MJ v Department of Education and Communities [2012] NSWADT 275

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: MJ v Department of Education and Communities [2012] NSWADT 275 Hearing dates: On the papers Decision date: 20 December 2012 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The applicant's application for review of the decision of the respondent to refuse her access to the government information sought is dismissed. Catchwords: Government information public access - information in dispute provided to the applicant during the course of the proceedings before the Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Category: Principal judgment Parties: MJ (Applicant) Department of Education and Communities (Respondent) Representation: MJ (Applicant in person) E Stathis and M Moore (Respondent) File Number(s): 123034

REASONS FOR DECISION 1The applicant, MJ, seeks review of a decision of the respondent, the Department of Education and Communities, made pursuant to the Government information (Public Access) Act 2009 (GIPA Act), in regard to her request for access to information held by the respondent. 2In her request MJ sought access to the following information: All documentation, reports, emails, faxes, letters, notes (all media forms) re my Protected Disclosure of 5 May 2011 including documents produced or held by Paul Callaghan since 21/2/2011 from my initial complaint. A full copy of the report of Joy Woodhouse. 3On 13 December 2011, Ms Moore, Principal Information Access Officer of the respondent, wrote to the applicant to inform her that her application for access had been split into two applications as the information she sought was information, in part, that was held in the Employee Performance and Conduct (EPAC) Directorate of the respondent Department. As EPAC officers were authorised to decide GIPA applications concerning information held in that Directorate, those officers would determine that part of her application. In respect of the information sought that was not held within the Directorate, MJ was informed that the Information Access Unit (IA Unit) of the respondent would decide this. 4On 21 December 2011, Malcolm Barnett, the Chief Investigator of the EPAC Directorate, decided to grant MJ access, in part, to the information she requested. That part which he refused to release was the report of Joy Woodhouse. He determined not to release it to her as he found that the public interest against disclosure set out in item 1(h) of section 14 of the GIPA Act was an overriding one. 5On 8 February 2012, MJ made this application to the Tribunal seeking review of the decision of the respondent to refuse her access to Joy Woodhouse's report. The application came before me at a planning meeting on 17 April 20012. By consent, I made orders for the filing and serving of evidence and submissions and that the application was to be determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 6I note that, on 14 May 2012, Ms Stahis, Manager Information Access of the respondent wrote to MJ and provided her with a full copy of the report of Joy Woodhouse and asked her to keep it confidential until the EPAC's investigation was complete. Ms Stathis also advised that, subject to MJ's consent, the respondent would be seeking the following orders of the Tribunal: 1. The Tribunal notes that on 14 May 2012 the Respondent provided to the Applicant ...the investigation report by consultant Joy Woodhouse .... 2. By 22 June 2012 Applicant is to notify the Tribunal whether the review application is to be continued. 7On 21 May 2012, MJ filed and served a bundle of documents under the cover of a letter dated 19 May 2012. In the cover letter MJ noted that she had received a copy of Joy Woodhouse's report by registered mail on 18 May 2012. She noted that the ADT reference in Ms Stathis' letter was incorrect and that there were also errors in the respondent's submissions, which were subsequently acknowledged by the respondent. MJ also noted that in addition to the 30-page report of Joy Woodhouse, the respondent had included a copy of two pages, unrelated to her GIPA request and the report of Joy Woodhoouse, which contained personal information of persons other than MJ (the other persons). That is, MJ was provided with personal information, held by the respondent, that did not relate to her or her GIPA request. 8MJ stated that the respondent should not have provided her with a copy of these two pages and in providing her with this information it was a 'serious breach of privacy' of the other persons. MJ went on to request that the Tribunal review the matter and all subsequent correspondence. 9On 4 June 2012, Ms Moore wrote to MJ thanking her for bringing each of the matters she raised to the attention of the respondent. Ms Moore asked her to destroy the two pages containing the personal information of the other persons. She also advised that the officer in charge of the compulsory school matters had been informed and will take appropriate action in respect of the other persons. 10I share MJ's concerns about the respondent having provided her with personal information concerning the other persons. In this regard I note the respondent's obligations under the Privacy and Personal Information Protection Act 1998 (PPIP Act) to comply with the information protection principles under that Act. These obligations apply, unless one or more of the exceptions to compliance in that Act apply. That is, the obligations apply even where personal information is provided, by mistake, contrary to the obligations in that Act. 11However, the Tribunal's jurisdiction in reviewing the decision of the respondent under the GIPA Act does not extend to matters concerning the respondent's obligations under the PPIP Act. Its jurisdiction is limited to reviewing the decision of the respondent to refuse her access to the report of Joy Woodhouse: see section 80(d) and 100 of the GIPA Act and section 38 of the ADT Act. In reviewing the decision of the respondent, the role of the Tribunal is to decide whether the decision of the respondent is the correct and preferred decision and in doing so it sits in the shoes of the respondent and considers the matter a fresh: see section 63(1) of the ADT Act. That is, it is vested with the same functions that were conferred or imposed on the respondent under the GIPA Act. 12As MJ has now been provided with access to that document, there is no further issue for the Tribunal to determine in regard her application for access to government information. Accordingly, her application for review should be dismissed. While this is the appropriate order having regard to the circumstances, I note that the usual procedure adopted by an agency where it decides, contrary to its decision the subject of review, to grant an applicant access to the disputed information, the usual course is to seek an order from the Tribunal setting aside the decision the subject of review and in substitution thereof a decision to grant an applicant access to the disputed information. 13For the reasons set out above, the applicant's application for review is dismissed.