Fagan v Department of Education and Training [2008] NSWADT 163

CITATION: Fagan v Department of Education and Training [2008] NSWADT 163

DIVISION: General Division

APPLICANT Patricia Ann Fagan PARTIES: RESPONDENT Department of Education and Training

FILE NUMBER: 073229

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27 May 2008

DATE OF DECISION: 6 June 2008

BEFORE: Handley R - Deputy President

CATCHWORDS: Access to documents - secrecy provisions

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Freedom of Information Act 1989

Commissioner for Fair Trading, Office of Fair Trading v Australian Wine Consumers Co-operative Society Ltd (GD) [2007] NSWADTAP 14 WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502 CASES CITED: Saleam v Director General, Department of Community Services [2002] NSWADT 41 University of New South Wales v McGuirk [2006] NSWSC 1362 Law Society of NSW v WorkCover Authority (NSW) (No 2) [2005] NSWADTAP 33 Cianfrano v Director General, Premier's Department [2007] NSWADT 216

APPLICANT In person REPRESENTATION: RESPONDENT S Bilbe-Taylor, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 This matter involves an application by Patricia Fagan for the review of a decision of the Department of Education and Training ('the Department') under the Freedom of Information Act 1989 ('the FOI Act') to refuse Ms Fagan access to a report concerning her son. Background 2 On 21 March 2007, Ms Fagan applied to the Department under the FOI Act requesting a "copy of a report dated 10/11/06 by the Principal, Mr Greer, of Bradbury Public School" ('the report') concerning her son, Rhys Terence Abela. She said the report had been sent to the Department and also the Department of Community Services. The Department responded by asking for a fee of $30, which Ms Fagan paid. 3 By letter dated 30 April 2007, the Department notified Ms Fagan of its decision to refuse access to the report on the ground that it was an exempt document pursuant to clause 12 of Schedule 1 of the FOI Act. The Department stated that release of the document to Ms Fagan would constitute an offence under a provision of a New South Wales Act, and to indicate which specific Act this was would reveal information which could itself constitute an offence under that Act, and would also render the Department's determination an exempt document under the FOI Act pursuant to section 45(1). 4 By letter dated 22 May 2007, Ms Fagan sought an internal review of this decision and paid the $20 fee requested. Having not received a determination within 14 days, Ms Fagan treated this as a deemed refusal (section 34(6)) and, on 25 July 2007, applied to the Tribunal for a review. 5 After discussion at a Planning Meeting I conducted with the parties on 18 September 2007, Ms Fagan made a fresh, more broadly drawn FOI application. However, this did not result in her obtaining access to other relevant documents concerning her son as she had hoped. On 11 December 2007, I conducted a second Planning Meeting with the parties at which I made directions setting a timetable for the exchange of documents with a view to, with the consent of the parties, deciding the matter 'on the papers'. In accordance with the timetable, Ms Fagan filed her submissions on 7 January 2008. The Department was required to file any response to Ms Fagan's submissions by 6 February 2008, but did not do so, and did not inform the Tribunal of its intention not to do so. 6 After a telephone call from Ms Fagan on 27 May 2008 to check on progress in this matter, the Tribunal phoned the Department's representative and was informed that the Department did not intend to make any further submission. Ms Fagan's evidence and submissions 7 In her submissions filed on 7 January 2008, Ms Fagan said she "sustained a severe spinal injury which severely limited her ability to care for Rhys on a full-time basis". She was "frequently admitted to hospital for spinal procedures and pain management clinics". As a result, during this time, her ex-husband, Geoffrey Abela, had primary care of Rhys, and Rhys lived with Mr Abela and his "de facto partner", Kareene Richardson. Rhys was born on 29 March 1996 and is aged 12. He suffers from "autism spectrum disorder". 8 Ms Fagan said after her divorce from Mr Abela, Rhys lived with Mr Abela and Ms Richardson for a period of five years. During this time, pursuant to the terms of their mutually agreed divorce settlement, to which the court consented, Ms Fagan and Mr Abela maintained a shared care arrangement, with Ms Fagan having access to Rhys every second weekend and for half the school holidays. Ms Fagan lives with her elderly mother. Ms Fagan stated that as a result of a dispute between her and Mr Abela in 2006 over their respective entitlements to social security benefits in respect of Rhys, Mr Abela repudiated their shared care agreement and denied her access to Rhys. Ms Fagan applied to the court, which confirmed the previously agreed arrangements. Rhys continued to live with his father. 9 Ms Fagan said that in November 2006, she was called to Bradbury Public School for a meeting with the Principal, Mr Greer, who asked about her knowledge of alleged mistreatment of Rhys by his father, his father's partner and their fostered son. Ms Fagan provided Mr Greer with photographs of bruising on her son's body and told him of what she knew from Rhys. Rhys' class teacher had also reported seeing bruising on Rhys. Mr Greer then completed the report dated 11 November 2006, which he submitted to the Department and the Department of Community Services, but he did not divulge the contents of the report to her. 10 Ms Fagan said that on 2 March 2007, after she had collected Rhys from his father for weekend access, she received a telephone call from Mr Abela stating that, despite the orders of the court, he did not want Rhys living with him again. Since this time, Rhys has been living with Ms Fagan at her mother's home and attending a local school nearby where he is making good progress. Ms Fagan said she has reported Mr Abela's conduct towards her since this time to the Police, which has resulted in his being called to the Police Station on three occasions and being issued with formal warnings. Rhys has also told his father that he does not want to return to live with him, or visit or see him. Ms Fagan said Rhys "is terrified of the prospect". 11 Ms Fagan said she needs the report to substantiate her verbal reports concerning Rhys for the following organisations: (1) Cabramatta High School, in relation to access, (2) Cabramatta Public School, for the School Counsellor who is treating Rhys, (3) the NSW Police Service – Cabramatta, to support an application for an Apprehended Violence Order, (4) the NSW Department of Housing, in support of her application for a permanent residence for herself and Rhys, (5) Centrelink, in relation to her claim for social security benefits, and (6) the Child Support Agency, to confirm that Rhys is in her permanent custody and care. Ms Fagan said the report would also provide support for Rhys' intended application to the court, after he turns 12 (on 29 March 2008), to seek an order from the court that he remain in her permanent custody and care and so that he is not required to maintain contact with his father. Ms Fagan said matters in the report that do not relate to Rhys are of no interest to her. The Department's submissions 12 The Department filed submissions at the first Planning Meeting on 18 September 2007, noting the history of Ms Fagan's application, set out above. The Department referred to section 55 of the FOI Act and the Tribunal's obligation not to reveal exempt matter, and its power to receive evidence and hear argument in the absence of the applicant or the public if, in its opinion, it is necessary to do so in order to prevent the disclosure of any exempt matter. In a confidential section of its written submissions, the Department then referred to other legislation that it submitted applied in this case. Discussion 13 Pursuant to section 16(1) of the FOI Act, "[a] person has a legally enforceable right to be given access to an agency's documents". However, section 25(1)(a) states that an agency "may refuse access to a document" if it is an "exempt document", the onus being on the agency to establish this. 14 Section 6(1) defines 'agency' as including a Government Department, and 'exempt document' as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clause 12, as follows: 12. Documents the subject of secrecy provisions (1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions. (2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence. 15 In its submissions, the Department referred to section 55, which states: 55. Procedure for dealing with exempt matter In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and (b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative. 16 The issue in this case is whether the Department's refusal of access to the report sought by Ms Fagan can be justified pursuant to clause 12. In the Department's original decision notified to Ms Fagan by letter dated 30 April 2007, the Department stated: "I do not propose to indicate which Act this offence provision is contained in, as to do so would in itself reveal information which may constitute an offence under that Act and would render this determination an exempt document under the FOI Act." 17 I am not satisfied that this is so, and I note the Department did not address this issue in its submissions filed on 18 September 2007. However, I am satisfied that the disclosure of the specific section of the Act relating to the information contained in the document to which access is sought would be likely to reveal the character of the information, and the Tribunal is precluded from doing this pursuant to section 55 of the FOI Act. The Act in question is the Children and Young Persons (Care and Protection) Act 1998 ('the 1998 Act'). Although the Department has not referred to it, I note that pursuant to section 254(1): (1) A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act or the regulations, or (c) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or (e) with other lawful excuse. Maximum penalty: 10 penalty units or imprisonment for a period not exceeding 12 months, or both. 18 The application of clause 12 of Schedule 1 has been the subject of discussion by the NSW Court of Appeal and the Appeal Panel of the Tribunal in a number of recent cases. In Commissioner for Fair Trading, Office of Fair Trading v Australian Wine Consumers Co-operative Society Ltd (GD) [2007] NSWADTAP 14 ('the Australian Wine Consumers case'), at paragraph 38, the Appeal Panel, referring to the NSW Court of Appeal decision in WorkCover Authority (NSW) v Law Society of NSW (2006) 65 NSWLR 502, said: "38 In summary, we agree with the submissions put by counsel for the Commissioner that the proper approach to the interpretation of clause 12 is to be found in the approach employed by the Court of Appeal in the WorkCover Appeal . The agency must first determine whether the 'matter' for which exempt status is claimed is 'matter' of a kind that it is an offence to disclose; and then examine whether there is any exception or qualification in the offence provision allowing for disclosure under the FOI Act. That is clearly the case where there is an express exception in the secrecy provision permitting disclosure under the FOI Act (as in the Casino Control Act , see further St Vincent Welch v Casino Control Authority [2001] NSWADT 89). The WorkCover Appeal makes it clear that a less-specifically expressed exception such as 'with lawful excuse' may be treated as an exception or qualification providing a basis for FOI disclosure." 19 In the present case, the Department has not included reference to the relevant case law in its written submissions filed on 18 September 2007. Nevertheless, in terms of the first part of the approach outlined above, I am prepared to assume that the Department seeks to rely on section 254(1) of the 1998 Act in the absence of advice to the contrary. The second step requires that exceptions or qualifications to the offence provision must be examined to see whether disclosure is otherwise allowed. 20 In my view, none of the specific exceptions set out in paragraphs (a) to (d) of section 254(1) apply, and there is otherwise 'no lawful excuse' for disclosure to bring this matter within paragraph (e). I am mindful of the Tribunal decision in Saleam v Director General, Department of Community Services [2002] NSWADT 41, where the effect of section 254(1) of the 1998 Act was also in issue. The President of the Tribunal, O'Connor DCJ, found that clause 12 applied in respect of various reports to which access had been sought, noting the "high public interest in effective child protection measures" (at paragraph 67). 21 Thus, I am satisfied that the document to which Ms Fagan seeks access contains matter the disclosure of which would constitute an offence against an Act, so that clause 12 of Schedule 1 applies making the document exempt. Section 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and it appears to the agency that the FOI applicant would wish to be given access to such a copy. I have examined the document, which has been supplied to me in confidence by the Department. In my view, given the nature and content of the document, it would be impracticable to give access to the document with exempt material deleted. 22 The remaining issue is whether the Tribunal should exercise the residual discretion in section 25(1) of the FOI Act to order the release of the document notwithstanding that is exempt: University of New South Wales v McGuirk [2006] NSWSC 1362 (Nicholas J) at paragraph 81 ff. In the Australian Wine Consumers case, the Appeal Panel suggested that "the four factors referred to by the Appeal Panel in the Law Society case [the decision that was the subject of the NSW Court of Appeal decision referred to above: Law Society of NSW v WorkCover Authority (NSW) (No 2) [2005] NSWADTAP 33] may have some value as a possible guide in that task". The factors referred to in that decision, at paragraph 144, are as follows: "(a) the degree of direction given by the legislation to the agency as to how the kind of information under notice is to be managed and divulged; (b) the breadth of any powers given to the agency to release the kind of information under notice; (c) the intrinsic sensitivity of the information; and (d) the likelihood that information of this kind would ever be released to the applicant having regard to the wider circumstances of the relationship between the applicant and the agency, to the extent that they are known." 23 In Cianfrano v Director General, Premier's Department [2007] NSWADT 216, at paragraph 24, the President of the Tribunal, O'Connor DCJ, emphasised that "the Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying overriding the exemption". At paragraph 27, he said: "Practical circumstances that might influence the Tribunal to exercise the discretion include: whether the exempt matter was, by other means, in the public domain whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity the public interest in an informed debate on issues of significance to the community whether there were adverse consequences for the proper administration of government, and their extent whether any adverse consequence is remote or innocuous." 24 In the present matter, I am satisfied that the report contains sensitive information the disclosure of which is prohibited by the 1998 Act. I note that although Ms Fagan has not seen the report, the circumstances in which the report was prepared, in which she was involved, make it likely that, in general terms, she is aware of its contents. I am not satisfied that, in the particular circumstances of this case, there is a wider public interest in disclosure of the report to Ms Fagan, and I am satisfied that disclosure could have adverse effects for the proper administration of government noting the special public interest in maintaining effective child protection measures which is reflected in provisions of the 1998 Act. 25 I note Ms Fagan's reasons for seeking access to the report – for its production to various organisations listed in paragraph 11 above. However, while I accept that she and her son have specific needs that must be justified in order to attract the support of those organisations, I am not satisfied that there are strong grounds justifying overriding the exemption in clause 12 of Schedule 1 of the FOI Act. It should be sufficient for Ms Fagan to produce a copy of the reasons for this decision to those organisations. Orders The decision under review is affirmed.