EHW v Secretary, Department of Education [2022] NSWCATAD 140

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EHW v Secretary, Department of Education [2022] NSWCATAD 140 Hearing dates: 21 December 2021 Date of orders: 16 May 2022 Decision date: 16 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Gracie, Senior Member Decision: 1. Affirm the respondent's Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 to: a. refuse the applicant access to the information referred to in the Decision Schedule; b. refuse to deal with those parts of the Access Application in reliance on s 60(1)(d) of the Government Information (Public Access) Act 2009 (NSW). 2. The correct and preferable decision in the Notice of Decision made under the Government Information (Public Access) Act 2009 (NSW) dated 15 April 2021 is to refuse to deal with those parts of the Access Application in reliance on s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW). Catchwords: ADMINISTRATIVE REVIEW - government information (public access) - conclusive presumption against disclosure – privileged communications – care and protection of children - public interest in favour of disclosure – personal information - information concerning applicant's children - public interest against disclosure – disclosure that may prejudice the agency's functions – disclosure that may reveal personal information – disclosure that may expose a person to risk of harm, serious harassment or intimidation – where disclosure not in the best interests of a child - information protection principle and meaning of public disclosure - balancing of public interests – public interest test - overriding public interest against disclosure – agency's discretion to refuse to deal with access application – information previously produced under subpoena – unreasonable and substantial diversion of resources Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Inclosed Lands Protection Act 1901 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60 Commissioner of Police v DYD [2020] NSWCATAP 224 Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAD 19 Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 Department of Education and Communities v VK [2011] NSWADTAP 61 Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29 ECN v Commissioner of Police (NSW) [2020] NSWCATAD 153 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Head v Commissioner of Police (NSW) [2010] NSWADT 27 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Jenkinson v Department of Education and Communities [2013] NSWADT 280 Kanak v NSW Department of Education [2017] NSWCATAD 206 Learmouth v Secretary Department of Education [2020] NSWCATAD 109 Leech v Sydney Water Corporation [2010] NSWADT 298 Mansfield v Department of Family and Community Services (NSW) [2014] NSWCATAD 43 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 Medlyn v Commissioner of Police [2020] NSWCATAD 125 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Nasr v New South Wales (2007) 170 A Crim R 78 Office of Finance and Services v APV and APW [2014] NSWCATAP 88 Raven v University of Sydney [2015] NSWCATAD 104 Singh v Legal Aid Commission (No 2) NSWCATAD 5 Snape v Commissioner of Police [2022] NSWCATAP 63 Taylor v Destination NSW [2017] NSWCATAD 272 The Application of the Attorney General of NSW (2014) 341 ALR 340 Thomson v Commissioner of Police [2021] NSWCATAD 53 Transport for NSW v Searle [2018] NSWCATAP 93 Woolley v Lismore City Council [2013] NSWADT 10 YG and GG v Minister for Community Services [2002] NSWCA 247 Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175 Category: Principal judgment Parties: EHW (Applicant) Secretary, Department of Education (Respondent)