Information access Case Note - Who is an aggrieved person, what is required to establish legal professional privilege, and can a work health and safety incident form be released to an applicant CCB v Department of Education and Communities [2015] NSWCATAD

View the full decision here CCB v Department of Education and Communities [2015] NSWCATAD 145

What you need to know

The Tribunal determined that a person aggrieved by a reviewable decision may not necessarily be the initial access applicant, in particular if the access application was made on behalf of a minor.

A claim of legal professional privilege must be established by an agency and this includes establishing the dominant purpose of providing legal advice. An inference is not enough to support a claim of privilege.

Work health and safety incident reports would contain personal information. The disclosure of the report to the applicant where the person who is the subject of the report (WHS claimant) has not authorised or consented to its disclosure is not a disclosure for the purpose that the information was collected. Considering all the facts including the objections raised by the WHS claimant it could reasonably be expected to contravene an information protection principle and a health privacy principle.

Legislative background

Section 100 of the GIPA Act provides that an aggrieved person may seek an administrative review of a decision. An aggrieved person may not necessarily the person who has made the initial access application, particularly in circumstances where the application may have been made on behalf of a minor child, but is a person who is aggrieved by a reviewable decision.

Section 13 of the GIPA Act provides an overriding public interest against disclosure of government information if and only if there are public interest considerations against disclosure, and on balance, those considerations outweigh the public interest considerations for disclosure.

Section 14(1) and Clause 5(1) of Schedule 1 of the GIPA Act provide a conclusive presumption against the disclosure of information that is the subject of legal professional privilege. The onus is on the respondent agency to establish that information is privileged on the grounds of client legal privilege and that the privilege has not been waived by the agency.

Clauses 3(a) and 3(b) to the table to section 14 of the GIPA Act provide for an overriding public interest against disclosure where the information could reasonably be expected to reveal personal information (3(a)) and the disclosure could contravene an information protection principle under the PPIP Act or a Health Privacy Principle under the HRIP Act (3(b)).

The decision maker, in making a determination about an overriding public interest against disclosure of government information is required to apply the principle set out in section 15 of the GIPA Act.

Factual background

A mother on behalf of a minor (aged 9 years) made an application to the Department of Education and Communities for information relating to incidents at the child’s primary school in 2014.  Following the Department’s consideration of the access application where some information was provided with redactions and other information was refused, the mother sought a review by the Information Commissioner. The Information Commissioner made recommendations including that some of the information which was deleted from documents provided by the Department to the applicant should be considered for release. The relevant documents were not the work health and safety incident reports

The Tribunal made a non publication order for a number of persons in this matter.  

There were six different issues to be considered by the Tribunal. The first question concerned information in a diary that the Department was not relevant to the access application. The Department prior to the hearing in the matter decided to release the information to the applicant. The Tribunal made a decision to confirm that this had occurred.

The second question related to two lines of information in a diary where the Department claimed legal professional privilege. The Tribunal decided that the Department had not discharged its onus to establish the claim of privilege and determined that the information was to be released to the applicant.

A third question considered the standing of the applicant in requesting the information on behalf of a minor. The Tribunal considered section 100 of the GIPA Act which provides that a person aggrieved by a decision in relation to an access application may apply to the Tribunal for an administrative review of the decision. The Tribunal confirmed that the applicant was a person aggrieved by a decision and therefore that she did have standing to seek a review by the Tribunal

The Tribunal also clarified that an application for a review under the GIPA Act did not give it jurisdiction to consider claims of breaches of the minor child’s privacy nor any allegations of breaches of work health and safety legislation. The Tribunal made clear that its functions in the proceedings are limited to reviewing the Department’s decisions.

Other questions related to revealing personal and health information The Tribunal decided that on balance the public interest considerations against disclosure outweighed the considerations for disclosure and affirmed the Department’s decision not to release the information requested.

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