Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kelly v Department of Education [2021] NSWCATAD 2 Hearing dates: On the papers Date of orders: 6 January 2021 Decision date: 06 January 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decisions under review in applications 2020/188126 and 2020/188346 are affirmed. Catchwords: ADMINISTRATIVE LAW – Access to information – conclusive presumption against disclosure – refusal of access – correct and preferable decision Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Tammy Jane Elizabeth Kelly (First Applicant) Steven Paul Refalo (Second Applicant) Department of Education (Respondent) Representation: T Kelly (Self-Represented) S Refalo (Self-Represented) J Pendergast (A/Manager Information Access Legal Services)(Respondent) File Number(s): 2020/188126; 2020/188346 Publication restriction: Those paragraphs of these reasons identified as [Not for disclosure] are not to be released other than to the Respondent without further order of the Tribunal. This order is made pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013. Reasons for Decision Introduction 1. The Applicants have applied to the Tribunal for review of two separate decision made by a delegate of Secretary, Department of Education ("the Respondent" or "the Department"). Each of the decisions related to an access application by the Applicants to the Department under the Government Information (Public Access) Act 2009 ("the GIPA Act"). 2. At a case conference on 23 July 2020, the parties agreed that the matters could be determined on the basis of the written material filed by each party. The Tribunal made an order under section 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with the need for a hearing. 3. The parties have agreed that the Tribunal should deal with the two matters together. For convenience, I will deal with both matters in these reasons. The Access Applications Matter Number 2020/188126 1. In application number 2020/188126 the Applicants sought access to the following information: "All school and counselling records for … Date range 2010-2020 Matter Number 2020/188346 1. In application number 2020/188346 the Applicants sought access to the following information: "All documentation held by the department in relation to … The Determinations 1. In application number 2020/188126 the Respondent determined to release some of the requested information. It determined that some of the information should be withhold on the basis that there was a public interest consideration against the release of the information. 2. The withheld information included the personal information of third persons the information that was not disclosed to the applicant and information that was identified as "ABAS II and WISC IV scales and assessments". 3. On 24 July 2020 Senior Member Lonsdale made the following orders in matter number 2020/188126: "… 5. The applicants agreed during the case conference on 24 July 2020 that they no longer seek access to the personal information redacted by the respondent from the information identified as within scope of the access application. [Note: The respondent listed the personal information (broadly by type) and the applicants noted in each case that they either had the information already or did not seek it as part of the application.] 6. By 30 July 2020, the respondent is to write to the applicants confirming that there is no personal information (other than the name of the relevant student at the top of the assessment document) contained in the information that was not disclosed to the applicant and described in the respondent's notice of decision dated 15 May 2020 as "ABAS II and WISC IV scales and assessments" (the "No Personal Information Letter"). 7. The applicants agreed during the case conference on 24 July 2020 that, provided the respondent provides the No Personal Information Letter referred to in order 5 above, the applicants no longer seek access to the information that was not disclosed to the applicant and described in the respondent's notice of decision dated 15 May 2020 as "ABAS II and WISC IV scales and assessments". 8. The parties agreed that the only issue to be determined in the proceeding (and in related proceeding 2020/188346) is the decision to refuse to provide information identified by the respondent as subject to a conclusive presumption under Sch 1 to the Government Information (Public Access) Act 2009. [Note: Other information the respondent determined not to disclose to the applicants is either personal information that the applicants no longer seek or information that is to be the subject of the No Personal Information Letter.]" 1. Therefore, the scope of the Applicants' request has been narrowed significantly. The only issue to be determined in the proceedings concerns the Respondent's decision to refuse to provide information which it identified as subject to a conclusive presumption under Schedule 1 to the GIPA Act. Applicable legislation 1. The Applicant applied to the Tribunal under section 100 of the GIPA Act. The burden of establishing that there is an overriding public interest against disclosure of information lies on the Respondent: section 105(1) of the GIPA Act. 2. Pursuant to section 63(3) of the Administrative Decisions Review Act 1997 the Tribunal may decide to: (a) affirm the reviewable decision, (b) vary the reviewable decision, (c) set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) set aside the reviewable decision and remit the matter for consideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 2. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. 3. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure. 4. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 5. Section 14(1) of the GIPA Act provides that 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 to the GIPA Act. The public interest considerations listed in the Table to section 14 of the GIPA Act 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. 6. If it is conclusively presumed that there is an overriding public interest against disclosure because of the operation of Schedule 1 to the GIPA Act, no balancing process is undertaken to determine whether there is an overriding public interest against disclosure of the information. 7. Section 105 of the GIPA Act provides that the Respondent bears the onus of satisfying the Tribunal that its decision is justified. 8. Section 126(1)(e)) of the GIPA Act provides: 126 Requirements for notices given by agencies (1) The following requirements apply to any notice or notification that an agency is required to give under this Act - … (e) it must not disclose any information for which there is an overriding public interest against disclosure. … 1. In the reasons for decision in matter No. 2020/188346 the decision maker stated: "Information for which there is an overriding public interest against disclosure The records relevant to your access application reveal information that falls within one of the clauses contained in Schedule 1 of the GIPA Act. There is a conclusive presumption of overriding public interest against disclosure. In order to describe the information contained in the records, or nominate which clause is relevant, I would be revealing details for which there is an overriding public interest against disclosure. ... In accordance with section 126(1)(e) of the GIPA Act, I am unable to describe the content of information contained in the records on pages identified in the schedule . Access to this information is therefore not provided." 1. In the reasons for decision in matter No. 2020/188126 the decision maker stated: 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); • to refuse access to part of the information because there is, on balance, an overriding public interest against its disclosure (section 58(1 )(d)); and • not to disclose information for which there is an overriding public interest against disclosure (Schedule 1 and section 126(1)(e)). In making this decision I have applied the public interest test under sections 12 to 15 of the GIPA Act by balancing the public interest considerations. Information for which there is an overriding public interest against disclosure The records relevant to your access application reveal information that falls within one of the clauses contained in Schedule 1 of the GIPA Act. There is a conclusive presumption of overriding public interest against disclosure. In order to describe the information contained in the records, or nominate which clause is relevant, I would be revealing details for which there is an overriding public interest against disclosure. ... In accordance with section 126(1)(e) of the GIPA Act, I am unable to describe the content of information contained in the records on pages identified in the schedule . Access to this information is therefore not provided. Personal information I have decided that pages identified in the schedule contain personal information of third parties. Such information has been deleted from the records released to you. … 1. As noted above, the Applicants no longer seek access to the personal information redacted by the Respondent from the information identified as within scope of the access application. Issues for determination 1. The remaining issue to be determined is whether the decision to refuse to provide the Applicants access to the information which the Respondent as subject to a conclusive presumption under Schedule 1 to the GIPA Act is the correct and preferable decision. The withheld information 1. The Respondent has provided a copy of the withheld information to the Tribunal on a confidential basis. I have considered that information and I am satisfied that the Respondent has categorised it correctly. I am satisfied that the information is subject to a conclusive presumption under Schedule 1 to the GIPA Act. Accordingly, the information must not be disclosed: section 126(1)(e)) of the GIPA Act. 2. In order to preserve the confidentiality of that information and discussion of the information, I have made orders restricting its disclosure other than to the Respondent. These orders are made pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013. 3. I understand that the Applicants are aware of the nature of the withheld information and they are aware of the applicable clause under Schedule 1 to the GIPA Act. However, the details have not been publicly disclosed. I have determined to withhold the discussion of the legislative provision in order to preserve the privacy of private individuals. 4. [Not for disclosure] 5. [Not for disclosure] 6. [Not for disclosure] 7. [Not for disclosure] 8. [Not for disclosure] 9. [Not for disclosure] 10. [Not for disclosure] 11. [Not for disclosure] 12. In the circumstances, I am satisfied that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the withheld information in application 2020/188346. 13. As noted above, the Applicants are no longer pursuing the application for access to the withheld information in application 2020/188126. 14. Accordingly, the decisions to refuse to provide the Applicants access to the withheld information in applications 2020/188126 and 2020/188346 are the correct and preferable decisions and they should be affirmed. Orders The decisions under review in applications 2020/188126 and 2020/188346 are affirmed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 January 2021