Druett v Director General, Department of Community Services & anor (No. 2) [2004] NSWADT 269

CITATION: Druett v Director General, Department of Community Services & anor (No. 2) [2004] NSWADT 269 revised - 23/11/2004 DIVISION: General Division APPLICANT Garry Druett PARTIES: FIRST RESPONDENT Director General, Department of Community Services SECOND RESPONDENT Premier (as Minster administering the Freedom of Information Act 1989) FILE NUMBER: 033309 HEARING DATES: On the papers SUBMISSIONS CLOSED: 11/08/2004 DATE OF DECISION: 11/22/2004

BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - confidential material - access to documents - law enforcement & public safety - access to documents - secrecy provisions - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - secrecy provisions MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Freedom of Information Act 1989 CASES CITED: Druett v Director General, Department of Community Services [2004] NSWADT 181 APPLICANT REPRESENTATION: In person FIRST & SECOND RESPONDENTS M Allars, counsel ORDERS: The decision of the Director General in respect of Documents No. 62, 203, 220, 222 and 253 in Schedule A is affirmed.

REASONS FOR DECISION 1 This decision deals with those matters that remain outstanding from Mr Druett's application for review of the Director General's decision to refuse him access to certain documents or part of a document that came within Mr Druett's freedom of information request under the Freedom of Information Act 1989 ("the FOI Act") and which was held by the Department. What remains outstanding is a determination in respect of deletions in 5 documents that the Director General has claimed are exempt. 2 The Tribunal's decision in respect of all the other documents for which an exemption was claimed was published on 24 August 2004: see Druett v Director-General, Department of Community Services [2004] NSWADT 181 ("the published decision in Druett"). 3 The 5 documents that remain outstanding are as follows: Doc No Date Description 62 16/04/1996 File Note 203 16/02/1996 Report 220 Undated Report - risk assessment report 222 Undated Report - risk assessment report 253 26/08/1996 File Note 4 As mentioned above, the Director General has only refused access to certain parts of these documents. Mr Druett has otherwise been provided with a copy of the document with the exempt material deleted pursuant to s. 25(4) of the FOI Act. As explained at [61] of the published decision in Druett the Tribunal was unable to make a determination in respect of Document No 203, 220, 222 and 253, as it had not been provided with a copy of these documents in their undeleted form. In the case of Document No 62, the Tribunal had not been provided with a copy of the document with the exempt material deleted. The Director General subsequently provided the Tribunal with a copy of these documents. With the exception of Document 62, these were provided on a confidential basis. 5 Following the publication of the decision in Druett, Mr Druett advised the Director General that he wished to continue to pursue his application for review of the Director General's decision in respect of the deletions in the abovementioned documents. 6 At a planning meeting, on 23 September 2004, a timetable was set in order for the Director General to file any additional evidence and submissions in respect of the deletions in the abovementioned documents. The timetable also provided Mr Druett with an opportunity to file and serve any material in reply. 7 At the planning meeting, the parties also agreed that the Tribunal was to determine this part of Mr Druett's application on the papers. 8 On 15 October 2004, the Director General filed two statements of evidence. One statement, dated 13 October 2004, was made by Terrence Arthur Meader, who is the freedom of information coordinator within the Respondent Department. The other statement was that of Janice Visinko, a former child protection caseworker specialist of the Respondent Department. In addition to this, on 21 October 2004, the Respondent Department filed and served supplementary submissions. 9 Mr Druett also filed material on 25 October 2004 and 8 November 2004. This material was largely of no relevance to the matters at issue before the Tribunal, and related to Mr Druett's ongoing desire to be given access to his children and to be provided with the reasons why his children were removed from his care. 10 The Director General has claimed that the deletions in Document No 62, 203, 220 and 222 are exempt under s. 29(5) of the Children and Young Persons (Care and Protection) Act 1998 and also under the following clauses in Schedule 1 of the FOI Act: - Clause 4(1)(b) - a document effecting law enforcement and public safety by enabling the existence or identity of a confidential source of information in relation to the enforcement of the administration of law to be ascertained - Clause 12(1) - a document the subject of a secrecy provision and the disclosure of which would constitute an offence - Clause 13(b) - the document contains a matter the disclosure of which would disclose information obtained in confidence and which could reasonably be expected to prejudice the future supply of such information to the government or an agency, and which on balance would be contrary to the public interest. 11 The Director-General has claimed that Document No. 253 is exempt under s. 29(5) of the Children and Young Persons (Care and Protection) Act 1998 and Clause 13(b) of the FOI Act. 12 The relevant provisions are set out in full in the published decision in Druett and it is unnecessary repeat them. Document No. 203 13 Attached to the statement of Mr Meader is a certificate, pursuant to s. 29(1A) of Children & Young Persons (Care & Protection) Act 1998, by Roderick Best, a delegate of the Director General, certifying that the first two paragraphs in Document No 203 were reports coming within s.29 of that Act. 14 As explained in [57] of the published decision in Druett this certificate, without evidence to the contrary, is proof of the fact that the document so far as it relates to these two paragraphs is an exempt document for the purposes of the FOI Act: see s.29(5) of the Children & Young Persons (Care & Protection) Act 1998. There is no evidence to the contrary, accordingly I find that the document in respect of these two paragraphs are exempt. However, I note that Mr Druett has already been provided with an edited version of this document, which includes portions of these paragraphs. Notwithstanding this, I am satisfied that the deletions are exempt under s.29(5) of the Children & Young Persons (Care & Protection) Act 1998 and also under cl.4(1)(b) of Schedule 1 of the FOI Act. Documents 220 and 222 15 In her statement, Ms Visinko said that Documents No. 220 and 222 were part of a single document that she had prepared in 1996 while she was employed with the Respondent Department. She also states that the matters that were omitted from these documents recorded notifications that were made to the Respondent Department in respect of Mr Druett's children. 16 In his statement, Mr Meader stated that the deleted matters identified persons and/or organizations, which had raised child protection concerns in relation to Mr Druett's children. A disclosure of these, he stated, would reveal a confidential source of information in relation to the enforcement and administration of the law and that the deletions were required in order to maintain the confidentiality of the sources. 17 He also stated that a disclosure of such notification could adversely affect future supply of such information to the Respondent Department. This would severely affect officers of the Respondent Department to fulfil their statutory duties relating to the protection of children in need of care. 18 On the basis of the evidence given by Ms Visinko and Mr Meader, together with my examination of the documents in full, I am satisfied that the deleted material in Document No 220 is a report coming within the terms of s.29 of the Children & Young Persons (Care & Protection) Act 1998 and is exempt under s.29(5) of that Act. 19 In respect of Document No 222 I am satisfied that the deletion is exempt under cl.13(b) of Schedule 1 of the FOI Act. Document No. 62 20 Mr Meader in his statement states that Document No. 62, which was prepared by a child protection casework specialist of the Respondent Department, recounts the concerns of a medical practitioner as to the welfare of one of Mr Druett's children. Mr Meader goes on to state that disclosure of the deleted material would disclose the identity of the medical practitioner who had raised the child protection concerns on a confidential basis. Having regard to the circumstances in which this particular document came into existence and its contents I am satisfied that the deletion is exempt under cl.4(1)(b) and cl.13(1)(b) of Schedule 1 of the FOI Act. Document No. 253 21 In his statement, Mr Meader stated that Document No. 253 was a note made by an officer of the Respondent Department and that it concerned the welfare of one of Mr Druett's children. Again the deleted material is information that would enable the person who raised, on a confidential basis, the concerns about Mr Druett's child to be identified. I also accept Mr Meader's statement that the Respondent Department relies on this type of information in order to perform its functions and that a disclosure of this person's identity may prejudice future supply of this type of information. Accordingly, I am satisfied that the deletion is exempt under cl.13(1)(b) of Schedule 1 of the FOI Act. 22 For the reasons set out above I find that the Director General's decision in respect of Document No 62, 203, 220, 222 and 253 is the correct and preferred decision. Orders 23 For the reasons set out above, in my opinion the Director General's decision in respect of Documents No. 62, 203, 220, 222 and 253 in Schedule A is the correct and preferred decision. 24 The Tribunal orders: The decision of the Director General in respect of Documents No. 62, 203, 220, 222 and 253 in Schedule A is affirmed. Decision revised 23 November 2004 – paragraphs 14 & 20 should read cl.4(1)(b) not cl.4(1)(d)