Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FHG v Cumberland City Council [2021] NSWCATAD 379 Hearing dates: 30 August 2021 and 7 October 2021 Date of orders: 23 December 2021 Decision date: 18 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited. (2) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant's access requests numbered 1, 2 and 3, and in its place orders that: (a) The applicant be provided with unredacted copies of the documents identified in Mr Karaki's statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20; (b) The applicant is refused access to documents 1 and 6; and, (c) The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022. (3) The Tribunal remits for reconsideration in accordance with these reasons the Applicant's access request numbered 4, such reconsideration to be completed by 30 January 2022. (4) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant. Catchwords: ADMINISTRATIVE LAW – government information – access application – applications to be given wide scope - agency's failure to search for information sought – overriding secrecy laws - legal professional privilege –excluded information - whether overriding public interest against disclosure of information. Legislation Cited: Administrative Review Decisions Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children's Guardian Act 2019 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Ombudsman Act 1974 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550, Lonsdale v University of Sydney [2015] NSWCATAP 277 Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14 Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 Texts Cited: Desiatnik, Legal Professional Privilege in Australia, 3rd Ed (2016) Lexis Nexus Category: Principal judgment Parties: Applicant – FHG Respondent – Cumberland City Council Representation: Applicant – self represented Respondent – C. McFadzen Information Commissioner - File Number(s): 2021/0069505 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited. The Tribunal prohibits the disclosure or publication of the applicant's name in accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013. REASons for decision Introduction. 1. These reasons relate to the administrative review of an internal review decision under the Government Information (Public Access) Act 2009 (the GIPA Act) made by the Cumberland City Council (Council) on 11 February 2021 refusing the access applicant, FHG, access to information he requested on 16 October 2020. Necessary background. 1. In order to properly understand the issues raised in this application it is necessary to have some understanding of the factual background. What follows is a barebones outline and is by no means comprehensive. 2. FHG [Not for Publication] by Council. In 2016 and early 2017 tensions grew between him and fellow staff members with respect to what he considered to be bullying and harassment of himself, and what appears to have been considered by others to be concerning behaviours involving children and attitudes displayed by FHG. 3. An internal investigation found no misconduct on his part. 4. Material before me suggests Council ceased to engage FHG in December 2016, although investigations into his conduct continued for some years after then. 5. In March 2017 FHG made a lengthy - 100 pages or more - complaint of bullying and harassment to Council. It was referred to Mr Taylor who was then Council's Manager, Executive Support. In a statement Mr Taylor explained: On 5 April 2017, on behalf of Council, I engaged O'Connell's Workplace Relations (O'Connell's) to assess the applicant's bullying and harassment complaint. The scope of O'Connell's work was later expanded to consider correspondence obtain by the Council from Family and Community Services (FACS). 1. The letter from FACS alerted Council to allegations of reportable conduct being made against FHG. It was referred to O'Connell's to be included in its investigation by a letter from Mr Taylor in April 2017. 2. Council received a report from O'Connell's dated 2 June 2017 addressing the issues referred for investigation and report. 3. In January 2018, Mr Taylor said he had reservations about the report and the adequacy of Council's processes for dealing with allegations of reportable conduct, in the event of a child being harmed. He engaged Baird Lawyers, "to assist with a review of the matter and advise to advise Council on process improvements." 4. On 29 January 2018 Baird Lawyers provided him with, "an updated report from O'Connell in response to my concerns …" That report says that it is the subject of level professional privilege. Mr Taylor in his statement indicated that he was not prepared to waive the privilege for the purposes of Sch 1, Cl 5 of the GIPA Act. 5. Subsequently, as a result of concerns about the fairness of the investigative process to FHG, Council commissioned further investigations and reports from Wise Investigation Services Pty Ltd (Wise) in 2018, initially by way of a desktop investigation and then by a more thorough investigation process. A report following that investigation made adverse findings against FHG (the Wise Report) and was provided to Council dated 5 February 2019. 6. Following receipt of the Wise Report and communications with the Offices of the Ombudsman and the Children's Guardian concerning it, Council provided FHG with a letter from the General Manager outlining the adverse findings Council made against him. The access application. 1. On 20 October 2020 FHG made an access application under the GIPA Act. The information request relevantly said: I have not received any information from Cumberland Council that proves the various investigations against me were procedurally fair, supported by evidence, or based on a logical rationale, yet, the allegations submitted to me by Cumberland Council have evolved dramatically from 2016 – 2019 – years after I left work there. I therefore am led to believe that the various investigations conducted by Council about me are fundamentally flawed, and potentially a cover-up. To this end, on or around March/April 2019, the New South Wales Ombudsman recommended to Cumberland Council to consider providing me with a rationale and evidence for the Cumberland Council's findings of 'ill-treatment' and 'sustained sexual misconduct'. 1. Please provide me with the evidentiary records and rationale which form the basis of the Cumberland council's findings of 'sustained sexual misconduct' which Cumberland Council provided to the NSW Ombudsman and/or OCG on or around October 2017. 2. Please provide me with the evidentiary records and rationale which form the basis of Cumberland Council's findings of 'sustained sexual misconduct' and 'ill-treatment' on 25 March 2019. 3. Please provide me with any documentation that substantiates the need for/rationale for the Wise Workplace Investigation of 2018 to 19. 4. Please provide me with financial expenditure records of Cumberland Council for 'all external workplace investigations into allegations of reportable conduct from staff against children each year from 2014 – 2020. 1. Council acknowledged receipt of that application by email on 22 October 2020. 2. On 26 October 2020 FHG wrote to Council requesting that his access application be amended to include the following request: 5. I would like to know who the Cumberland Council GM is answerable to for systemic abuse of an NSW resident. Please provide a record of the accountability structure for the GM in this regard. 1. On 27 October 2020, Council acknowledged this amendment and advised that the request would be included in the access application. 2. On 17 November 2020, by email, Ms Albazouni, Council's Access to Information Officer refused FHG access to information responsive to requests 1 to 4 inclusive because it would involve an unreasonable and substantial diversion of Council's resources. She refused to deal with those parts of the application under s 60(1)(a). She provided an answer to request 5, which referred to a number of publicly available documents. 3. FHG then sought a review of that decision by the Information Commissioner. The information Commissioner was not satisfied that Council's decision was justified and recommended the Council make a new decision by way of internal review. 4. On 11 February 2021, Council provided FHG with an internal review decision (the decision) following the recommendation of the Information Commissioner. In that decision Council did not identify the information it holds that was responsive to FHG's various requests. The decision noted that: Previously you were advised that Council's Internal Ombudsman was unable to provide any information about the investigation conducted as a result of the NSW Ombudsman's request to Cumberland City Council to investigate your complaint to the New South Wales Ombudsman. The result of the investigation conducted by an external investigator, Wise Workplace, were provided to the NSW Ombudsman and the NSW Ombudsman was satisfied with the results. This information is confidential. You have been provided with the information relating to the outcome of the investigation. No other material is able to be provided to you. 1. The internal reviewer, Ms Carol Karaki, went on to find that some (unidentified) information was excluded information, and found with respect to unspecified information responsive to FHG's requests numbered 1 to 3, that Council relied on the public interest considerations against disclosure, specified in clause 2(a) and (d), and clause 3(g) of the Table to section 14 of the GIPA Act, as grounds for refusal for disclosure. In so doing, the decision failed to record or consider that there is a general public interest in favour of disclosure of government information, or to identify any specific other public interest considerations that may have favoured disclosure; e.g., that some of the information is FHG's personal information (see s 12). The internal review did not undertake the public interest test required by s 13 with respect to identified information. It did not balance the public interests against disclosure against those in favour of disclosure and thereby failed to undertake the basic and fundamental steps for determining whether to grant access to information under the GIPA Act. The internal review also found that unspecified information responsive to request 1 was excluded information for the purposes of the GIPA Act and therefore not a reviewable decision. 2. In evidence Ms Karakai said that she had not conducted her own searches for information responsive to FHG's requests but had relied on the information found by Ms Albazouni. Ms Albazouni had only identified five documents responsive to the request and had not included a schedule of documents. 3. This is not consistent with the spirit and intent of the Act which requires an internal review to be made by a sperate decision maker undertaking an independent process. Section 84 says: (1) An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received. (2) An internal review is not to be done by the person who made the original decision and is not to be done by a person who is less senior than the person who made the original decision. 1. With respect to request 4, the decision advised that Council's financial records were not journaled in the format specified by FHG and therefore the information sought could not be provided to him. With respect to item 5, Council said that the General Manager is accountable to Council and referred to a number of documents such as the complaints policy and the Council code of conduct. The administrative review application. 1. On 11 March 2021, FHG filed an application seeking administrative review of the decision. That application was made within time. 2. After the administrative review application was filed, there were a number of case conferences and directions hearings held in which the application was prepared for hearing. This included a referral for mediation which was unsuccessful. None of the usual orders were made for the filing of confidential materials. Despite this, Council has filed copies of some of the documents it claims are confidential with the Tribunal, but has not served copies of them on FHG. Open submissions were made regarding some of the information. Otherwise, that information has been treated confidentially in accordance with s 107(2) of the GIPA Act which provides: (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. 1. It should also be noted that directions were made for the parties to give each other a list of witnesses required for cross-examination. 2. The administrative review application came before me for hearing on 30 August 2021 and was adjourned to 7 October 2021 when it was completed. At the end of the hearing I reserved my decision. Material Before the Tribunal. 1. In the course of the hearing and in considering my decision I have had regard to the following material. 1. From the applicant, FHG: 1. Application for administrative review dated 11 March 2021 with attachments. 2. Applicant's evidence and submissions with attachments filed on 26 July 2021 - 56 pages. 3. Copy letter from the NSW Ombudsman to the General Manager of Council dated 8 March 2019 requesting, among other things, that FHG be provided with an explanation of the findings of investigations into his alleged misconduct. 4. Emails from FHG to Mr Taylor and to Ms Helen Connell at Council dated 4 and 10 January 2018. 5. Email from FHG to Mr Taylor at Council questioning the instructions given to O'Connell's. 1. From Council: 1. Statement of Warren Taylor dated 12 July 2021. 2. Statement of Julie Albazouni dated 14 July 2021. 3. Statement of Carol Karaki dated 14 July 2021 with confidential Bundle CK01. In this statement, for the first time Ms Karaki listed 24 documents said to be responsive to FHG's request. 4. Statement of Carol Karaki dated 9 August 2021 with attachments. 5. Respondent's outline of submissions received 19 July 2021. 6. Respondent submissions in reply and summary of legal argument dated 13 August 2021 with attachments. 7. Copy letter from the General Manager of the Council to FHG dated 25 March 2019 responding to FHG's complaint to the ombudsman and providing some details of investigations and findings. 8. Confidential email dated 29 January 2018 from Baird Lawyers to Warren Taylor of Council containing a confidential document described as a "CONFIDENTIAL REPORT SUBMITTED FOR LEGAL REVIEW PRIOR TO FINALISATION AND CONFIRMATION OF LEGAL PROFESSIONAL PRIVILEGE". The documents refers to 18 attachments which were not provided in the confidential copy provided for the Tribunal's use 1. From the information Commissioner: 1. Submissions dated 13 August 2021 – 20 pages. 1. During the hearing I heard sworn evidence from the following people: 1. Mr Warren Taylor; 2. Ms Carol Karaki; 3. Ms Julie Albazouni; and 4. Jeremy FHG. 1. It should be noted that I did not allow FHG to cross-examine all the witnesses he had nominated in his list of people required for cross-examination. In Lonsdale v University of Sydney [2015] NSWCATAP 277 at [32]-[34] the Appeal Panel discussed the difficulties occasioned by an applicant seeking to summons staff from an agency: 32. … Allowing the respondent to summon witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33 It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34 Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)). 1. In the present case, FHG has a lot of unanswered questions with respect to what happened as a result of allegations made regarding his conduct towards children while in the employ of Council. He wants to understand exactly what happened and examine the interconnectedness of events that have affected him. He wants to understand what happened over the course of a number of years, much of which occurred in his absence. 2. That, however, is not the purpose of these review proceedings. They are focused on whether or not Council holds information which FHG is entitled to access under the GIPA Act. In the light of his submissions and evidence, I considered that allowing him to question all the witnesses he sought would be in pursuit of a de facto investigation and review of what had occurred, much of which would be irrelevant to the true issues to be determined. It would also result in the proceedings being considerably more protracted and difficult, contrary to the guiding principle in s 36 of the NCAT Act that the Tribunal "facilitate the just, quick and cheap resolution of the real issues in the proceedings." I therefore ruled that he could not question all witnesses he had listed, but allowed cress-examination of those who had put on witness statements for Council. The Government Information (Public Access) Act 2009. 1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 1. In exercising functions under the Act s 3(2) instructs that - "It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information." 1. 'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 2. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws, it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14). 3. Section 14(1) provides that: (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. 1. Information of the kind specified in Sch 1, is therefore the subject of a conclusive presumption that there is an overriding public interest against disclosure ("a conclusive presumption"). Sch 1 is not short. Among the information that it provides is the subject of a conclusive presumption, is information that is the subject of legal professional privilege (cl 5), excluded information ( cl 6) and certain child welfare information (cl 10). 2. In the present case Council claims that the O'Connell report is the subject of legal professional privilege. Clause 5 of Sch 1 provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. Council claims that the documents 1, 2, 3, and 4 are excluded information. Cl 6 of Sch 1 provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5 1. Schedule 2 specifies what constitutes excluded information by reference to whether the information relates to specified functions of nominated agencies. The opening note to the Schedule says: Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1. With respect to the Office of Ombudsman and the Office of the Children's Guardian cl 2 of Sch 2 provides, among other things: The office of Ombudsman—complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). … The Office of the Children's Guardian—reportable conduct matters under Part 4 of the Children's Guardian Act 2019 (including report handling, investigative and reporting functions, and any functions of the Children's Guardian relating to Official Community Visitors appointed under the Children's Guardian Act 2019). 1. Clause 10 of Schedule 1 also creates a conclusive presumption with respect certain information relating to the care and protection of children. It provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. 1. Where a person seeks access to excluded information s 43 of the GIPA Act provides that: (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. With respect to other government information, which is not subject to a conclusive presumption, the GIPA Act establishes a general principle that there is public interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - 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. 1. Section 14(2) then provide – (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 1. In considering whether there is an overriding public interest against disclosure s 16 provides - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. The public interest considerations against disclosure relied on by Council in its internal review decision were: 1. "Law enforcement and security," specifically cl 2(a) and (b) which provide: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)— (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,… 1. "Individual rights, judicial processes and natural justice," specifically cl 3(g) which provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) … (g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed., … 1. Personal information is defined in clause 4 of Schedule 4 - (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 1. Division 3 of Part 4 of the GIPA Act sets out various provisions concerning the process to be followed in making decisions, the first of which is a decision as to whether or not the application is a valid one: s 51. 2. Section 53 provides: (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. 1. In this case, FHG alleges that the searches conducted by Council were inadequate and that there is information in existence responsive to his request for information that has not been disclosed by Council in this proceeding. It must be remembered that in its internal review decision Council did not identify the information, records or documents that were responsive to FHG's access application. This was a fundamental fault in the internal review decision as it meant that anybody considering the internal review had no idea what records Council considered responsive to the access application. The information in issue and where it is to be found was first disclosed in the course of preparation for hearing, when it was listed in the in the statement of Ms Karaki dated 14 July 2001. There she listed 24 separate documents containing relevant information all of which she said should not be disclosed to FHG. She also, in her statement, relied on public interest considerations against disclosure which had not been previously mentioned. 2. Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). 3. Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides - (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 1. Section 58 sets out the decisions an agency may make with respect to an access application. (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note— These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. Section then 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides - "The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, … 1. Among other options, a person aggrieved by an access decision may seek a review by the Tribunal (s 100). When this provision is read with s 28 and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and s 9 of the Administrative Review Decisions Act 1997 (NSW) (the ADR Act), they confer jurisdiction on the Tribunal to review reviewable decisions made under the GIPA Act. Such applications are to be made within 40 working days of the decision (s 101(1)) or within 20 working days of the completion of a review by the Information Commissioner (s 101(2)). 2. In any review of a reviewable decision by the Tribunal s 105 places the burden of justifying the decision on the agency concerned. It relevantly provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. … 1. The Tribunal's function on review under s 63 of the ADR Act is to make the correct and preferable decisions having regard to the material before it and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Issues to be determined. 1. Having reviewed the evidence, materials and submissions, I am of the view that the following issues require determination in this case: 1. Whether Council may change the grounds it relies on to refuse FHG access to the information he seeks to grounds that differ from those outlined in the decision being reviewed? 2. Whether Council has disclosed all information responsive to the access request? 3. Whether the O'Connell report – document 14 - is the subject of legal professional privilege and therefore excluded information? 4. Whether documents 1, 2, 3 and 4 are excluded information? 5. Whether following the application of the public interest test to the remaining information in dispute under requests 1, 2 and 3, as disclosed by Council, FHG should have access to any and what parts of that information? 6. What is the correct and preferable decision with respect to request 4? 7. Whether FHG should be granted access to documents 21 to 24 in accordance with request 5? 8. What orders the Tribunal should make? Whether Council may change the grounds it relies on to refuse FHG access to the information he seeks to that grounds differ from those in the decision being reviewed? 1. I have already at paragraphs 19 and 20 summarised the contents of the internal review decision. In that decision Ms Karaki relied on the public interest consideration against disclosure specified in clause 2(a) and (b), and clause 3(g) of the Table to section 14 to resist disclosure of information responsive to requests (1) to (3), excluded information apart. 2. In submission the Information Commissioner noted: 1. That in her statement of 14 July 2021 Ms Karaki sought to substantially change the grounds she relied on to not release information to FHG under the public interest test, by including the public interest consideration against disclosure in cls 1(d), 1(e), 1(f), 1(g), 1(h), 2(b), 3(a), 3(b) and 3(f) of the Table to s 14. To that observation should be added that only in her statement did Ms Karaki, for the first time, provide details of the information in issue listing 24 separate documents that were considered responsive to FHG's request. 2. That Council's submissions filed 19 July 2021 sought to recast the internal review decision by, among other things: 1. suggesting that the response to request 4 "more fittingly" might have been that the information was not held by Council; 2. suggesting that the response to request 5 "more fittingly" might have been that the information was already available to the applicant; 3. relying on the additional public interest considerations against disclosure mentioned by Ms Karaki in her statement. 1. That at paragraph 13 of her statement Ms Karaki said: In preparing this Statement of Evidence, I have re-examined Council records and altered my position on the grounds on which I say the application should be determined, whether document should or should not be released and the reasoning behind release/non-release. This statement outlines my current position on the matter and is to be preferred to my earlier decision of 11 February 2021. 1. In submissions, Council also conceded that there was no public interest against disclosure of documents numbered 5, 10, 15, 16, 17, and 20 in Ms Karaki's statement. These are concessions and are to be contrasted with the changes in the grounds relied on with respect to the balance of the information in issue. Council also indicated that it, "would not oppose any order the Tribunal sees fit to make" with respect to documents 21, 22, 23, and 24 which, it submitted, are public documents accessible on line. 2. The information Commissioner submitted that Council, in both Ms Karaki's statement and in its own submissions, was seeking to substitute a new decision (Ms Karaki's preferred position) for the internal review decision which is the subject of the administrative review application. The information Commissioner relied on the decision of the Appeal Panel in Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68. The Appeal Panel stated, at [47] - In our view, the scheme of the GIPA Act is such that there is no unilateral general power given to the agency to change a final decision. The Act has a complex scheme of review – internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine this scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it. 1. The Appeal Panel noted that the GIPA Act and the ADR Act made provision for more than one decision to be made. Section 58(2) and (3) provide: (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. Council has not made a further decision in this case. 2. In Barrett, the Appeal Panel explained that, at [54] to [59] – 54. The agency in this instance chose to notify its change of decision in respect of item 6 as it related to John in the body of its detailed written submissions at para [64] in these words: On reflection, the respondent's position is that Mr Barrett should not have been informed no intelligence reports were held (s 58(1)(b)). Instead the respondent should not have confirmed or denied whether intelligence reports were held in relation to Mr Barrett (s 58(1)(f)). 55. This is not, we consider, an acceptable way of announcing a change of position. There should have been a clear separate notice given. Had that occurred, the Tribunal would then have been required to consider, after hearing from the review applicants, whether a new decision should now be permitted to be substituted as the decision under review, or the s 65 mechanism possibly used. As to the latter, directions could have been given to confine the time within which this was to occur so as not to delay unduly the finalisation of the proceedings in the Tribunal. 56. From our review of the file what appears to have occurred is that the Tribunal only became aware of the agency's change of position when it began to read the submissions as a whole, in circumstances where the timetable for submissions from both sides and a reply from the agency was completed in July 2013, almost eight months after the agency had announced its proposed change of decision. 57. In support of its right to substitute a new decision after a matter reaches the Tribunal, the agency's appeal submissions referred to the case-law in administrative review tribunals on the right of parties to rely on any relevant material recognised by s 63 of the ADR Act, including material that was not available or in existence at the time the matter was before the administrator. We referred to that case-law in our recent decision in Commissioner of Police v Joseph [2015] NSWCATAP 9 at [26]-[28]. 58. The present case is one where a new decision is sought to be substituted for the reviewable decision that founded the review application. It is not a case involving the lodgment of additional material in support of the decision that founded the review application. Nor is it a case of the kind Joseph was, where the decision (refusal of licence) remained the same but the agency sought to rely on a further ground additional to the two that it had previously relied upon, and which was founded in the same material that supported one of the other grounds. In this case the agency was seeking to invoke another statutory provision permitting a decision different in kind to the one that had founded the review application. 59. A proposal to substitute a new statutory decision requires a careful response, and the procedure set out in s 65 of the ADR Act would often be appropriate to use. If a new decision is to be made there needs to be a clear process followed that ensures that clarity prevails as to what the new reviewable decision is, and obtains the benefit of any incidents that attach to the making of a new decision, such as (where applicable) the provision of reasons, and the provision of any new material that is relied upon. 1. The similarities between the situation confronting the Appeal Panel in Barrett and those in this case are obvious. The major difference is that the change was first notified in the statement of a witness Ms Karaki, and then adopted in Council's submissions. Given the gross deficiencies in the initial internal review (e.g., the failure to identify the information in issue, the failure to identify public interest considerations in favour of disclosure, and the failure to balance the public competing interests) the problems with that decision are obvious. The method chosen to add additional grounds for the decision to refuse FHG access to information does not comply with the GIPA Act and is impermissible. Council is restricted to the grounds relied on for refusing FHG access to information in the internal review decision. 2. I add that the principle in Barrett does not prevent Council from abandoning grounds stated in the internal review and consenting to the release of information. It is aimed at preventing grounds for refusing access shifting and changing outside the ordered process set out in the GIPA Act, and thereby complicating the administrative review process. Whether Council has disclosed all information responsive to the access request? 1. FHG's request for information is quoted in full at paragraph [12] above. He has consistently claimed that Council has not revealed all the information it holds that is responsive to his request. Council however, had made not made any decision that information is not held (a separate decision and distinct decision under s 80(e)). 2. In his first request, FHG sought the evidentiary records and rationale which form the basis of the Council's findings of 'sustained sexual misconduct' which Council provided to the NSW Ombudsman and/or the OCG on or around October 2017. Those findings relate to his conduct while in the employ of Council which ended in December 2016. Request 2 adopted a similar formula. 3. A difficulty with such requests, when determining their scope, is that they require judgements to be made by decision makers as to what is meant by "evidentiary records" and about what "the rationale" for a given decision might be. Clear factual statements describing the information sought are to be preferred over requests that require judgments to be made about what is actually being requested.; e.g., "all information considered by Council in making the finding of sustained sexual misconduct against me." 4. FHG suggests that Ms Kakari interpreted his request as only relating to documents sent to the Ombudsman or OCG. Ms Kakari denies this, however the only documents she notes as responsive to that request are the letter from FACS and Ombudsman's notification forms. She also includes correspondence between Council and FACS which she claims is excluded information. 5. When she was giving evidence, I asked Ms Karaki whether she considered correspondence relating to the initial O'Connell report and that report itself fell within the scope of FHG's requests. She did not, because they related to his bullying and harassment complaint. 6. As the bullying and harassment complaint and the circumstances outlined in the FACS letter of 18 April 2017 were the subject of the initial report, I consider this to have been an unduly, restrictive approach. The O'Connell report, on Mr Taylor's evidence, relates to the bullying and harassment complaint as well as to matters relating to Mr FHG's conduct referred to in the FACS letter. Mr Taylor's own evidence is that he sent the FACS letter to O'Connell's within two weeks of the bullying and harassment complaint. He received a report addressing both from O'Connell's dated 2 June 2017. 7. Agencies should interpret the scope of access requests widely and beneficially. If they are then so wide that they present difficulties to the agency concerned, that can be a matter for discussion between the agency and the applicant. This did not happen here. 8. I am satisfied on reviewing Council's decision on the merits that there is information in Council's records that is responsive to FHG's access requests, but the existence of which has not been disclosed. This includes: 1. the O'Connell report dated 2 June 2017; 2. correspondence between Council and O'Connell's, or records with respect to: 1. instructions to O'Connell's to prepare the report; 2. changes to Council's instructions regarding the preparation of the report; 3. organisational arrangements between Council, Council officers and O'Connell's relating to the report; and 4. the delivery of the report and results of the investigation. 1. In my view that information is responsive to requests 1, 2, and 3, which overlap considerably. 2. On review with respect to requests 2 and 3, on the material before me, Council also holds information, the existence of which was not disclosed in the list of materials responsive to the request set out in Ms Karaki's statement, or elsewhere, by Council. This includes: 1. Correspondence dating from around January 2018 between Council, Baird Lawyers and O'Connell's with respect to the provision of an updated report and advice on it. 2. Internal and external memoranda, letters and records relating to the consideration by Council of the second O'Connell's report dated 25 January. 3. Internal and external memoranda, letters or records relating to Council's decision to engage Wise Workplace to conduct a desktop review of the earlier investigation and relating to Wise's conduct of the desk top review, its desktop investigation report to Council and any recommendations arising from the investigation. 4. Internal and external memoranda, letters or records relating to Council's decision to engage Wise Workplace to conduct a full investigation into allegations against FHG and relating to Wise's conduct of the that review, its report to Council and any recommendations arising from the investigation. 1. It may be that Council will claim that that some of that information is subject to legal professional privilege. Whether or not that is the case will be determined after the existence of the information is disclosed, if necessary. Legal professional privilege extends to the content of a communication; not to its existence: H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550, per McDougall J at [20] and AIN v Medical Council of New South Wales [2015] NSWCATAP 241 2. Finally, mention should be made of request 5. This posed a question which involved a judgment. Agencies may answer questions but are not obliged to. In this case Ms Albozouni did so in her original decision, and that answer has not changed since. 3. For the sake of completeness, I note in the course of her evidence Ms Karaki told me that when conducting the internal review she relied on the searches undertaken by Ms Albazouni. She did not consult with staff who had been involved in the various processes concerning FHG, but did check with the finance team about the availability of the financial information he requested. The obligations of an agency when searching for material responsive to an access request was discussed in Wojciechowska v Commissioner of Police [2020] NSWCATAP 257. Principal Member Britton, as she then was, explained: 38. … there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that "there are reasonable grounds to believe that the requested information exists and is held by the agency". Being familiar with the type of information it holds, its information management and retrieval systems, generally the agency will be best placed to make an assessment about the likelihood that the requested information exists and is held by it. Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s 53. This is not to say that the stated basis for an applicant's belief that the requested information exists and is held by the agency. Indeed, the basis for that belief may assist the agency in identifying and finding the requested information. However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency's "information is not held" is the correct and preferable decision. Whether the O'Connell report – document 14 - is the subject of legal professional privilege and therefore excluded information? 1. Council claimed that the O'Connell Report received by Baird Lawyers from O'Connell's on 29 January 2018 (document 14) is the subject of legal professional privilege. The report was accompanied by a letter from O'Connell's to Baird Lawyers which I understand is also subject to a claim for legal professional privilege. 2. In considering whether or not a communication is the subject to legal professional privilege for the purposes of cl 5(1) of Sch. 1 to the GIPA Act, the provisions of the Evidence Act 1995 (NSW) concerning client legal privilege apply: Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 at [70]; AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [36]; EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255 [31] and Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14. 3. Relevantly, s 118 and s 119 of the Evidence Act provides: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 1. In order to properly understand those provisions, regards need to be had to the definitions set out in s 117. In this case, the following are of particular relevance: confidential communication means a communication made in such circumstances that, when it was made— (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared— (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 1. In the context of administrative review proceedings under the GIPA Act, Council bears the burden of proving its decision that the report is the subject of legal professional privilege, and therefore excluded information, is justified: see s 105(1) and AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [18]. Initially, Council did not provide the Tribunal with a copy of document 14, and only did so when I insisted that a copy should be produced so that I could view it and determined whether it was privileged. 2. There is no dispute that O'Connell's provided an earlier version of document 14 to Council on 2 June 2017. There is no evidence that there were any lawyers involved in the process whereby Council asked O'Connell's to investigate and report on FHG's bullying and harassment complaints or, when those instructions were changed to include allegations raised in the FACS letter. There is no evidence that the earlier report in any way provided legal advice. Lawyers were not involved when the report was provided to Council on 2 June 2017. On the material and evidence now before me, the original report was not a confidential communication between Council and its lawyers, and it was not prepared by O'Connell's at council or its lawyers request for the dominant purpose of obtaining legal advice. 3. The evidence concerning the creation of document 14 is limited. Other than Mr Taylor's explanation that he was concerned about the potential for exposure to litigation regarding Council's handling of reportable conduct allegations, and that Baird Lawyers had sought an updated report from O'Connell's over which legal professional privilege is claimed, there is no evidence as to how document 14 and the original report differ. 4. I have read document 14. To comply with s 107 of the GIPA Act I cannot disclose the content to FHG or the public. As a consequence, the next paragraph of these reasons is confidential, and cannot be shown to FHG or the public. It will be disclosed to Council and to any Appeal Panel. 5. Not for publication 6. Aside from document 14 and Mr Taylor's statement, Council has presented no evidence as to the circumstances in which document 14 came to be created, or provided details of the advice sought and obtained, all of which could have been provided on a confidential basis. The original O'Connell's report was delivered to Council and had been in existence for more than 6 months when Council's lawyers gave undisclosed instructions for the report to be revised. Council's lawyers were not involved in communications relating to the original' report's creation, when legal advice was not sought. There is no suggestion that the original O'Connell's report was the subject of legal professional privilege. While in his evidence Mr Taylor referred to the initial report as an interim report, there is nothing in his statement that suggests it was other than complete on delivery on 2 June 2017. 7. Why the report needed to be revised is entirely unclear as is the precise extent of the revisions sought, or how they relate to legal advice (if at all). Council's failure to disclose the initial report in response to FHG's access request means it is not possible to compare the two versions of the report to see how they differ. I do not accept that by seeking legal advice (or amendments) with respect to an existing document, one thereby clothes the document with legal professional privilege. Council has not pointed to any authorities that support this proposition. I have not had the opportunity of view the original report so as to compare it with document 14 and can only speculate as to their similarities. What attachments each have are unknown to me. 8. The reality is that document 14 is a revised copy of the original O'Connell report, which, on the evidence before me, was not obtained for dominant purpose of obtaining legal advice and, in the creation of which, lawyers were not involved. The fact that legal advice has subsequently been obtained about it, and alterations procured, does not demonstrate that the dominant purpose for which it was created has changed. There is no evidence before me as to what amendments were sought by Council's solicitors or of the purpose underlying those requests. Evidence about such matters is the appropriate starting point for a consideration as to whether document 14 is or is not privileged: see AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] where Young J set out his understanding of the relevant principles. See also Desiatnik, Legal Professional Privilege in Australia, 3rd Ed (2016) Lexis Nexus, Ch 3, "Definition and application of legal professional privilege." 9. As I have already mentioned, in addition to bearing the burden of proof with respect to legal professional privilege, Council also bears the onus of proving its decision with respect to the access application is justified under s 105 of the GIPA Act. With respect to document 14 Council has not discharged its onus. The evidence it has provided is slim at best and is deficient, as I have outlined above. Council has not persuaded me that document 14 if subject to legal professional privilege. 10. I note that document 14 does contain information the disclosure of which may identify children involved and may identify who made a complaint under s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). This is discussed below. In its submissions Councill has not addressed what should happen with document 14 if the primary submission that it is subject to legal professional privilege should fail. In evidence Ms Karakai said that, in that event, document 14 should not be released because it would disclose children's names and 'privacy information'. 11. I have concluded that I should remit the decision with respect to document 14 for reconsideration by Council in the accordance with this decision. Whether documents 1, 2, 3 and 4 contain information that is the subject of an overriding secrecy law? 1. As already noted, s 11 of the GIPA Act provides that a law listed in Sch 1 - an overriding secrecy law - is not overridden by the GIPA Act. 2. Schedule 1, cl 6 provides - (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. 1. Schedule 2 then sets out what constitutes excluded information of particular agencies. A note to the Schedule provides – Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1. Relevantly, the Schedule goes on to specify – 2 Complaints handling and investigative information … The office of Ombudsman—complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). … The Office of the Children's Guardian—reportable conduct matters under Part 4 of the Children's Guardian Act 2019 (including report handling, investigative and reporting functions, and any functions of the Children's Guardian relating to Official Community Visitors appointed under the Children's Guardian Act 2019). 1. In the present case, documents 2, 3 and 4 are said to be notifications of reportable conduct made in July 2017 and January 2018 to the Ombudsman under what was then s 25C of the Ombudsman Act 1974 (NSW). Until 1 March 2020 child protection reports were made to the Ombudsman under that section and other provisions found in the then Part 3A of the Ombudsman Act. From that day onward, those obligations are found in Part 4 of the Children's Guardian Act 2019 (NSW), particularly s 29. Clause 9 of Sch. 4 of that Act provides for the transfer of the Ombudsman's records to the Children's Guardian, which were then to be treated, "as if it were a record that the Children's Guardian had lawfully obtained in the performance of the Children's Guardian's functions." 2. With respect to the notification forms and a "letter dated 17 May 2018" from the NSW Ombudsman to Council's General Manager (document 19), the Children's Guardian has consented to the release of the information to FHG. 3. Despite this Council continues to claim that the information is excluded information of an agency (itself) and that it has not consented to the release of the information in issue. This argument must fail. Excluded information is information that relates to information of an agency specified in Sch 2. Both the Ombudsman and the Children's Guardian and their complaint handing functions are specified as such in Schedule 2. Council is not such an agency. The GIPA Act does not provide that information that Council holds is excluded information. Therefore, Council cannot maintain its objection to the release of excluded information when the Children's Guardian has consented to that release. 4. That, however, is not the end of the matter. Clause 10 of Sch 1 provides – It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. 1. This is an additional ground upon which Council relies for maintaining that the there is a conclusive presumption of an overriding public interest against disclosure of this information. If the information in issue is information to which s 29 applies, then this is an additional ground upon which Council can rely. This is so despite the fact that I have found that the information is no longer excluded information because of the consent to its release from the Children's Guardian. 2. Section 29 of the Children and Young Persons (Care and Protection) Act relevantly provides: (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons— (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil or criminal liability against the person making the report, and (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings)— (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with— (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. 1. All the material before me, including the description of the information provided by the Children's Guardian, points to the fact that the information in issue, relating to reports in documents 2, 3 and 4 made to the Ombudsman, concerns the welfare of children. I have not seen the information itself and cannot require its production. On its face it is information that is the subject of a conclusive overriding public interest against disclosure under cl 10 of Sch 1 of the GIPA Act. 2. In submissions FHG argued that it was incumbent on Council to produce evidence that the information was reported to the Ombudsman in good faith. In doing so, FHG relied on s 105 of the GIPA Act when he argued that Council should demonstrate that that the reports were made in good faith. 3. Section 105 of the GIPA Act places the burden of establishing that a decision is justified lies on the agency. To read that as extending to require an agency to negative every possible attack upon its decision making, to the extent of breaching legislated secrecy requirements, is to ask the impossible. Here for example, there is no evidence before the Tribunal as to who made the reports or their motivations for doing so. There is material that establishes that there were allegations made about FHG's conduct towards children, which were taken seriously by Council. FHG speculates that they might be fellow workers or supervisors, who he was in dispute with, and that their motivation was to tarnish his name. 4. There is therefore no evidence – only FHG's speculation - of the motivation behind the reports. Given the provisions of s 29 of the Children and Young Persons (Care and Protection) Act, Council is prohibited - as is this Tribunal – from seeking to identify the report makers or investigating their motives. There are real practical and evidentiary problems resulting from FHG's suggestion that the reports are made in good faith. 5. In the absence of any evidence, FHG's speculations as to the identity and motivations of the people who made the reports, do not deserve any weight. There is nothing in the material before me that leads me to doubt that the reports were made in good faith. I am satisfied that that the reports were made to the Children's Guardian in good faith. 6. Next there is document 1, the letter from FACS (as it then was) to Council dated 18 March 2017. As it is claimed that this document is the subject of a conclusive overriding public interest against disclosure under cl 10 of Sch 2, it has not been disclosed to me. There is a letter from the Department of Communities and Justice, Legal, – the successor of FACS – written by a Senior Solicitor and dated 9 July 2021 objecting to the release of document 1 on the ground that release breach s 29(1)(f) of Children and Young Persons (Care and Protection) Act. Council maintains the same position. Given the nature of that letter and its central role to the investigations of FHG's conduct by Council, I think it probable that the letter contains information of the kind specified in s 29(1)(f). I am therefore satisfied that there is a conclusive presumption of an overriding public interest against disclosure with respect to document 1. Whether following the application of the public interest test to the remaining information in dispute under requests 1, 2 and 3, as disclosed by Council, FHG should have access to any and what information? The information in issue 1. The remaining information in issue with respect to FHG's access requests numbered 1, 2, and 3 is: 1. Document 6 – an anonymous handwritten note raising conduct issues concerning FHG dated 7 October 2016. 2. Document 7 – notes dated 7 October of an interview conducted by Council staff. 3. Document 8 – notes/record of meeting of Council staff concerning child protection concerns dated 13 October 2016 with added note dated 26 May 2018. 4. Document 9 – internal email chain 25 November 2016 to 9 December 2016. 5. Document 11 – email from Cathy Zammit to Warren Taylor dated 1 May 2017. 6. Document 12 – email from FACS to Council regarding a risk of harm report concerning FHG dated 20 July 2017. 7. Document 13 – email from Council to FACS dated 24 July 2017. 8. Document 14 – The Wise Report dated 5 February 2019 and covering letter. 9. Document 19 – letter from the office of the Ombudsman to Council dated 17 May 2018. Public interest considerations against disclosure. 1. In the decision Ms Karaki relied on the public interest considerations against disclosure in clause 2(a) and (b), and clause 3(g) of the Table to section 14 – quoted above at paragraph 36 - when deciding not to grant FHG access to any of this information, even in redacted form. Council therefore decided that release of any of the information could be reasonably expected to: 1. reveal or tend to reveal the identity of an informant or prejudice the future supply of information by an informant (cl 2(a)); 2. endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person (clause 2(d)); 3. in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed (clause 3(g). 1. In the course of her evidence, I asked Ms Karaki why the release of any of the information in redacted form was not appropriate. She told me there was a problem with revealing information which would lead to the identity of the children concerned or their parents being disclosed. Public interest consideration in favour of disclosure. 1. In my opinion there are a number of public interests in favour of disclosure of the information in issue to FHG. Much of it includes his personal information as defined in cl. 4 of Sch 4 to the GIPA Act, namely : (1) … information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. That of itself is a public interest consideration in favour of disclosure, as is the general public interest in favour of the disclosure of government information: see s 12. In addition, in the circumstances of this case, the following public interests in favour of disclosure apply. Disclosure of the information could reasonably be expected to enhance local government's accountability in its dealings with complaints about the conduct of employees, the investigation of such complaints, and Council's fairness, transparency and accountability in considering such complaints and undertaking investigations. Factors personal to FHG. 1. FHG [Not for Publication]. He has lost work as a result. He says his Working With Children Check Clearance was suspended. He complains that he has been treated unfairly and has been the subject of a number of inquiries, some of which have denied him procedural fairness. A report from his General Practitioner indicates that he has been ruminating on the unfairness of his treatment and has been diagnosed with severe chronic depression. Those factors can be taken into account as factors in favour of providing FHG with access to the information he seeks (see s 55(2)). With respect to clauses 2 to 5 of the Table to s 14, they can also be taken into account as factors against disclosure, to the extent that they are relevant to concluding that the disclosure could be expected to have one of the effects specified in those clauses. Applying the public interest test. 1. In applying the public interest test set out in s 13 it is necessary to consider much of the information in issue separately, although some pieces of information raise the same issues and can be considered together. Document 6. 1. Document 6 is an anonymous, handwritten note that makes specific allegations about FHG's conduct towards named children. The author's handwriting is distinct and will be recognisable to anyone who knows it. Disclosure will likely reveal the identity of the informant to anyone who recognises the handwriting. In this regard, it is important to remember that disclosure of information under the GIPA Act is unconditional: s 73. It has been described as disclosure to the world. In addition, it is clear that disclosure would reveal the names of children who were alleged to be victims of misconduct. The disclosure of such allegations, where their identities are known would not be in their best interest. It would publicly out them as potential victims of abuse. In my view, these factors against disclosure deserve significant weight. 2. In the absence of any evidence, beyond assertions from Council, I do not accept that release could be reasonably expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person. No credible explanation as to how that could occur was advanced by Council. As the Information Commissioner pointed out in submissions, something more that a risk, possibility or chance of prejudice or endangerment is required: Flack v Commissioner of Polce [2011] NSWADT 298 at [25]. There must be real and substantial grounds making the endangerment or prejudice reasonably foreseeable. There is no evidence before me which justifies such a conclusion. 3. Also deserving of weight are the factors outlined above in favour of disclosure as well as FHG's own personal factors. 4. If document 6 were not in an individual's recognisable handwriting I would take the view that it should be released with any identifying information relating to children redacted. Because it is in identifiable handwriting, I have reached the conclusion that the considerations against disclosure outweigh those in favour. 5. I agree that document 6 should not be released. Document 7 and Document 8. 1. Document 7 contains typed notes made by a named, senior member of Council staff of a discussion with a named informant (including other identifying information of all participants such as title and gender) in which allegations of misconduct by FHG in respect to named children was discussed. It contains details of the place where the alleged misconduct occurred, from which a person familiar with those details may be able to deduce the names of the children concerned and of the informant. It also details some of the allegations against FHG. 2. Document 8 comprises notes of a meeting on 13 October 2016 and handwritten notes added by a senior officer on 26 May 2019. It contains similar information to document 7. 3. I accept that disclosure of these documents would result in names of the children concerned and being revealed. Disclosure of identifying information relating to the informant(s) could result in their identity being revealed or easily deduced. I also accept that disclosure of details of the place where the alleged misconduct occurred could result in the identities of the informant(s) and the children being deduced. I am satisfied that there is a public interest against that disclosure and that such disclosure is not in the best interest of children concerned for the reasons outlined above. These are factors deserving of considerable weight. 4. I do not accept that disclosure of the name of the senior officers who took the notes or participated in the meeting would result in the disclosure of anything more than that they were engaged in public duties when conducting the interview and making the notes: see Cl 4(2)(b) of the definition of personal information in Sch 4. 5. For the same reasons as those outlined in paragraph 108 above, I do not accept that release could be reasonably expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person. 6. When weighing the public interests, the public interest factors in favour of disclosure and the personal factors affecting FHG are deserving of considerable weight. It is important that institutions such as Council are accountable for actions in the protection of children, and in their treatment of staff against whom misconduct allegations are made. 7. Balancing these competing interests, I have concluded that documents 7 and 8 should be released with identifying information of the informant, of the children, and details of the place(s) where the misconduct allegedly occurred redacted. Document 9 1. This is an email chain between employees of Council between 25 November 2016 and 9 December 2016. It contains observations of and statements of opinion about FHG in the workplace by one of the authors. It specifies complaints and observations made by identified persons. It does not identify any children. 2. I accept that disclosure is likely to reveal the identity informants and that this is a factor deserving of considerable weight. I do not accept that disclosure would reveal personal information of child, or would endanger any system or procedure for protecting the life, health and safety of any person. There is no evidence or material that suggest this is likely to be the case. 3. In favour of disclosure are the public interests discussed above and FHG's personal factors, which also carry considerable weight. 4. On balance, I consider that identifying information relating to who supplied information relating to FHG should be redacted, with the rest of the document to be disclosed. Document 11. 1. This is an email from Cathy Zammit of Council to Warren Taylor dated 1 May 2017. Paragraph 1 contains details of document 1 in the most general terms, which are already known to the parties. I have already found document 1 to be the subject of a conclusive public interest consideration against disclosure. Document 11 contains details of investigations about the report received from FACS, made by Council. The balance of the document 11 contains details with respect to FHG's employment with Council. 2. Document 11 does not contain identifying information relating to any informant or complainant. It does not disclose the contents of document 1. No children's names or other identifying information is mentioned. I do not accept that the release would disclose the name of an informant, endanger or prejudice any procedure for protecting the life health or safety of any person, or disclose personal information relating to a child. 3. In favour of disclosure are the public interests discussed above and FHG's personal factors, which also carried considerable weight. 4. In those circumstances document 11 must be released without redactions. Document 12. 1. This is an email from FACS to Council dated 20 July 2017 which contains specific details about a report received relating to alleged misconduct by FHG. It contains details of dates, places and persons involved, including details of children. In my opinion release of this information could identify the children involved. This would not be in their best interest. It includes information about the source of a report about alleged misconduct, which could enable the identity of an informant to be disclosed. Once again, I accept that disclosure of this information is not in the public interest. These factors deserve significant weight. 2. I do not however accept that release of any of the information would endanger or prejudice any procedure for protecting the life health or safety of any person. There is no basis for Ms Karaki's speculation that if FHG approached informants, they would be discouraged from providing information in the future, and would thereby prejudice or endanger the safety of children, rather than procedures for preventing harm. Council has produced no evidence that points to FHG approaching informants and/or the children being a real concern. 3. The email also contains requests for information about FHG. I do not accept the release of this part of the email (the last two paragraphs) would result in any of the consequences claimed by the Council. In favour of disclosure are the public interests discussed above and FHG's personal factors, which also carried considerable weight. 4. On balance, I conclude that this email should be disclosed with all but the last two paragraphs redacted. Document 18. 1. This is a 95 page report from Wise into allegations concerning misconduct by FHG. It contains details of the allegations and an outline of the evidence obtained from various people (some of whom were informants) relating to them. The names and other identifying information of children involved are given, as are details of informants and various staff. It also contains summaries of responses provided by FHG to allegations put to him. The report discusses the evidence before it relating to each allegation and gives reasons for the conclusions it reaches. The report refers to a series of attachments which are not among the material disclosed to the Tribunal. The failure by Council to disclose relevant material and to selectively provide it (confidentially) to the Tribunal is a repeating problem in this matter. 2. Council has refused access to the entire report. I am unable to see how this decision was reasonably reached. 3. I do not accept that release could be reasonably expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person. In her statement Ms Karaki does not address the impact of release on systems or procedures for protecting, the life, health or safety of any person. 4. For the reasons I have outlined above in respect to other information, I accept that disclosure of information in the Wise Report, could disclose identifying personal information in relation to children concerned, which would not be in their best interest and constitutes a public interest consideration against disclosure. This includes para 5.12 which includes a direct quote from document 1. Similarly, the release of identifying information that would disclose the identity of an informant, or enable their identity to be deduced, is not in the public interest. These are factors against release that deserve significant weight. 5. The Wise Report also contains information provided by FHG, a narration of the history of investigation into his conduct, summaries of evidence, and discussions and conclusions reached with respect to various allegation. Much of this does not contain information about children or informants, or if it does, contains information that could easily be redacted. 6. Release of Document 18 would undoubtedly advance the public interests in favour of disclosure that I have already identified and would also satisfy FHG's personal factors in favour of disclosure. There is a considerable public interest in that occurring. 7. On balancing the competing public interests, I have concluded that document 18 should be released subject to redactions of any identifying information relating to informants and children involved. 8. It will be necessary to again remit this part of the decision to Council to carry out the necessary redactions. 9. At the same time FHG's access application insofar at it relates to any fresh information located, referable to paragraph 78(4) above, and the documents that should have been annexed to document 18, should be considered. Document 19. 1. Document 19 is a letter from the Office of the NSW Ombudsman to Council dated 17 May 2018 regarding FHG. Among other things it contains references to the allegations made against FHG, with references to identifying personal information with respect to informants and children. It also provides details of a number the allegations against FHG. 2. It is to be noted that the Children's Guardian has consented to its release to FHG and that it is not a document to which Clause 10 of Sch 2 applies. 3. Insofar as the letter contains identifying personal information relating to informants and children, or details concerning places that may enable informant's and children's' identities to be deduced, I am reasonably satisfied that: 1. release of such information would reveal or tend to reveal their identities and would not be in the best interest of the children concerned, publicly identifying them as the subject of alleged misconduct; 2. release of such information would reveal or tend to reveal informants identities; and, 3. release could not be reasonably expected to endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person. 1. Those public interest considerations against disclosure that I have accepted deserve significant weight. They are to be balanced against the public interest considerations in favour of disclosure that I have identified (together with FHG's personal factors in favour of disclosure) which merit considerable weight. 2. Have weighed those competing interests, I have come to the view that document 18 should be released subject to the redaction of identifying personal information relating to informants and children, or details concerning places, which may enable their identities to be deduced. 3. This does not extend to the redaction of allegations of facts, just to redacting details that may reveal identities. I note that much of document 18 does not raise such issues. What is the correct and preferable decision with respect to request 4? 1. This request sought – … financial expenditure records of Cumberland Council for 'all external workplace investigations into allegations of reportable conduct from staff against children each year from 2014 – 2020. 1. Council's decision was that its financial records are not journaled in "this particular format" and therefore Council was unable to provide the information. In submissions, Council suggested that this "more fittingly" should have been a decision that the information was not held. 2. Council did not produce evidence from anyone familiar with its accounting systems. Instead, it relied on hearsay evidence from Ms Albazouni and Ms Karaki to the effect that they were told by accounts that the information FHG wanted could not be accessed, because the financial records are not organised and journaled in a way that enables the information he wants to be accessed. There is no evidence that FHG was alerted to this problem or invited by Ms Albalzouni, or by Ms Karaki, to amend his request to express his request in a form more suited to Council's accounting system. 3. The decision made on internal review is not one authorised by s 58 which sets out the decisions an agency can make with respect to an access application (quoted at paragraph 53). As such no decision contemplated by s 58 has been made by Council. I did consider treating the decision as one where the information is not held, but decided not to do so because: 1. I have already decided the Council cannot simply change the grounds it relied on for its decision; and 2. what evidence there is on the issue suggests that the information FHG wants is likely to be held by Council, but not accessible in the form he is asking for, if, indeed, it can be reasonably accessed. 1. I have concluded that this aspect of the decision under review (that concerning request 4) should be remitted to Council for reconsideration, with the recommendation that FHG be consulted with a view to narrowing and refining his request. Whether FHG should be granted access to documents 21 to 24 in accordance with request 5? 1. In response to request 5, Council, among other things, referred FHG to four documents. They were: 1. the Code of Conduct; 2. Procedures for the Administration of the Code of Conduct; 3. Compliments and Complaints Management Policy; and, 4. Compliments and Complaints Management Guidelines. 1. Section 59 of the GIPA Act provides: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is— … (e) publicly available on a website, or (f) available to the applicant by way of a standing rule or order of the Legislative Council or Legislative Assembly. (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant. 1. The internal review decision did not provide details of how FHG could access those documents. In her first statement Mr Karaki provided those details. They are: http://www.cumberland.nsw.gov.au/cpiuncil-policy-documents. 2. On review, I find that the information responsive to request 5 is already available to FHG. Orders. 1. In the light of all of the above I make the following orders: 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited. 2. The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant's access requests numbered 1, 2 and 3, and in its place orders that: 1. The applicant be provided with unredacted copies of the documents identified in Mr Karaki's statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20; 2. The applicant is refused access to documents 1 and 6; and, 3. The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022. 1. The Tribunal remits for reconsideration in accordance with these reasons the Applicant's access request numbered 4, such reconsideration to be completed by 30 January 2022. 2. The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant. ********** 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 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 Amendments 08 March 2022 - Pursuant to s63 of the Civil and Administrative Tribunal Act, Paragraph [29](4) amended to meet publication restriction. 20 May 2022 - Pursuant to s63 of the Civil and Administrative Tribunal Act 2013 the Tribunal makes a further order s 64(1) of the Civil and Administrative Tribunal Act 2013 under which it orders that the following parts of the decision in FGH v Cumberland City Council [2021] NSWCATAD 379 be no longer published or disclosed: Parts of [3] and [120]. 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: 20 May 2022