CCB v Department of Education and Communities [2015] NSWCATAD 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CCB v Department of Education and Communities [2015] NSWCATAD 145 Hearing dates: On the papers Decision date: 13 July 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lucy, Senior Member Decision: 1. The respondent's decision of 12 March 2014 that the information in the principal's diary, which the respondent later provided to the applicant by letter of 8 December 2014, is not relevant to the application is set aside and, in substitution for that decision, it is decided to provide the applicant with access to that information.

2. The respondent's decision of 12 March 2014 to refuse to provide access to two lines of information in the principal's diary on the ground of legal professional privilege is set aside and, in substitution for that decision, it is decided to provide the applicant with access to that information.

3. The respondent's decision of 12 March 2014 to refuse to provide access to the remaining information in the principal's diary which was not provided to the applicant is affirmed.

4. The respondent's decision of 12 March 2014 that it does not hold a school incident report is affirmed.

5. The respondent's decision of 12 March 2014 to provide access to information, as specified in that decision, is affirmed.

6. The respondent's decision of 12 March 2014 to refuse access to information contained in notifications of injury to the Work Health and Safety Directorate by way of a Work Health and Safety incident report, made by the support teacher, is affirmed. Catchwords: Non-publication order – Whether desirable to make order in circumstances where child's identity would otherwise be revealed in connection with an allegation of violence Government information – Identity of applicant when application claimed to be made on behalf of nine year old boy – Application to respondent for access to information not expressed to be made on behalf of child - Whether child has capacity – Whether child is person aggrieved Government information – Scope of application – Whether scope of application determined by scope of application to agency or by internal review application – Whether applicant applied to review the implicit decision made by the agency that it did not hold any information sought, other than that contained in the documents it identified in its decision Government information – Client legal privilege – In-house government lawyer – No evidence of lawyer's independence – Whether evidence of independence necessary to successfully claim privilege – Whether respondent has established that advice provided was legal advice Government information – Personal information – Whether request for de-identified information changes character of personal information – Whether information has been publicly revealed – Whether disclosure could reasonably be expected to breach information protection principle or health privacy principle Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Health Records and Information Privacy Act 2002 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Beer v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 23 Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222 Applicants v Commissioner of Police [2015] NSWCATAD 22 Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1 Secretary, Department of Health & Community Services v JWB ("Marion's case") (1992) 175 CLR 218 BMA and BMB v Department of Family and Community Services [2015] NSWCATAD 20 AOP v Ngunya Jarjum Child and Family Network Inc [2013] NSWADT 263 WH v Internal Audit Bureau of NSW [2011] NSWADT 237 WW v Department of Education and Training [2011] NSWADT 300 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 Law v Wollondilly Shire Council [2013] NSWADT 203 WL v La Trobe University (2005) 24 VAR 23; [2005] VCAT 2592 WL v Randwick City Council [2007] NSWADTAP 58 Office of Finance and Services v APV [2014] NSWCATAP 88 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Waterford v Commonwealth (1987) 163 CLR 54 Commonwealth v Vance (2006) 158 ACTR 47 Banksia Mortgages Ltd v Croker [2010] NSWSC 535, Rilstone v BP Australia Pty Ltd [2007] FCA 1557 Re Philip Morris Limited and Prime Minister [2011] AATA 556 Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 Vance v McCormack (2004) 154 ACTR 12 Category: Principal judgment Parties: CCB (Applicant) Department of Education and Communities (Respondent) Representation: Solicitors: CCB (Applicant in person) Legal Services Directorate (Respondent) File Number(s): 1410656 Publication restriction: The publication of the names of the following persons is prohibited: the applicant; her son; the support teacher at the son's school in February 2014 who is referred to in these reasons; and the person who was the principal at the son's school in February 2014.