Davison v NSW Department of Education and Training [2013] NSWADT 25

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Davison v NSW Department of Education and Training [2013] NSWADT 25 Hearing dates: On the papers Decision date: 04 February 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed. Catchwords: Government Information - public access application - whether access application sought access to information contained in a record held by the agency - whether an access application seeking an explanation as to the legislative basis on which a decision of the agency was made is a valid application - adequacy of search Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access Act) 2009 Category: Principal judgment Parties: Mary Cawood Davison (Applicant) NSW Department of Education and Communities (Respondent) Representation: M Davison (Applicant in person) M Moore, Principal Information Access Officer (Respondent) File Number(s): 123019

REASONS FOR DECISION

Introduction 1The applicant (Mrs Mary Cawood Davison) seeks review of a decision of the respondent (NSW Department of Education and Communities), made under the Government Information (Public Access) Act 2009 (GIPA Act), in regard to her application for access to government information. 2The applicant had made her application for access on 26 February 2011. In essence the applicant sought access to the following information: 1.We seek a copy of the administrative decision taken by the NSW Department of Education and Training to allow our child to be enrolled at Hunter School of the Performing Arts from 28th April 2008 to 26th May 2008 when .... 2.We seek a copy of the administrative decision made by the NSW Department of Education and Training to allow our child to sign Hunter School of the Performing Arts permission and absentee notes concerning his attendance at Hunter School of the Performing Arts from 28th April 2008 to 26th May 2008 when... 3The applicant's child, a son, was 15 years of age at the relevant time. He had been attending the Hunter School of Performing Arts, prior to the April 2008 school holidays. Sometime prior to 28 April 2008, the applicant and her husband decided that their son should not continue attending the Performing Arts School and formally enrolled him to attend their zone school from 28 April 2008. The applicant's son did not attend the zone school and continued to attend the Hunter School of Performing Arts. As indicated above, the applicant's GIPA access request sought a copy of two decisions made by the respondent in regard to her son's attendance at the Hunter School of Performing Arts. However, the applicant's request went further than this in that she provided additional commentary and further requests for information. As I have explained below, this additional commentary and further requests have caused some confusion as to the information the applicant was seeking access to. In making this remark, I am not critical of the applicant and accept that at the time she made her GIPA access request she did not fully understand that access requests made under the GIPA Act can only be made in regard to information that is held by the agency at the time the request is made. It is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken. 4The respondent determined the applicant's application on 29 March 2011. In its reasons for decision, the respondent said that it had been identified 178 pages (122 pages after removing duplicates) as falling with the terms of the applicant's access application. With the exception of some deletions on five pages, the respondent determined to grant the applicant access to the information in the identified pages. In regard to the deleted information, the respondent had determined to refuse that applicant access to this information as it was information for which there was a public interest consideration against disclosure (i.e. personal information of a person other than the applicant) and this public interest against disclosure, on balance, was an overriding one. 5On 4 April 2011, the applicant sent an email to Ms Marianne Moore, Principal IA Officer of the respondent, informing her that the document she had been provided with were documents: (a) she had already received, (b) she could have accessed as a parent in any event, or (c) she and her husband had signed and provided to the respondent. The applicant went on to say that she had not received a copy of the information she had in fact requested. 6On the same day, the applicant made an application to the Office of the Information Commissioner (OIC) seeking review of the respondent's decision, which she was entitled to do: see section 89 of the GIPA Act. 7The OIC completed its review on 23 December 2011. In its report, the OIC summerised the applicant's access application along the lines set out in paragraph [2] above. However, in its summary the OIC also included the words 'the exact legal authority, power, or duty that allowed DEC [the respondent] to take this decision/action'. At paragraph [12] of its report, the OIC said: 12. In the course of this review, Ms Davison told us that she has decided to only press for access to information that details the authority (specifically legislative authority, including the relevant section) which allowed DEC to make the following decisions: a.allow her son to be enrolled at the school after 28 April 2008 against her wishes b.allow her son to be the authorised signatory on his personal absentee and permission notes on or after 28 April 2008. 8In the course of the OIC's review, the respondent wrote to the applicant on 7 December 2011, setting out the information requested by the applicant as categorised by the OIC. A copy of that letter was attached to the applicant's application in these proceedings. In its report the OIC said that the letter did not provide the information sought by the applicant and it recommended that the respondent make a new decision, by way of internal review, within 15 working days from the date of its report. The new decision, as recommended by the OIC, was a decision in regard to the request, as reformulated by the OIC in paragraph [12] of its report (see paragraph [7] above). 9On 16 January 2012, the respondent wrote to the applicant and the OIC advising them both that it did not intend to make an internal review report as recommended by the OIC. The respondent also set out its reasons for adopting the position it had. Included in these reasons was that it had already provided that applicant with all the information it held in respect of her GIPA request and that it had fully explained the circumstances of her son's attendance at the Hunter School of Performing Arts in its letter of 7 December 2011. 10Being dissatisfied with the respondent's response to the recommendations of the OIC, the applicant made this application for review by the tribunal. 11The matter first came before me, on 17 April 2012, at a planning meeting. Further planning meetings were held on 24 May and 5 July 2012. On 5 July 2012, the parties agreed that the application should be determined on the papers, pursuant to section 176 of the Administrative Decisions Tribunal Act 1997 (ADT Act).