Spillane v Department of Family & Community Services [2014] NSWCATAD 169

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Spillane v Department of Family & Community Services [2014] NSWCATAD 169 Hearing dates: On the papers Decision date: 10 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed Catchwords: Access to government information - conclusive presumption of overriding public interest against disclosure - legal professional privilege - children's privacy - parent's access to information Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Larsson v Office of Environment and Heritage [2014] NSWCATAD 136 Saggers v Attorney General's Department [2005] NSWADT 193 Category: Principal judgment Parties: Gisela Spillane (Applicant) Department of Family & Community Services (Respondent) Representation: G Spillane (Applicant in person) A. Vassallo (Respondent) File Number(s): 133205

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2In June 2012, the Applicant applied to the Respondent, the Department of Family and Community Services, Community Services under the Government Information (Public Access) Act 2009 ("the GIPA Act"), seeking access to information about herself and her children. 3In August 2012 the Respondent's Right to Information Officer, Terry Meader, determined that the Applicant should be given access to some of the requested information but that there were overriding public interest considerations against the disclosure of other information that prevented the Applicant being granted access. 4In his reasons for the decision Mr Meader stated: Section 9(1) of the GIPA Act provides that you have a legally enforceable right to access the information you have requested unless there is an overriding public interest against the disclosure of the information to you. Schedules 1 and 2 to the GIPA Act provide that there is an overriding public interest against the release of certain types of government information. Schedule 1, Section 10 provides that there is an overriding public interest against the disclosure of information contained in reports made to Community Services about children who may be at risk of harm (such reports are made under s 29 of the Children and Young Persons (Care and Protection) Act 1989). I have therefore not released some child at risk reports to you In addition, where information from those child at risk reports is repeated in other documents I have also not released that information from the other documents. Apart from Schedules 1 and 2, section 14 of the GIPA Act lists the only other factors I can take into account to determine whether there is any public interest against the disclosure of the information to you. As the GIPA Act requires me to apply a public interest test, I must decide whether I consider that any of the factors at s 14 apply and whether on balance, those factors outweigh the public interest in releasing certain information to you I have identified the following considerations in favour of disclosing the information you have requested (a) the relevant information is about you and your family, and there is a general public interest in individuals being aware of the nature of records held about them by Government agencies (b) there is general understanding that the public interest is best served by transparency in Government decision-making - transparency is best achieved when access to Government records is permitted (c) section 5 provides a general presumption in favour of the disclosure of government information and s 9 provides a legally enforceable right for individuals to receive access to Government information for which they have applied except where there is an overriding public interest consideration against the disclosure of the relevant information I now outline public interest considerations I have identified against the disclosure to you of some of the information in our records (a) Some of the information in our records was provided to Community Services in confidence by individuals and/or other agencies. The core business of Community Services is the protection of children and young people. In performing this function, Community Services relies heavily on receiving child at risk reports and other information from members of the public and other agencies. When receiving this information, Community Services assures people that the information will remain confidential. Clause 1(d) provides that there is a public interest consideration against the release of information if its disclosure could be reasonable expected to prejudice the supply of confidential information that facilitates the exercise of an agency's functions. Clause 1(g) provides that there is a public interest consideration against the disclosure of information that may found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence I have considered the factors in favour (outlined above) of releasing this information to you, against the effects of breaching confidentiality. Having given greater weight to the fact that the information was provided in confidence, I have decided that there is an overriding public interest against the disclosure of this information. If the public believe Community Services cannot be trusted to maintain confidentiality, it is reasonably likely that the public will simply withhold information from Community Services, leaving it unable to fulfil its child protection responsibilities effectively. This would threaten the safety of children and young people across NSW. (b) Some of the information in our records pertains to decision making tools used by Community Services. Clause 1(h) provides that there is a public interest consideration against the disclosure of information that may prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) I have considered the factors in favour of releasing this information to you, against the effects of disclosing our some of our decision making processes. Having given greater weight to protecting the way in which incoming child at risk reports are assessed and managed, I have decided that there is an overriding public interest against the disclosure of this information, as it could affect the decision making capacity of Community Services section 14, table 1(h) relating to responsible and effective government (c) Some of the information in our records is the personal information of other people - given that the file is about child protection matters much of this Notice of Decision (s.58 of the GIPA Act) personal information is highly sensitive. Clause 3(a) provides that there is a public interest consideration against revealing other people's personal information. In applying the public interest test to this information I have considered the factors in favour (outlined above) of releasing this information to you, against the effects of revealing other people's personal information. Having given greater weight to the need to protect other people's sensitive and personal information I have decided that there is an overriding public interest against the disclosure of this information. (d) Lastly, some documents contain information about things other than the information you have requested. ... 5In the schedule attached to his determination, Mr Meader identified documents to which access was granted in part and documents to which access was refused. In addition to the public interest considerations against disclosure that are set out above, Mr Meader also identified a conclusive presumption against disclosure under Clause 5 of Schedule 1 to the GIPA Act (legal professional privilege). 6The Applicant sought an external review, firstly by the Information and Privacy Commission and ultimately by the Tribunal. She believes that she has a right to information which she says was used against her and her children in another forum. She was present during those proceedings and says that she is therefore is aware of the evidence that was given, the identity of persons who made reports and the controversies relating to the reports. 7She has explained her motivation in regard to her request as follows: On the 23 May 2008 I was forced to leave my residence with my two children, after receiving a directive by the officers of the Department. I could return only after a compulsory attendance at the Children's Court in Parramatta. The informers disclosed themselves during direct conversations with me. The identity is not questioned and is not confidential. Mr Gill gave me a copy his affidavit and Inspector Hadley informed me he would be making a report to Community Services. This has been documented in my affidavit, Community Services has a copy of both affidavits. There is nothing secret about the information I have requested. I am seeking further information about what was discussed at length with Inspector Hadley, Mr Gill, and Mr Walsh as well as during the court proceedings. ... This application has nothing to do with any information in relation to any victim. To contend that the information is subject of any law seems ridiculous as the proceedings were specifically in relation to me and my children. ... The documents will help clarify if the legal officers of the department were trying to genuinely assist two innocent children or create victims of them, to cover up their negligence or deliberate misreporting. ... I wish to clarify crucial information to gain justice for two innocent Children, made victims by the very Department set up to protect them. Sections of the Law provide me an opportunity to gain Justice and that is all I wish to attain. 8In relation to an alleged 'critical Incident' she contends that there have been seven different versions of the incident and yet, while the Respondent has prepared reports and provided information about this incident in the five and a half years have lapsed, no proper investigation has been carried out to determine this claim. 9With some limited exceptions, copies of the documents to which access was refused, in part or in full, have been provided to the Tribunal. 10The Respondent has asserted that section 29 of the Children and Young Persons (Care and Protection) Act 1998 ("the Children's Care and Protection Act") applies in relation to a number of documents. Other documents are said to be subject to a claim of legal professional privilege and that privilege has not been waived.