X v Director General, Department of Community Services & anor; Director General, Department of Community Services v X & anor (GD)

[2000] NSWADTAP 23

Appeal Panel

CITATION:

X -v- Director General, Department of Community Services & anor; Director General, Department of Community Services -v- X & anor (GD) [2000] NSWADTAP 23

PARTIES:

APPELLANTS
X
Director General, Department of Community Services

FIRST RESPONDENTS
Director General, Department of Community Services
X

SECOND RESPONDENT
The Premier of New South Wales

FILE NUMBER:

009003; 009004

HEARING DATES:

24/11/2000

SUBMISSIONS CLOSED:

11/24/2000

DATE OF DECISION:

12/06/2000

DECISION UNDER APPEAL:

Principal matter

BEFORE:

Needham CA - (Deputy President); Robinson MA - Judicial Member; Bolt M - Member

CATCHWORDS:

no question of law identified - relevant/irrelevant considerations

MATTER FOR DECISION:

Principal matter

FILE NUMBER UNDER APPEAL:

993062

DATE OF DECISION UNDER APPEAL:

12/30/1999

LEGISLATION CITED:

Freedom of Information Act 1989

CASES CITED:

X v Director -General, Dept of Community Services [1999] NSWADT 141
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93

REPRESENTATION:

APPELLANT/FIRST RESPONDENT
In person
FIRST RESPONDENT/APPELLANT/SECOND RESPONDENT
M Adofaci, solicitor advocate

ORDERS:

1. Appeal 009003 is dismissed with no order for costs; 2. Appeal 009004 is allowed in part with no order for costs; 3. The agency is to give access to the FOI Applicant to the entries in documents 49, 50 and 51 appearing under the heading "Agencies Involved".

1 The Appeal Panel has before it two appeals from a decision of the Tribunal dated 30 December 1999 in the matter of X v Director -General, Dept of Community Services [1999] NSWADT 141.

2 Upon an application for review under the Freedom of Information Act 1989 (“FOI Act”), the Tribunal below ordered that the applicant be given access to the documents of the agency which had been sought except for three documents from which it was held that the agency was entitled to delete certain material. In the Tribunal below the applicant was described as “X” for reasons which remain applicable because of the nature of the notifications to which the documents relate. They relate to two notifications made or purportedly made to the agency under the Children (Care and Protection) Act 1987 (“Child Protection Act”). The applicant has requested the Appeal Panel that he be described by name in the reasons for judgment of this Appeal Panel. However, we consider that the reasons for suppression of his name by the Tribunal below apply equally to our reasons, which, when read in conjunction with the reasons below might impact upon the privacy of his family.

3 As the proceedings raised in part claims that documents were restricted documents by clause 4(1) of Schedule 1 of the FOI Act, the Appeal Panel, prior to its determination of the appeals, notified the Minister administering the FOI Act, who is the Premier of NSW, under section 57(5) of the FOI Act and 67(2)(e) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). By virtue of s 57(6) of the FOI Act the Minister is a party to the proceedings.

4 By written submissions dated 23 June 2000 X submits in paragraph 2 “I would like to stress once again, that I do not claim the names, addresses, and telephone numbers of two informers and five Police officers”. These submissions are entitled in both appeals.

5 By his notice of appeal in appeal 009003, X (who is the original FOI applicant) appeals from the deletion of material from three documents described as folios 1, 3 and 5. These documents relate to what is described in the Tribunal below as the “first notification” made under the Child Protection Act from a member of the public in 1987.

6 His notice of appeal incorporates material by way of submissions. It states “All of my claims here are now limited to just three documents from the Child Protection File – folios 1, 3 and 5. By paragraph 3 of his submissions dated 23 June 2000, X says: “I continue to claim any information, deleted or not, from my Child Protection File, except for that specified under paragraph 2 above.” (which is set out in paragraph 4 of these reasons). We do not understand that X seeks to enlarge the scope of his appeal beyond folios 1,3 and 5 but in the absence of any application to amend his notice of appeal, this Appeal Panel is confined to dealing with the matters contained in his notice of appeal.

7 The agency by its reply dated 14 February 2000 denies that any question of law is raised by the appeal and says, accordingly, there should be no merits appeal.

8 By the agency’s notice of appeal in appeal 009004 it appeals from those parts of the decision that ordered the release of the remaining parts of folios 41, 43, 44, 46, 49, 50, 51 and 56 which the agency had provided to the FOI applicant in an expurgated fashion at various times prior to the Tribunal’s decision below. Those documents all relate to what was described in the decision below as “the second notification”. X filed a reply to the agency’s appeal on 31 January 2000 which incorporates material by way of submissions.

9 The Appeal Panel considered that it was convenient to hear and decide the appeals together and the parties consented to that course. The matter was heard on 24 November 2000.

10 Pursuant to directions made in both appeals the parties filed written submissions. X’s submissions are by way of annexures to his Notice of Appeal and his Reply to the Dept’s notice of appeal, by written submissions filed 4 April 2000 and letters dated 1 June 2000, 15 June 2000 and 23 June 2000. The agency’s submissions are contained in its reply to X’s appeal, written submissions of the agency dated 27 March 2000, additional written submissions of the agency filed 19 June 2000, its list filed 20 June 2000 together with four tabs of annexures. The agency also relies on the submissions contained in its letters dated 10 August 1999 and 15 December 1999 which were relied on in the proceedings below.

11 In support of its appeal the Department filed an affidavit dated 31 May 2000 of Cora Ingram which sets out the deponent’s and the Department’s understanding of the effect of s 22 of the Child Protection Act and the procedures adopted by it to protect the identity of notifiers. The Department also sought to introduce a publication “Interagency Guidelines for Child Protection Intervention”. Leave was granted to the extent that these matters might prove to be relevant.

12 Submissions were received from the Premier of NSW as filed on 3 August 2000. They address s 57 of the FOI Act dealing with restricted documents and challenge the decision in Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 which held that the Tribunal has a discretion to release documents that are exempt.

13 We deal first with X’s appeal. The documents which are the subject of this appeal relate to an anonymous report received by the agency on or about 3 April 1997 making allegations against X. Ultimately, no significant action was taken on this notification by the agency. The decision below stated at paragraph 29 that:

“Cases may not be pursued for a variety of reasons. In this case, the agency was unable by interview to obtain any confirmation of the information received”.

14 Folios 1, 3 and 5 are 3 are included in a black folder which was before the Tribunal although it does not bear an exhibit note. Tab 4 contains the documents showing the deletions made when they were released to X. They are three versions of a “Notification Intake Summary Page” dated 3 April 1997.

15 The Tribunal at paragraph 28 of its decision, accepted that it is vital to the effectiveness of the agency’s role in the protection and well being of children that it be able to assure anonymous informants that it will not reveal information that might assist in identifying the informant. It held at paragraph 31 that the documents were exempt under s 4(1)(b) of the FOI Act and that the agency was entitled to rely on the exemption so as to withhold material which might assist in identifying the anonymous informant.

16 The Tribunal considered X’s submission that the exemption should not apply because the report was malicious but rejected the submission at paragraph 30 on the basis that:

“I indicated that on the question of whether malice was present the Tribunal should be guided by the opinion of the agency. It was in the best position to judge the legitimacy or otherwise of the report or complaint. In this case, the agency did not form the view that the report was malicious.”

17 The FOI applicant challenges the principle that the Tribunal should be guided by the opinion of the agency in light of certain findings by the Community Services Commission which were not in evidence before us and statements made by family members about how they felt in the family environment which are identified in the notice of appeal. Some reliance was placed on the Ombudsman’s FOI Guidelines, second edition, as endorsed in the reasons of the Tribunal below at paragraph 30 to the effect that “malicious complaints should not be protected”.

18 We see no error of law or principle in the approach adopted by the Tribunal in this regard.

19 The appellant also challenges the finding in paragraph 24 of the reasons that the deleted information might enable the notifier to be identified. He relies on a letter dated 25 Sept 1997 from the Ombudsman’s Office informing him that there was “insufficient information on these pages for me, or so far as I am aware of, the Department, to identify the caller.” Reliance was also placed by the appellant on certain publications referred to in the annexure to his notice of appeal. The parties informed us at the hearing of the appeal that these documents were not in evidence before the Tribunal. We gave leave in the absence of objection by the agency for X to provide copies to this panel and to rely upon that material as fresh evidence in his appeal to the extent it may be relevant.

20 Shortly after providing that material and while this Panel was considering its decision, X by a letter dated 30 November 2000 appraised us of the terms of an inter-party communication which referred to proposed consent orders. It is inappropriate for such material to be presented to the Panel and it has been disregarded.

21 We do not accept X’s submissions on his appeal. First, in the absence of any error of law we are not inclined to enter upon a merits appeal (leaving aside the question of whether we have power to do so where no error of law is demonstrated).

22 Secondly, it was a question of fact for the Tribunal to decide whether the withheld material did or would assist in identifying the informant and we see no error in the approach of the Tribunal to determining this factual matter.

23 Thirdly, in case we are wrong and having looked at the material ourselves, we agree with the Tribunal below that the information in the disputed documents was capable of assisting in the identification of the informant.

24 Accordingly X’s appeal fails.

25 In the agency’s appeal the documents in issue all relate to the second notification made to the agency received on or about 6 April 1988 after police from Campbelltown Police Station attended at an incident on 5 April 1988 at the family home when the X had gone to the house, was arrested and charged with assault. That charge was later withdrawn.

26 The notice of appeal alleges errors of law in the test applied by the Tribunal below when considering whether a source was a confidential source of information and in exercising a discretion to release documents found to be exempt under the relevant legislation. It is not necessary to consider these matters in light of the concession which has been made.

27 At the hearing on 24 November 2000, the FOI applicant repeated that he abandoned his request for the name or address of any police officer or notifier under the relevant legislation. Given the very limited nature of the deletions made to the disputed documents, this concession (which had been made in his earlier written submissions) effectively disposed of the agency’s appeal. Since the appeal was not withdrawn we now consider it.

28 After the Tribunal decision was handed down, the agency released some further documents to the FOI applicant. The agency appeals from those parts of the decision that ordered the release of the whole or remaining parts of folios 41, 43, 44, 46, 49, 50, 51 and 56 which the agency had previously provided to the FOI applicant with deletions (“the disputed documents”)

29 Copies of the disputed documents are before us as set out in the agency’s written submissions dated 19 June 2000. It appears that an expurgated version of document 41 was released by the agency to the FOI applicant on 15 December 1999 (before the decision in the Tribunal below was made) from which an address and a name were deleted. An expurgated version of document 43 was released by the agency to the FOI applicant on 15 December 1999. This document is headed “Confidential – Police Notification of Suspected Child Abuse or Neglect” from which the name of the “OIC” provided for in the form was deleted. An expurgated version of document 44 was released by the agency to the FOI applicant on 15 December 1999. It is a copy of a facsimile from the NSW Police Service to the agency from which the name of the sender of the document is deleted.

30 Expurgated versions of documents 46, 49, 50, 51 and 56 were released by the agency to the FOI applicant when he made his original FOI application. Document 46 is the agency’s “C&FS Intake Form” and is dated 6 April 1998. It plainly records in handwriting the substance of a telephone call or communication from a notifier. The handwritten entries in the form’s fields for “Callers Name”, “Status”, “Address”, and “Agency/Relation” were deleted. Documents 49, 50 and 51 are “Notification Intake Summary” documents and appear to be printed computer entries from the agency’s electronic record of the second notification. In each of these documents the entries were deleted for the fields for personal details of the notifier namely “Notifier Status”, “Name”, “Address” and “Whereabouts”. Also deleted was the entry under the heading “Agencies Involved”. Document 56 is the agency’s “Acknowledgement of Notification and Intake Response”. It is completed in handwriting and is dated 15 May 1998. The deleted parts are the name and address of the recipient.

31 With the exception of the entries under the heading “Agencies Involved” in documents 49, 50 and 51 (with the entry being the same in each documents), there is no longer any dispute between the parties. As the agency did not seek to establish before the Tribunal or this Panel why the agencies so named should be protected, those parts of the documents should be released to the FOI applicant. The other deleted material relates to matters of identity which are covered by the concession which was made.

32 Accordingly we determine that the disputed documents should not be released to the FOI applicant with the exception of the entries under the heading “Agencies Involved” in documents 49, 50 and 51, which entries should be released to the FOI applicant.

33 We make the following orders:

1. Appeal 009003 is dismissed with no order for costs.
2. Appeal 009004 is allowed in part with no order for costs.
3. The agency is to give access to the FOI Applicant to the entries in documents 49, 50 and 51 appearing under the heading “Agencies Involved”.