections 17 and 18 of the FOI Act. It says that the Court of Appeal decision applies to the issue of its failure to consider those documents.

Other Documents that exist or may exist.

23 The DET contends that the material released to the Applicant on pages 180 and 181 does not indicate identify any other relevant documents. However, the DET concedes that this material does suggest that other documents exist or may exist.

24 The DET argues that if other documents do exist, they would not be relevant to the Applicant’s FOI request as they would be outside the scope of the request. They would not relate to the Applicant’s personal affairs.

The Applicant’s case

25 The Applicant submits that she did not agree to narrow her request to the extent that the DET asserts. She says that she agree to narrow the scope of her request to only seek access to documents that relate to herself, and did not seek documents that may be subject to legal professional privilege. She did not agree to narrow her request to remove all documents compiled by the DET’s Legal Services Directorate.

26 She submits that once the documents had been located, they should have been considered to determine whether or not they were subject to a claim of legal professional privilege. If they were not subject to such a claim, then they were within the scope of her request and should have been provided to her.

27 In regard to the documents identified as pages 98, 99 and 100 the submits that the DET identified the documents as the subject of he FOI request and this provides evidence that the DET believes the documents relate to her. She submits that as the DET has not presented any evidence as to why the documents would be exempt under Schedule 1 of the FOI Act, she is entitled to an unedited version of these documents in response to her application.

28 The Applicant argued that she requested access to documents containing information about her personal affairs and not just edited sections relating to her. She asserts that if a document refers to her, it relates to her affairs and should have been provided to her in a complete form. She submits that as the DET has not presented any evidence as to why the documents would be exempt under Schedule 1 of the FOI Act, she is entitled to an unedited version.

29 The DET refused the Applicant access to an unedited version of the documents identified as pages 167-183 on the grounds that sections did not relate to her request or were exempt pursuant to Clause 6 of Schedule 1 of the FOI Act. The Applicant argued that with the exception of the Clause 6 material, the DET has accepted that this document contains information relating to the Applicant’s personal affairs and it has not provided any reason that the deleted sections of the document are exempt.

30 The Applicant submits that she has been given a significant prominence in this document. In the section ‘5. Parent Community’ she is the only individual parent named and there is considerable focus on issues that would not seem to have relevance to this document, including the confidential information identifying one of her patients as well as her alleged advocacy for another patient who had no connection whatsoever with the proclaimed purpose of this document being ‘Issues relating to Hurlstone Agricultural High School over the last Three years’.

31 She submits that she is entitled to be provided access to the entire document so that she can see the context for the use of the information relating to her personal affairs and why it has been given such significance in the report.

32 With reference to the Clause 6 material the Applicant submits that in order for the clause 6 exemption to apply, the DET must first establish that the document contains matters that concerns the ‘personal affairs’ of a person. She referred to the decision of Young v Wicks (1986) 13 FCR 85 at 89 where Beaumont J stated in relation to a similar provision to that in clause 6 contained in section 41 of the Commonwealth Freedom of Information Act 1982:

“In my opinion, none of the subject documents contain information relating to the “personal affairs” of the applicant within the meaning of s 41(1) of the Act. The reference to “personal affairs” of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual”.

33 She argued that the name of an employee and information about an employee when used in the context of that person exercising his/her ordinary vocational responsibilities has been found not to be information about the personal affairs of that person: Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 at 625. This reasoning has been applied by the Tribunal in A v Department of Health [2000] NSW ADT 59 and Department of Education and Training v Mullett [2002] NSWADTAP 13.

34 She submits that the Clause 6 material relates to the individual’s affairs in his role as an employee and not his personal affairs. She concedes that the last sentence on page 180 does relate to the ‘personal affairs’ of an individual. However, she says that it is necessary to consider whether the disclosure be unreasonable. She referred to the decision in GJ v NSW Department of Education and Training [2008] NSWADT 310, where the Tribunal stated at paragraph [40]

“Whether a disclosure is ‘unreasonable’ requires consideration of matters such as the nature of the information, the circumstances in which it was obtained, the likelihood of the information being information that the person does not wish to have disclosed without consent, and whether the information has any current relevance”

35 She points to the fact that the Clause 6 material is included in the section ‘5. Parent Community’ and is linked to the Applicant by indicating that the individual concerned was a patient of the Applicant. She says that therefore the Clause 6 material also relating to her ‘personal affairs’ as it refers to whom she chose to treat as a patient.

36 She further states that if she did in fact have a doctor-patient relationship with the individual, then this is information she would already know and it is unlikely that the individual would refuse consent to disclose it. However, if the name of the individual is not someone that she treated in this capacity, and then she is also entitled to know and make amendments so she is not linked to this individual. She says that there is no evidence provided that the Respondent approached the individual for consent to disclose this information.

37 She further states that even if the Tribunal decides that some documents are exempt documents, the decision in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 provides the Tribunal with a discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

38 The Applicant concedes that by virtue of the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors the Tribunal does not have the jurisdiction to direct the Respondent to search for additional documents other than those pages identified in the Internal Review Determination. However, she submits that many of the pages identified by the DET, but to which she was not granted access, were covered by her FOI request and should have been supplied to her.

39 She further submits that the Court of Appeal decision does not override the obligation for the DET to search for the documents initially in response to the FOI request and to give a determination as to whether access will be granted or not. Accordingly, until that is done and the documents found, the Respondent cannot make a determination on whether they contain any personal information or whether they would relate to her.

Discussion

40 The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it. In order to determine the correct and preferable decision, it is necessary to determine whether certain documents fall within the scope of the FOI request; the application of the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors, whether the Clause 6 material is exempt and if so whether the Applicant should nevertheless be given access to it.

41 For simplicity I propose to consider the application by reference to the categories identified by the Applicant ie

(A) Refusal of access to an unedited version of pages 94 - 96

(B) Refusal of access to pages 98 - 99

(C) Refusal of access to page 100

(D) Refusal of access to an unedited version of pages 167 - 183

(E) Refusal of access to all other relevant documents relating to the Applicant which were not covered by legal privilege.

(F) Refusal of access to the documents referred to on pages 180 -181

42 I have not been provided a copy of the documents identified as pages 94 – 96. I am therefore unable to determine whether or not these documents fall within the scope of the FOI request. In the circumstances, the appropriate order is to remit that aspect of the matter for redetermination by the DET.

Categories B and C

43 I have considered the documents that have been filed by the DET. I am satisfied that the documents identified as pages 98, 99 and 100 do not fall within the scope of the FOI request. The do not contain material concerning the Applicant’s personal affairs. Accordingly, the determination to refuse to provide her access to those documents is affirmed.

Category D

44 I have considered the document identified at pages 167 – 183. With the exception of those parts of the document that have been revealed to the Applicant and the Clause 6 material, I do not agree with the Applicant’s assertion that the document falls within the scope of her FOI request. The majority of this document concerns issues unrelated to the Applicant.

45 In my view, the Clause 6 material does not fall within the scope of the Applicant’s FOI request. The Clause 6 material refers to the Applicant in her professional capacity and the deleted material refers to the personal affairs of another individual. The applicants original request was for documents concerning her personal affairs. She then narrowed her request. In my view, documents concerning her professional affairs would not fall within the scope of the FOI request as there would need to be an expansion, not a narrowing of the request, if it were to include such documents.

46 In my view the fact that the Applicant would possibly know the identity of that individual because of a doctor-patient relationship would not prevent the Clause 6 material being exempt pursuant to Clause 6 of Schedule 1 of the FOI Act. However, I do not need to determine that issue as the material is outside the scope of the FOI request.

47 Accordingly, the determination to refuse to provide her access to the withheld material in the document is affirmed.

Category E

48 It is common ground that a considerable amount of material was provided to Mr Cribb by the DET’s Legal Services Directorate in response to the Applicant’s FOI request and that the material was not considered as part of the Internal Review Determination.

49 On the material before me, it is clear to me that Mr Cribb wrongly excluded that material from the Internal Review Determination. I am satisfied that the Applicant only narrowed her request to exclude documents that were subject to a claim of legal professional privilege. I also agree with the Applicant’s submission that once the documents had been located, they should have been considered to determine whether or not they were subject to a claim of legal professional privilege. If they were not subject to such a claim, then they were within the scope of her request. The correct approach would have been to then consider whether any other exemption applied and whether they should have been provided to the Applicant.

50 In my view, the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, department of Commerce & Ors has no application to that issue as the documents have been located. There is no issue regarding the sufficiency of the search undertaken by the DET.

51 In the circumstances, the appropriate order is to remit that aspect of the matter for redetermination by the DET.

Category F

52 This category concerns documents that the Applicant contends have been shown to exist but which have not been identified. I agree with the Applicant’s argument that the material released to the Applicant on pages 180 and 181 suggests that other documents exist or may exist. I also agree with her submission that until the DET had located the documents, it was in no position to make a determination as to whether they contain any personal information or whether they would relate to the Applicant.

53 However, in my view, this aspect of the determination concerns the adequacy of the search undertaken by the DET. As noted by the Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors the jurisdiction of the Tribunal conferred by section 53 of the FOI Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency’s documents made pursuant to sections 17 and 18 of the FOI Act.

54 I have no jurisdiction to consider this aspect of the application and so the appropriate order is that it be dismissed.

1. The decision under review is affirmed insofar as it concerns the documents identified as pages 98, 99, 100 and pages 167 to 182.

2. The decision under review is set aside insofar as it relates to the documents identified as pages 94 to 96. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009.

3. The decision under review, insofar as it relates to documents from the DET’s Legal Services Directorate, is remitted to DET for reconsideration. That reconsideration is to be made in accordance with the amended scope of request, which excludes from the scope of the original request all documents which the review officer considers, on their face, to be likely to be subject to a claim of legal professional privilege. That reconsideration is to be completed by 31 January 2010.

4. The decision under review is dismissed insofar as it concerns the failure to provide access to documents said to have been identified as existing by the documents identified as pages 180 and 181.

5. The matter is to be listed for a further planning meeting at 9.30 am on Tuesday 11 August 2009.

04/12/2009 - The original form of Order 3 has been revised by order of the Appeal Panel made 13 November 2009. The substituted Order now appears as Order 3. It was made with the consent of the parties. - Paragraph(s) Order 3