Zidar v NSW Department of Education & Training [2011] NSWADT 3 (13 January 2011)

Last Updated: 9 March 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Zidar v NSW Department of Education & Training
Medium Neutral Citation:	[2011] NSWADT 3
Hearing Date(s):	9 November 2010
Decision Date:	13 January 2011
Jurisdiction:
Before:	Isenberg N Judicial Member
Decision:	In respect of documents: EPAC file numbered 250, 268 and 271, the decision under review is affirmed other than as to the name of the child's mother. EPAC file numbered 16, 17, 68-72, 92-128, 139-140, and 192-195, the decision under review is affirmed. Personnel file numbered 32 and 103, the decision under review is set aside other than as to the name of the student and the name and contact details of the academic mentor Personnel file numbered 2, the decision under review is set aside.
Catchwords:
Legislation Cited:	Freedom of Information Act 1989 (NSW)
Cases Cited:	Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 Re Williams and Registrar of Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219 Young v Wicks [1986] FCA 169; (1986) 13 FCR 85 Colakovskiv Australian Telecommunications Corporation [1991] FCA 152 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7 Re Mann and Australian Taxation Office (1985) 7 ALD 698 Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19 Freedman v Macquarie University [2008] NSWADT 105
Texts Cited:
Category:	Principal judgment
Parties:	Stephanie Zidar (Applicant) NSW Department of Education and Training (Respondent)
Representation
- Counsel:
- Solicitors:	J Zidar, agent (Applicant) S Oom, solicitor (Respondent)
File number(s):	103159
Publication Restriction:

REASONS FOR DECISION

Background

1 Mrs Stephanie Zidar worked as a teacher's aide at Islington Public School. On 8 April 2009 she was involved in an incident at the school which resulted in child protection allegations. An investigation was conducted by the Employee Performance and Conduct Directorate (EPAC) of the Department of Education and Training (the agency), and Mrs Zidar was exonerated. Shortly after the incident Mrs Zidar status as a long term temporary student support officer was terminated, apparently contrary to the conditions of her employment, and ostensibly for financial reasons.

2 On 2 November 2009 Mrs Zidar lodged an application under the Freedom of Information Act 1989 (the Act) with the agency in which she requested access to the following:

All documents contained on the EPAC investigation file case 33469 concerning an incident involving me at Islington Public School on 8/4/09 and all documents regarding my change of employment status at Islington Public School...

3 Because the EPAC file was held separately from the agency's file in relation to Mrs Zidar (the Personnel file), her FOI request was dealt with as if it were 2 requests, namely, a request for all documents contained on the EPAC investigation file, and all documents regarding her change of employment status.

4 Pursuant to each request a large number of documents was provided, and further documents were provided following internal review. More documents were provided at the suggestion of the Ombudsman, to whom Mrs Zidar had also complained.

5 Mrs Zidar sought, by way of review by the Tribunal, access to the remainder of documents relevant to her application. Some of the documents were released to Mrs Zidar in redacted form and Mrs Zidar sought access to those documents, unredacted, also.

Legislation

6 Section 5 of the Act provides that the objects of the Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

7 Section 24(1) of the Act provides that after considering an application for access to a document, the agency is to determine whether access to the document is to be given or refused, and any charge payable for giving access and/or dealing with the application. Under section 25(1)(a) of the Act, an agency has discretion to refuse access to a document. Grounds on which access may be refused are set out in section 25 and include that a document is "an exempt document". An "exempt document' is defined in section 6 to mean (among other things) a document referred to in any one or more of the provisions of Schedule 1.

8 Having regard to the submissions of the Respondent the following clauses of Schedule 1 are relevant:

6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

13 Documents containing confidential material
A document is an exempt document:
...
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.

16 Documents concerning operations of agencies
A document is an exempt document if it contains matter the disclosure of which
could reasonably be expected:

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, and
would, on balance, be contrary to the public interest.

9 The Tribunal's powers on review are found in section 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Section 63 of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. The Tribunal may exercise all of the functions that are conferred or imposed on the agency.

10 The onus of proof is on the agency to justify any decision to withhold documents: section 61. As Kirby P said in Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 (Perrin) at 625:

Prima facie, the document in its entirety must be disclosed. To withhold disclosure it is for the agency to make out the application for an exemption. Thus the question properly is not why the information should be disclosed but why it should be exempted.

Consideration

11 The agency did not press its claim for exemption in respect of some outstanding documents and I assume copies have now been provided to Mrs Zidar. The submissions on behalf of the agency were that the remaining documents that had not been provided to Mrs Zidar were either out of the scope of the FOI request, or that release was exempted under one or more of Clauses 6, 13(b) or 16(a)(iii). The applicant provided voluminous detailed submissions. In the applicant's written submissions dated 17 August 2010 access to a number of documents was not pressed. The remaining documents were: EPAC documents 16, 17, 68-72, 92-128, 139-140, 192-195, 250, 268, 271 and Personnel file documents 2, 32 and 103. In respect of those documents, only the exemptions under clause 6, clause 13 and clause 16 were relevant. As far as possible, the documents were grouped for consideration, and submissions were made in respect of each document or group of documents.

Clause 6

12 Exemption from release in respect of pages 250, 268 and 271 of the remaining EPAC documents was claimed on the basis that the documents contain material relating to the personal affairs of other persons.

13 For the exemption in clause 6 to be made out, two conditions must be satisfied. First, the document must contain material concerning the personal affairs of a person; secondly, the disclosure of the information must be "unreasonable".

14 In respect of document 250 the agency did not press the redaction in the first paragraph, and accordingly that portion of the document should be provided to Mrs Zidar in an unredacted form.

15 The balance of the redactions in document 250, as well as the redactions in documents 268 and 271 contain information about another person, namely the child's mother: document 250 contains her name and contains information about her availability by telephone and her holiday activities; document 268 also refers to her by name and refers to her availability by telephone; document 271 also refers to her and records her address.

16 The term "personal affairs" is not defined. In Perrin Kirby P noted at 625 that,

In its context, the words `personal affairs' mean the composite collection of activities personal to the individual concerned.

17 In other jurisdictions the cases make it clear that "personal affairs" cannot be precisely or exhaustively defined: eg Re Williams and Registrar of Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219; Young v Wicks [1986] FCA 169; (1986) 13 FCR 85. The information does not have to be confidential or secret to attract the "personal affairs" exemption; it may even be widely known: per Lockhart J in Colakovski v Australian Telecommunications Corporation [1991] FCA 152 (Colakovski).

18 In Perrin Mahoney and Clarke JJA expressed the view that a person's name, as such, is not generally part of their personal affairs and Lockhart J in Colakovski said that, as an abstract concept, the name and telephone number of a person would not be information relating to their personal affairs. It is a question of fact in every case as to whether the name and address of a person amounts to their personal affairs: Perrin per Clarke JA at 644.

19 In Perrin the names of police officers who had been involved in the preparation of a report in the course of their duties did not constitute their "personal affairs." In Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 (Gilling) DP Hennessy considered the names and addresses of objectors to a development to be their personal affairs because they were not supplying the information in the performance of a public duty. In this matter, the name of the child is well known to Mrs Zidar. By implication, his mother's name may already be known to Mrs Zidar, although there was no evidence about her knowledge, one way or the other. In any event, I prefer the view that a name, on its own, does not amount to personal affairs and to the extent that the documents indicate the child's mother's name, they do not attract the exemption.

20 More problematic is the other information in the 3 documents about the child's mother, including her address. Unhelpfully, there was no evidence as to her views about the release of information about her, as there was in relation to the objectors in Gilling.

21 In order to determine whether the address and other information recorded constitute personal affairs in this case, the context in the information appears must be examined. Unlike the situation in Perrin, this information was not provided in the course of the performance of any public duty or responsibility. Even so, in Perrin Kirby P stated that a police officer's private address could be considered as part of their personal affairs. Similarly, in Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7 the disclosure of the addresses of motor vehicle owners held by the public vehicle registration body was found to relate to the owners' "personal affairs." Even if a person's name per se is not necessarily part of their personal affairs, disclosure of their address enables them to be contacted by people who have access to that information and that contact may not be appreciated.

22 From the papers it would appear that the child's mother provided her contact details so that she could be kept informed of the progress and outcome of the investigation. I find that in the context of this case the address of the child's mother is material concerning her personal affairs.

23 The remaining information relates to attempts to contact her by telephone and as to her holiday plans. I find that in the context of this case that information is material concerning her personal affairs in that it may disclose a pattern of availability or when her home may be unattended.

24 The second question is whether disclosure of the information is "unreasonable". Relevant factors in relation to unreasonableness are: the views of the third parties; the nature and extent of any prejudice to third parties if their names and addresses are disclosed; and whether disclosure would serve the public interest purposes of the legislation. There has been some debate about whether the applicant's interest in the information is also a relevant factor. Having said that, having regard to the nature of Mrs Zidar's overall concerns, the information is, with the likely exception of the child's mother's address, innocuous.

25 To determine reasonableness the agency must consult with the person concerned, identify the public interest considerations for and against disclosure and establish that disclosure would be contrary to the public interest: Colakovski. The view of the child's mother is unknown. The nature of the prejudice she might suffer is unclear except that her address may provide an opportunity for contact which may be unwelcome.

26 While an applicant does not have to demonstrate a need for or an interest in the documents being sought the applicant's motivation in seeking the information has, in some cases, been held to be relevant to the question of reasonableness: Re Mann and Australian Taxation Office (1985) 7 ALD 698 at 700. For example, if disclosure would merely satisfy the applicant's curiosity then disclosure may be considered to be unreasonable: Colakovski at 441. Despite the detailed submissions it was unclear as to why the applicant pressed access to this information in circumstances where access to other documents was abandoned.

27 In Perrin Mahoney JA considered that where the information is sought merely to harass the parties in question, a court would have to "exercise care" in deciding whether access should be granted. Having said that, there is no suggestion however that Mrs Zidar is or was likely to harass the child's mother. A more relevant consideration, in my view, is that expressed by Heerey J in Colakovski that if the information disclosed was of no demonstrable relevance to the affairs of government and was likely to do no more than to excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, he thought disclosure would be unreasonable. There seems to me no demonstrable relevance in having the information about the child's mother's address, her availability by telephone and her holiday plans to the affairs of the agency. I consider that in these circumstances disclosure of this matter would be unreasonable.

28 I therefore determine that the redacted portion of documents 250, 268 and 271, other than as to the child's mother's name, are exempt under clause 6 of Schedule 1 and the decision under review in relation to those documents is affirmed other than as to the name of the child's mother.

29 Exemption under clause 6 was also claimed in relation to two partially redacted paragraphs of Personnel file document 32 (and 103 which is a copy) on the basis that the document contains information about the personal affairs information of third parties. (Exemption in relation to the first redacted paragraph of the document was claimed on the basis of clause 13(b) and is dealt with below.) The document is an email from Andrew Pryce, the Principal of Islington Public School to Daved Peckham, the School Education Director.

30 The first of the two paragraphs claimed to be exempt under Clause 6 contains information about another student. The second relates to a named academic mentor's role, remuneration and contact telephone number.

31 Mr Zidar stressed the need for access to the document, contending that the email correspondence was likely to demonstrate that there were no funding concerns about the engagement of an academic mentor and hence any contention that his mother was to be stood down for financial reasons was ill-founded. Similarly, another student, for whom the school received additional funding, was said to be leaving the school, although this did not subsequently occur.

32 Applying the reasoning discussed above, I am of the view that the information relates to the personal affairs of two different persons: a student who attracts special funding, and whether the child was to be enrolled at another school; and about a person, described as an 'academic mentor', including the person's contact telephone number.

33 Turning to the question of whether disclosure of the information is "unreasonable", I observe that again, the view of the persons is unknown. The nature of the prejudice they might suffer is unclear except as to the contact details, and that the named student attracts special funding.

34 While, in my view the applicant has demonstrated a need for or an interest in the documents, I do not however consider it reasonable to provide her with the name of the student nor the name and contact details of the academic mentor. To that extent their personal affairs are exempt from production; otherwise those paragraphs should be supplied to Mrs Zidar as they are not exempt from production under clause 6 of schedule 1. I therefore determine that the redacted portion of documents 32 and 103, other than as to the name of the student and the name and contact details of the academic mentor, are not exempt under clause 6 of Schedule 1 and the decision under review in relation to those documents is set aside other than as to the name of the student and the name and contact details of the academic mentor.

Clause 13(b)
35 Exemption under clause 13(b) was claimed in relation to documents 16, 17, 68-72, 92-128, 139-140, and 192-195 of the EPAC file and part of document 32 in the Personnel file.

36 During the investigation statements dated 8 April 2009 were provided by teachers - documents 16 and 17 and interviews were conducted on 17 June 2009 - documents 92-128; an interview was conducted with the child - documents 68-72; a summary of information obtained was created, of which documents 139-140 form part; an investigation report was prepared, of which documents 192-195 form part.

37 The agency submitted that investigations in respect of child protection allegations necessarily reveal personal information and, due to balancing the privacy considerations of all persons involved, are inherently of a confidential nature. The agency submitted that the information withheld in relation to the exempt documents is only that information which is inherently confidential and has either been created in confidential circumstances, or makes reference to that information. The agency further submitted that information received from informants during investigations of this type is received on a voluntary basis and that to release such confidential information could reasonably be expected to prejudice the future supply of such information.

38 For the exemption under Clause 13(b) to apply the information must be provided in confidence. Mrs Zidar contended that staff must be made aware prior to making a witness statement that confidentiality cannot be guaranteed. It was submitted on Mrs Zidar's behalf that the two teacher witnesses had 'differed immensely' between 8 April 2009 and 17 June 2009 (although it is difficult to see how she could form that view when she has not been provided with either document) and that this 'diminishes their probative value'. The agency submitted that although it cannot guarantee confidentiality, it is obliged to use its best endeavours to maintain confidentiality over such information. This principle was said to be emphasised in the agency's "Responding to Allegations Against Employees in the Area of Child Protection" procedures.

39 I was referred to Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 at [70] and [80] where it was held that documents generated by an investigation should remain confidential pursuant to Clause 13(b). There the Tribunal's Appeal Panel referred to Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19 at [35] where that Appeal Panel held that there was a public interest in upholding the ability of investigations to proceed by way of voluntary participation even in circumstances where the investigator had the power to compel the giving of evidence. The existence of a power of compulsion does not make irrelevant or unimportant the value attached by agencies to being able to proceed by way of voluntary participation. The Tribunal has previously accepted that teachers' involvement in such investigations is sought on a voluntary basis in GJ at [76]).

40 For the exemption under Clause 13(b) to apply it must also be established that the future supply of such information could reasonably be expected to be prejudiced. The applicant contends that this is illogical as teachers have a number of responsibilities including that they report child protection matters so that the welfare of a child is never compromised. In this case, it was submitted, there had been no commonsense applied to the incident and its aftermath. The agency submitted that Mrs Zidar had confused teachers' mandatory reporting requirements with their voluntary cooperation with departmental investigations into those reports.

41 As the Tribunal's Appeal Panel discussed in GJ at [35]

It is in the nature of the detection of misconduct in the workplace that the most pertinent information will often come from co-workers or colleagues of the person of interest.

42 That is not to say that Mrs Zidar did engage in misconduct, but the agency, in exercising its duty of care to the child, properly made enquiries when matters were brought to its attention by Mrs Zidar's co-workers.

43 The remaining issue in considering Clause 13(b) is whether or not the release of the documents would, on balance, be contrary to the public interest. The public interest considerations include the nature of the information to be disclosed, the circumstances in which it was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent and the current relevance of the information: Freedman v Macquarie University [2008] NSWADT 105.

44 Mr Zidar re-iterated the concerns about the information not having being obtained in confidence, noting that the two teacher witnesses were Mrs Zidar's immediate supervisors. He acknowledged that there is an obligation to report all child protection matters, but observed that it is to be done in good faith. He submitted that subordinate staff needed to be confident that when allegations are brought against them their immediate supervisors have not 'displayed neglect, incompetence or acted inappropriately'. This argument seemed to me to be somewhat circuitous, having acknowledged that that the teachers had an obligation to report what might have been perceived 'although was subsequently found not to be' misconduct. Mr Zidar did not, it seemed to me, go so far as to allege that the teachers had in fact acted inappropriately.

45 It was submitted on the applicant's behalf that staff needed to be protected from possible malicious allegations and that non-permanent staff needed assurance that 'information brought against them is consistent with the facts', that they be 'treated fairly' and that 'their political rights are not disregarded'. It was alleged that Mrs Zidar had not been treated 'equally'. I am in no position, on the available evidence to comment on whether Mrs Zidar had been treated any differently to anyone else in similar circumstances. On the face of it though, it appears that a complaint was made, and an investigation conducted which led to Mrs Zidar being exonerated. I accept that in this matter, Mrs Zidar was provided with a summary of the allegations during the investigation process and that there was no evidence that she was denied procedural fairness in the course of the investigation.

46 The agency submitted that there is a strong public interest in it continuing to receive voluntary assistance from its employees with reports and investigations of this nature, and maintaining its ability to exercise its personnel management functions effectively, and that these considerations outweigh the considerations in favour of disclosure. The Tribunal has on a number of occasions, previously upheld the proposition that these considerations are in the public interest: GJ at [70], Freedman v Macquarie University at [70] & [71], and Macquarie University v Howell (No. 2) (GD) at [35]. Importantly in my view, it is not just that the teacher witnesses in this matter should not be discouraged from reporting issues of concern with respect to children in their care, but that all persons who have such concerns should not be discouraged from coming forward for fear that their confidentiality will be compromised. There can be no doubt that it is in the public interest that allegations of child abuse are notified so that early investigation can occur so as to minimise risks to children. Having said that, there is remains a need for procedural fairness in the conduct of investigations, and, as it transpires, the investigation in this matter, as I have said, exonerated Mrs Zidar.

47 On balance, I agree with the arguments advanced by the agency, and in my view, in the circumstances of this matter, the public interest in disclosure is outweighed by considerations against disclosure.

48 Having come to that view in relation to the documents in the EPAC file numbered 16, 17, 68-72, 92-128, 139-140, and 192-195 in respect of which exemption under Clause 13(b) is claimed, the decision under review is affirmed.

49 Exemption on the basis of clause 13(b) was claimed in relation to the first redacted paragraph of document 32 in the Personnel file which is an email from Andrew Pryce, the Principal of Islington Public School to Daved Peckham, the School Education Director. (Other claimed exemptions in respect of other parts of the document are dealt with in paragraph 29 above.) There was no evidence that this communication was made in any confidence whatsoever, and appears to form part of the day-to-day communication between colleagues. It therefore fails at the first test of clause 13(b) and should not be exempt. To that extent the document should be provided to Mrs Zidar and the decision under review in respect of that portion of the document is set aside.

Clause 16(a)(iii) and 16(b)
50 Exemption was claimed in respect of unredacted portions of document 2 in the Personnel file - an undated and unsigned statement purportedly by Andrew Pryce, the Principal of Islington Public School regarding the change in Mrs Zidar's employment status. The agency initially claimed exemption in respect of the whole document. Following the recommendation of the Ombudsman, a redacted version of the document was provided to Mrs Zidar. The document was said to contain collated information from various sources and also contains "one person's views". It was said not to have been seen by any other party, but there is no way of knowing whether that is an accurate statement. The agency was unable to inform me as to when or why the document was prepared. Mr Zidar contended that the document pre-dated the child protection incident, but there was no evidence of that one way or the other.

51 The agency submitted that the remaining material in the document relates to the management of personnel and is thereby exempted under Clause 16(a)(iii) or 16(b). It was unclear to me though if this submission referred to the management of the school or the agency generally, or for that matter, Mrs Zidar or other staff members.

52 From the redacted version provided to Mrs Zidar it would be clear to her that the document referred to information said to have been provided to Mr Pryce by other persons about her performance. The document does not name those other persons, nor does it specify the conduct to which Mr Pryce refers in other that the most general terms.

53 It is relevant to observe that Mrs Zidar lodged a complaint about her treatment by Mr Pryce in his role as school Principal. Upon investigation by the regional School Education Director, Mr Pryce was found to have failed to adhere to a range of agency policies. In particular, I note that he was found to have failed to raise performance concerns with Mrs Zidar and had merged issues of child protection and performance when discussing Mrs Zidar with EPAC.

54 The agency submitted that in order to effectively manage staffing issues at a school there must be an open line of communication between staff and management and if the confidentiality of those communications was breached, it may result in a lack of confidence by staff in management, which may adversely affect management's ability to deal with those issues. I agree that an open line of communication between staff and management is necessary, especially in relation to performance issues. However the comments in this document are so vague as to be meaningless and provide no indication whatsoever as to source. I am not satisfied that, in the circumstances, the unredacted document could reasonably be expected to have a substantial adverse effect on the management of the school or the agency generally.

55 The agency further submitted that it is in the public interest that an agency has effective management of its personnel and relied on the comments by JM Montgomery in Freedman v Macquarie University at [70] & [71]. One means of effective management of personnel is through legitimate performance appraisal, which necessarily involves appropriate consultation with all relevant staff. Unfortunately this document appears to have little to do with that process. I do not consider that release of this document, on balance, would be contrary to the public interest.

56 I therefore find that document 2 in the Personnel file is not properly the subject of a claim for exemption and should be released to Mrs Zidar in full, and the decision under review in respect of that document is set aside.

Orders:
In respect of documents:
(1) EPAC file numbered 250, 268 and 271, the decision under review is affirmed other than as to the name of the child's mother.
(2) EPAC file numbered 16, 17, 68-72, 92-128, 139-140, and 192-195, the decision under review is affirmed.
(3) Personnel file numbered 32 and 103, the decision under review is set aside other than as to the name of the student and the name and contact details of the academic mentor.
(4) Personnel file numbered 2, the decision under review is set aside.