CITATION: Kirby v NSW Department of Community Services [2009] NSWADT 182 DIVISION: General Division APPLICANT David Kirby PARTIES: RESPONDENT NSW Department of Corrective Services FILE NUMBER: 093014 HEARING DATES: On the papers SUBMISSIONS CLOSED: 28 April 2009 DATE OF DECISION: 10 July 2009 BEFORE: Pearson L - Judicial Member CATCHWORDS: Access to documents – business affairs – personal affairs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 CASES CITED: Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Vincent Neary v State Rail Authority [1999] NSWADT 107 Searle Australia Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 APPLICANT In person REPRESENTATION: RESPONDENT R Young, solicitor ORDERS: 1. The decision of the respondent to refuse the applicant access to Documents 1 and 3 is affirmed 2. The decision of the respondent to refuse the applicant access to Document 2 is varied: (a) The respondent is to provide, 28 days after the date of this decision, a copy of the letter dated 3 August 2007 identified as Attachment 1 to the letter to the respondent dated 21 December 2007 with exempt matter deleted in accordance with paragraph 27 of these reasons. (b) The decision of the respondent to refuse the applicant to the letter dated 2 November 2007 identified as Attachment 4 to the letter to the respondent dated 21 December 2007 is affirmed. REASONS FOR DECISION 1 The applicant's son attended a Child Care Centre in Taree from 2006 until 7 August 2007. On 19 September 2007 he and his wife wrote to Ms Julie Deer, Children's Service Advisor of the respondent, to lodge a complaint about the practices and behaviour experienced at the Child Care Centre. 2 A copy of the complaint was provided to the Licensee, who by letter dated 21 December 2007 responded to the complaints. This letter had four attachments. 3 On 5 March 2008 the Director, Partnerships and Planning, Mid North Coast Network Office wrote to the applicant and his wife advising of the outcome of the complaint. In that letter the Director advised that two officers of the respondent had visited the Child Care Centre and carried out a formal monitoring visit, and As a follow up to the visit, a letter was written to the Licensee of the service, Mr George Rad, advising him of possible breaches of the Regulation. Your letter to the Department detailing your concerns over the treatment of your child whilst he was attending the centre was also forwarded to the Licensee for his response. Mr Rad replied to your letter in writing to this Department, and with his consent, a copy of his letter was given to you during your meeting with myself and Julie Deer. 4 On 22 October 2008 the applicant applied to the respondent under the Freedom of Information Act 1989 (the FOI Act) for access to the following: A letter written to the licensee of the service, Mr George Rad, advising him of possible breaches of the regulation and his response (if any). 5 The applicant attached a copy of the letter of 5 March 2008. 6 On 13 November 2008 Ms Catherine Chambers, Project Officer – Freedom of Information wrote to the applicant, advising as follows: I note from departmental records that you have been advised that a copy of your correspondence sent to the Department was provided to Mr Rad on 17 December 2007, and were provided with a copy of his response dated 21 December 2007 with the exception of the attachments. I note that these attachments contain information provided by persons in confidence. I consider that such information is exempt under the provisions of the FOI Act 1989 Schedule 1, Clause 13 (Confidentiality) and Clause 12 (Secrecy Provisions). 7 On 4 December 2008 Ms Chambers wrote to the applicant regarding clarification of her determination of 13 November 2008. Ms Chambers advised: As clarified, you noted that you were seeking access to a letter written to Mr George Rad after a visit to [the Child Care Centre] on 5 February 2008 and his response to said correspondence. I advise that I have undertaken a consultation pursuant to s32 of the FOI Act as the relevant document(s) are considered to relate to the business affairs of a third party. I advise that I have been unable to gain consent to release the relevant document. 8 Ms Chambers referred to clause 7 of Schedule 1 to the FOI Act, and advised that she had determined that the relevant document is exempt under cl 7(1)(c), as it contains information included within cl 7(1)(c)(ii) and that release of the information in the absence of consent may jeopardise the future supply of information of this type to the respondent. Ms Chapman noted: I make this assessment based upon the potential to undermine the confidence of this service provider to enter into free and frank communications with this agency for fear of the information being made available to third parties. 9 Ms Chapman advised that she had consulted with the two parties who had provided information to Mr Rad, which had previously been withheld under clause 13 and clause 12(1), and advised that she had been unable to gain consent to release from either party. 10 On 12 December 2008 the applicant applied for internal review. On 29 December 2008 the A/Freedom of Information Co-ordinator notified the applicant that she had considered the two determinations made by Ms Chapman, and identified the documents the subject of the determination as being: 1. Letter from DOCS in February 2008 to Mr G Rad, proprietor of [the Child Care Centre] (3 pages – "Document 1") 2. Letter from Mr G Rad to DOCS dated 21 December 2007 (4 pages plus 2 pages attachments – "Document 2") 3. Letter from Mr G Rad to DOCS dated 2 March 2008 (2 Pages – "Document 3") 11 The determination was that documents 1 and 3 were exempt under cl 7 and 12 of Schedule 1. In relation to Document 2, three pages contained information about persons other than the applicant. The material exempt under cl 6 of Schedule 1 could not be deleted from two pages (the two attachments); exempt matter on page 4 could be deleted. Several pages of Document 2 were exempt under cl 13 of Schedule 1. Two pages (the attachments) were exempt in full, and exempt matter on the fourth page of the covering letter was deleted. The internal review determination was to release a copy of Document 2 with exempt matter deleted. 12 On 21 January 2009 the applicant applied to the Tribunal for review. At a planning meeting held on 3 March 2009 the applicant stated that he is pressing for the release of attachments 1 and 4 to the letter of 21 December 2007; the letter sent by the respondent to Mr Rad following the attendance of officers on 5 February 2008; and the reply, namely Document 3. Directions were made for filing and serving of written submissions. I determined in accordance with s76 of the ADT Act that the matter could be adequately determined without the need for a hearing. Respondent's case 13 The respondent submits that Documents 1 and 3, the letter to Mr Rad regarding attendance at the Child Care Centre on 5 February 2008, and his reply dated 2 March 2008, are exempt under clause 7(1)(c) of Schedule 1. These documents contain information concerning the business, professional and commercial affairs of the Child Care Centre and release of these documents could reasonably be expected to have an unreasonable adverse effect on those affairs and prejudice the future supply of such information to the respondent. The documents relate to an inspection of the premises by officers of the respondent on 5 February 2008. The respondent states that there are no past or current proceedings regarding the Child Care Centre and the respondent was not able to make findings of breaches of the Children's Services Regulation 2004. The respondent submits that release of the documents to the applicant and potentially the wider community may lead to adverse inferences and have an unreasonable adverse effect on the business affairs of the Child Care Centre; and that release may lead to the licensee, authorised supervisor and employees being less frank, forthcoming and cooperative in future inspections conducted by the respondent for fear of the information being disclosed. 14 Document 2 consists of two attachments to Mr Rad's letter dated 21 December 2007, and are letters addressed to Mr Rad. The respondent submits that these documents relate to the personal affairs of the authors and are exempt under clause 6 of Schedule 1. The authors chose to disclose personal contact details and details of private conversations to Mr Rad, who chose to disclose them to the respondent, and the respondent does not know whether the authors are aware that Mr Rad has provided them to the respondent. 15 The respondent submits that the residual discretion should not be exercised. In relation to Documents 1 and 3, the respondent's purpose in undertaking the inspection and investigation was to have the children's service comply with the Children's Services Regulation 2004. The object of the legislation regarding children services is to ensure the safety, welfare and well-being of children in the children service and to promote certain standards for those services (s201(a) and (b) Children and Young Person (Care and Protection) Act 1998). The release of the documents is reasonably likely to threaten the financial affairs, reputation and viability of the children's service, an outcome which would be inconsistent and disproportionate with the respondent's purpose in undertaking the inspection and investigation. In relation to Document 2, the respondent submits that the Tribunal should assume that the letters were provided in confidence to Mr Rad and that the confidential nature of the personal affairs is sufficient basis to refuse disclosure. Applicant's case 16 In relation to claim that Documents 1 and 3 are exempt under cl7(1)(c) of Schedule 1, the applicant submits that the respondent has not established that disclosure is unreasonable in the circumstances and that the claimed adverse effect could reasonably be expected to occur. Any adverse effect is not unreasonable in the circumstances as the licensee of the Child Care Centre has acted outside the provisions of the Children and Young Persons (Care and Protection) Act 1998 and Children's Services Regulation 2004 and it is therefore a public interest issue. The applicant submits that the issue is not whether the licensee, authorised supervisor and employees would be less frank, forthcoming and cooperative in future, but whether the respondent will be unable to obtain such information in future. 17 In relation to Document 2, the applicant submits that release of these documents is not unreasonable in the circumstances and amounts to a public interest issue. In relation to the claim that the documents contain confidential material, the applicant submits that the issue is whether the respondent will be unable to obtain such information in the future. 18 The applicant submits that as a parent of a child attending a children's service he has a fundamental right to challenge the actions of a licensee who has acted outside the provisions of legislation, and based on Article 10 of the International Covenant on Economic, Social and Cultural Rights, the rights of the family unit must be protected and respected by the state. Consideration 19 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Section 25(1) is qualified by section 25(4) of the FOI Act, which provides: (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy. 20 Section 25(1) confers a discretion, and an agency may decide to provide access to a document notwithstanding that the document is an exempt document. In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with the discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. 21 Under section 61 of the FOI Act, the respondent bears the onus of establishing that its determination of the applicant's request was justified. 22 In its written submissions the respondent claims that clauses 6 and 7 of Schedule 1 to the FOI Act apply. Clause 6 provides: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 23 Clause 7 provides: 7 Documents affecting business affairs (1) A document is an exempt document: (a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or (a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or (b) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and (ii) could reasonably be expected to destroy or diminish the commercial value of the information, or (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. (2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made. 24 Documents 1 and 3: The letter addressed to Mr Rad contains matters arising from an inspection conducted on 5 February 2008. The letter from Mr Rad to the respondent dated 2 March 2008 responds to those matters. Having examined the documents I am satisfied that they contain information that relates to how the licensee, Mr Rad, conducts the business of operating the Child Care Centre, and thus contain information relating to his business affairs. Consideration of whether disclosure of this information could reasonably be expected to have an adverse effect on those affairs requires an objective approach to assessing what effect could reasonably be expected from the disclosure of the information, and the expectation must be more than a mere risk: Vincent Neary v State Rail Authority [1999] NSWADT 107. I agree with the respondent's submission that disclosure of the information contained in the documents could reasonably be expected to lead to adverse inferences about the Child Care Centre. The issue is whether such an adverse effect would be unreasonable. 25 Disclosure of information may not have an unreasonable adverse effect if there is a strong public interest in disclosure: Searle Australia Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111. The respondent has regulatory responsibility for children's services, and the inspection of 5 February 2008 was conducted under the Children's Services Regulation 2004. The respondent's approach to its regulatory responsibilities was stated in its submissions in the following terms: There are no past or current proceedings regarding [the Child Care Centre]. The Department was not able to make findings of breaches of the Children's Services regulation 2004. In a case such as this the Department may communicate its concerns about possible non-compliance with the Children's Services Regulation 2004 to a children's service's licensee. The Department's aim is to have the children's service rectify any possible problems so that it does comply. If it is apparent that problems exist and are not rectified, then the Department may consider commencing prosecution. 26 I am satisfied that the public interest in the proper provision of children's services might in some circumstances mean that a disclosure of information that has an adverse effect on the business affairs of a private individual, as opposed to a government agency, is not unreasonable. I am not satisfied that is the situation in this instance. The respondent's approach, as outlined in its submissions, is to take steps to ensure that service providers comply with the relevant legislation and licence requirements. The inspection conducted on 5 February 2008 did not, on the evidence before me, lead to prosecution or any further action by the respondent. The disclosure of the information in Documents 1 and 3 could, in my view, reasonably be expected to have an unreasonable adverse effect on the business affairs of the licensee and accordingly the Documents are exempt under cl7(1)(c) of Schedule 1. 27 Document 2: These two letters are, as described by the respondent in its submissions, letters addressed to Mr Rad by private individuals. Both letters contain the name of the author, and one contains address and telephone numbers. Both letters also contain other information that could enable the authors to be identified. This information is information concerning the personal affairs of the authors. The respondent states that it has been unable to contact the authors to obtain their views as to whether or not the information should be disclosed. Whether a disclosure is 'unreasonable' requires consideration of matters such as the nature of the information, the circumstances in which it was obtained, the likelihood of the information being information that the person does not wish to have disclosed without consent, and whether the information has any current relevance: Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257. Having read the letters, I am satisfied that it is reasonable to assume that the authors of the letters would object to the disclosure of the information. Other relevant factors are that the information was obtained by the respondent indirectly, when Mr Rad provided copies of the letters to it, rather than being provided by the authors to the respondent; and the information does not relate to the exercise by the respondent of its regulatory functions under the Children's Services Regulation 2004. I am satisfied that disclosure of this information would be unreasonable. It would be practicable to delete this information in accordance with s25(4) from the letter identified as Attachment 4 to the letter dated 21 December 2007, by deleting the name and contact details of the author, and all but the final paragraph of the letter. 28 Having concluded that Documents 1 and 3 are exempt, and that Document 2 contains exempt matter that can be deleted, it is necessary to consider whether or not access should be ordered on the basis that to do so is the correct and preferable decision. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds to justify the exercise of this residual discretion, and set out at [27] some of the factors relevant to the exercise of the discretion. Bearing in mind the objects of the FOI Act, I am not satisfied that there are strong grounds justifying the overriding of the exemptions. The competing public interests in disclosure of information relating to the conduct of business affairs by a private individual, in the context of the exercise by the respondent of an important regulatory function, have already been taken into account in establish the exemption under cl 7(1)(c). I am not satisfied that there are strong grounds justifying the overriding of the exemption established under cl6 in relation to Document 2. Order 29 For the reasons set out above, the Tribunal orders: (i)The decision of the respondent to refuse the applicant access to Documents 1 and 3 is affirmed. (ii) The decision of the respondent to refuse the applicant access to Document 2 is varied: (a) The respondent is to provide, 28 days after the date of this decision, a copy of the letter dated 3 August 2007 identified as Attachment 1 to the letter to the respondent dated 21 December 2007 with exempt matter deleted in accordance with paragraph 27 of these reasons. (b) The decision of the respondent to refuse the applicant to the letter dated 2 November 2007 identified as Attachment 4 to the letter to the respondent dated 21 December 2007 is affirmed. 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.