ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28 (14 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
ZR

RESPONDENT
Director General, New South Wales Department of Education and Training



FILE NUMBERS:
073216

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
16 November 2007



DATE OF DECISION:
14 January 2008

BEFORE:
Pearson L - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989

CASES CITED:
Chand v Commissioner of Police
NSW Police [2007] NSWADT 131
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Commissioner of Police v N [2003] NSWSC 943
Re Leverett (1985) 8 ALN N 135
Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296
Morgan v Director-General
Department of Education & Training [1999] NSWADT 91
Morgan v Director-General
Department of Education & Training (GD) [2000] NSWADTAP 3

TEXTS CITED:


APPLICATION:
Freedom of Information Act - amendment of documents

MATTER FOR DECISION:
Preliminary matter


REPRESENTATION:
APPLICANT
In person
RESPONDENT
P Cribb, solicitor


ORDERS:
The matter is set down for further directions on 25 January 2008 at 11.30 AM.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has applied to the Tribunal for review of a deemed decision to refuse to amend two documents which were provided to her under the Freedom of Information Act 1989 (the FOI Act). Section 39 of the FOI Act confers a right to apply for amendment in the following terms:

39. Right to apply for amendment of agencies’ records

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

2 Section 43(1) of the FOI Act provides that an agency must determine an application for amendment by either amending the record in accordance with the application or by refusing to amend the record. The grounds on which an agency can refuse to amend its record are set out in section 44, which provides as follows:

44. Refusal to amend records

An agency may refuse to amend its records in accordance with an application:

(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or

(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

3 The two documents are letters written by the then Deputy Principal of the school attended by the applicant’s children (referred to in these reasons as "the School"), the first dated 16 September 2005 addressed to her, and the second dated 14 September 2005 addressed to the President of the School P&C, concerning events at a meeting of the P&C on 10 September 2007. The letters contain comments about the actions of the applicant at the P&C meeting in raising concerns over the organisation of an activity in which her child was involved, and in questioning a teacher present at the meeting. The applicant requested amendment on 17 January 2007. The respondent did not make a determination, and the applicant requested internal review. There was no determination, and by virtue of section 47(6) of the FOI Act, there was a deemed refusal to amend the documents. The application to the Tribunal was lodged on12 July 2007.

4 At a planning meeting held on 18 September 2007 the issue of whether the requirements of paragraphs (a) and (b) of section 39 are met was raised. The parties agreed that this issue could be determined on the basis of written submissions, and directions were made for filing and serving submissions and submissions in reply.

Respondent’s submissions

5 The respondent accepted that the applicant has been given access to the documents, and that the documents are the respondent’s "document" for the purposes of section 39 of the FOI Act. The respondent submitted that not all the information which the applicant seeks to have amended is capable of being amended, as not all of the information is information concerning her personal affairs.

6 The respondent disputes that the relevant information is available for use by the respondent in connection with its administrative functions. The documents do not contain, or foreshadow, any decision of the respondent; the organisation, operation and conduct of the P&C are not "administrative functions" of the respondent; and the applicant is not a member of staff, or a student, of the respondent. In summary the respondent submitted:

Any of the applicant’s personal information contained in the letters are not available for the use of the respondent in connection with the administrative functions of the respondent because such information is not relevant to those administrative functions.

7 The respondent submitted that the comments made by the President, O’Connor DCJ, in Morgan v Director-General of Education and Training [1999] NSWADT 91 at [20]- [21] should not be followed, and that Morgan can be distinguished on the basis that the documents in this matter relate to events at a P&C meeting.

Applicant’s submissions

8 The applicant submitted that as the respondent had not provided any evidence as to the "administrative functions" of the respondent, it is not appropriate to deny that the letters are related to the "administrative functions". The applicant relied on the definitions of "function" in the Education Act 1990, and the discussion of "administrative functions" in the NSW FOI Manual, and relied on the decisions in Re Leverett (1985) 8 ALN N 135, Morgan v Director-General, Department of Education and Training [1999] NSWADT 91, and Chand v Commissioner of Police, NSW Police [2007] NSWADT 131. The applicant submits that parents can have an important role in the "administrative functions" of a school; for example, parent interests are represented on the School Council through parents appointed from members of the P&C Association, and parents are able to participate in a school’s policy decisions through its committee structure. The applicant referred to the Supreme Court decision in Commissioner of Police v N [2003] NSWSC 943 approving a broad view of the term "administrative functions".

Consideration

9 The term "personal affairs" as used in section 39(a) is not defined in the FOI Act, and it has been accepted that it should be given its ordinary meaning. In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin's case) Kirby P held that the words "personal affairs" in the context of the FOI Act mean "the composite collection of activities personal to the individual concerned". Morgan v Director-General, Department of Education & Training [1999] NSWADT 91 concerned documents recording comments and opinions relating to incidents at a school. At paragraph [20] the President, O'Connor DCJ, noted that the respondent accepted that the documents should be treated as containing information concerning the applicant’s personal affairs. At [21] O'Connor DCJ commented:

21. As to the issue of whether the documents relate to the applicant's personal affairs, I am inclined to consider that in general they do, in that they have their origins in representations by her as to issues of concern to her as a parent. The position may be more arguable as to documents that relate to her representations and conduct when it became more public in character, but as this question was not pursued by either party, I will proceed on the basis that all the documents in issue are properly subject to Part 4 of the Act.

10 The decision in Morgan was set aside on appeal: Morgan v Director-General, Department of Education & Training [2000] NSWADTAP 3. However the decision of the Appeal Panel does not question the approach adopted by O'Connor DCJ in paragraphs [20]-[21]. The respondent submitted that Morgan should not be followed, and can be distinguished. I do not read the comments of O'Connor DCJ to indicate that comments concerning the actions of a person in a public forum are excluded from being information concerning that person's "personal affairs". Indeed, in Morgan part of the documents contained comments about the applicant entering classrooms. The limitation on the concept of "personal affairs" has tended to arise in the context of information concerning a public sector employee in their capacity as an employee, rather than as a private individual: Perrin's case; Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296. That is not the situation here.

11 The comments in the letters the subject of this application concern the applicant’s actions at the P&C meeting, which relate to issues of concern to her as a parent. I am satisfied that this is information that is personal to her. Section 39(a) does not require that all the information contained in a document concern the applicant’s "personal affairs", and is satisfied if the document contains some information that can be so described. I am satisfied that parts of the documents contain information relating to the applicant's "personal affairs", and section 39(a) is met.

12 The issue of whether the information contained in the letters "is available for use by [the respondent] in connection with its administrative affairs" as required by section 39(b) is more complex. As to the first part of that requirement, the letters were written on the School letterhead, were signed by the Deputy Principal in that capacity, and, as demonstrated by their provision in response to a request for access to documents under the FOI Act, were retained in a form accessible by the respondent. I am satisfied that the letters were available for use by the respondent.

13 The term "administrative affairs" is not defined in the FOI Act. In N v NSW Police (No 3) [2002] NSWADT 34 the Tribunal rejected a submission that the term "administrative functions" did not include what could be described as the respondent’s "law enforcement", or "operational", functions, as opposed to what could be described as "internal" functions. That approach was approved by the Supreme Court in Commissioner of Police v N [2003] NSWSC 943, as follows:

17. As a matter of statutory construction in my opinion the learned President was correct in his determination that the words "administrative functions" were not intended to be a description of one set of functions among many but rather that they were used in a generic sense and that, as his Honour said:

"... the term "administrative functions" is used in s 39 to refer to all those functions performed by the Agency which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement".

14 The respondent submitted that it was responsible for the operation of NSW government schools, including the School, in accordance with the Education Act 1990. In its submissions in reply the respondent submitted that its functions were those express or implied in the Education Act 1990.

15 The objects of the Education Act 1990 as provided in section 5 include "(b) to provide for the establishment and operation of government schools". Part 11 of the Education Act 1990 deals with "Parents and citizens and kindred associations". Section 116 sets out the objects and functions of a P&C Association as follows:

116. Objects and functions

(1) The objects of an association are:

(a) to promote the interests of the school by bringing parents, citizens, students and teaching staff into close co-operation, and

(b) to assist in providing facilities and equipment for the school and in promoting the recreation and welfare of the students at the school, and

(c) to encourage parent and community participation in curriculum and other education issues in schools where there is no school council.

(2) The functions of an association are the following:

(a) to report, when requested by the Minister, on the material requirements of the school and to advise on the subject of maintenance of the school, alterations and additions to school facilities, and the selection of new sites,

(b) to assist and co-operate with the teaching staff in public functions associated with the school,

(c) to be responsible for the election of parent representatives to any school council constituted at the school in consultation with the principal of the school to ensure consistency with any guidelines for elections issued by the Director-General,

(d) to assist in any other matters in which the Minister may seek the co-operation of the association and to exercise such other functions as may be prescribed by the regulations.

16 Under section 117, a P&C is to be constituted in accordance with the regulations, and may be incorporated under the Parents and Citizens Associations Incorporation Act 1976 or under the Associations Incorporation Act 1984. Clause 7 of the Education Regulation 2007 (as did its predecessor, the Education Regulation 2001) provides for constitution by the Minister on the resolution of 7 or more persons (each being parents of children attending the school or residents of the district served by the school). While a P&C Association incorporated under the Parents and Citizens Associations Act 1976 or the Associations Incorporation Act 1984 will be a body corporate, it is not clear what is the status of a P&C Association constituted by the Minister; or, indeed, how the School P& C Association was constituted. Whether or not the School P& C is a separate body corporate, it is clear from section 116 of the Education Act that it is intended to operate co-operatively with, but independently of, the relevant school.

17 The respondent submits that "hopefully a P&C will assist the respondent in carrying out its ‘administrative functions’ but the organisation, operation and conduct of the P&C are not ‘administrative functions’ of the respondent". The first part of that submission is consistent with the statement of objects and functions in section 116, which envisage provision of material support; in some contexts, curriculum support; and more generally promoting the interests of the school. As to the second part of that submission, to the extent that a P&C Association operates independently of a school, it may be correct to argue that there is no automatic inclusion of its organisation, operation or conduct in the "administrative functions" of the respondent. However, section 39(b) focuses on the information contained in the relevant document, and whether that information "is available for use by the agency in connection with its administrative functions".

18 The "administrative functions" of the respondent include "all those functions performed by the Agency which relate to the management and execution of its responsibilities": Commissioner of Police v N [2003] NSWSC 943. The relevant part of The NSW FOI Manual (August 2007, NSW Department of Premier and Cabinet and the NSW Ombudsman) states:

5.2.5 ‘Administrative functions’ is not defined by the Act. The term should be given a broad meaning. The provisions of the FOI Act dealing with amendment of records are intended to cover the full range of records available in relation to functions of an agency that are part of its day-to-day operations and management. However, as information must concern ‘personal affairs’ it is unlikely that policy documents will be affected.

5.2.6 In the Commonwealth FOI Act, the right to request an agency to amend a record is similarly expressed – ‘being used or available for use by the agency or Minister for an administrative purpose’.

5.2.7 The Commonwealth AAT has also held that the Commonwealth provision is not confined to records of a purely factual nature and may include those containing a professional judgement or opinion, subjective evaluations and information conveyed by innuendo. In Re Leverett (1985) 8 ALN N 135 at N136 the AAT (Cth) said:

"it would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based on these assertions must remain unaltered."

19 While this statement of policy is not binding on the Tribunal, it is consistent with the decision in Commissioner of Police v N, and to the extent that it encourages a broad interpretation of the amendment provisions, is consistent with the objects of the FOI Act.

20 The responsibilities of the respondent include the operation of government schools, including the School. The value of involvement by parents and others in the broader life of a school, not being limited to provision of material support, is acknowledged in section 116 of the Education Act 1990. The objects of a P&C, and its functions, include co-operation between parents and teaching staff at the school. The letters contain comment as to appropriate avenues for a parent to raise concerns about activities in which their child is involved, and relations between staff and parents. Those matters are, in my view, included within the day-to-day operation and management of a school conducted by the respondent, and thus, within its "administrative functions". The information contained in the letters is available for use by the respondent in connection with its administrative functions, and section 39(b) is satisfied.

21 I am satisfied that paragraphs (a) and (b) of section 39 are satisfied. The respondent accepted in its written submissions that the applicant is of the opinion that the information contained in the letters is "incomplete, incorrect, out of date or misleading". The matter should be set down for further directions in respect of the outstanding matters, namely whether the documents should be amended in accordance with the applicant's request.

Order

The matter is set down for further directions on 25 January 2008 at 11.30AM.