Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Tziolas v NSW Department of Education and Communities [2012] NSWADT 69
• Hearing dates: Hearing on the papers
• Decision date: 19 April 2012
• Jurisdiction: General Division
• Before: N Isenberg, Judicial member

Decision

The decision under review is:

1.set aside in respect of

folios 4-5

folios 52-54, other than as to the name of a person other than the author at folio 52

folios 66-68, 69, 72-78, other than in relation to names and email addresses

folio 71 other than in relation to the email address and telephone number

2.remitted for the respondent to make a decision in relation to documents identified as 'TABs A-F' at folio 4 of the EPAC file.

3.in all other respects the decision under review is affirmed.

• Legislation Cited: Government Information (Public Access) Act 2009
• Cases Cited: SL v University of Sydney [2011] NSWADT 65.; Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26; Howell v Macquarie University [2008] NSWCA 26; General Manager WorkCover Authority of NSW v Law Society NSW [2006] NSWCA 84; Chan v Department of Education and Training (GD) [2010] NSWADTAP 7; AWB Ltd v Cole (No 5) (2006) 155 FCR 30; Trade Practices Commission v Sterling (1979) 36 FLR 244; Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780; Opel Networks Pty Ltd (In Liq) (2010) 77 NSWLR 128; Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98; Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; Young v Wicks (1986) 13 FCR 85; Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195
• Category: Principal judgment
• Parties: Lynne Tziolas (Applicant); NSW Department of Education & Workforce Management & Systems Improvement Employee Performance & Conduct Directorate (Respondent)
• Representation: A Tziolas (Applicant, agent); NSW Department of Education and Communities (Respondent); Information Commissioner
• File Number(s): 113195

reasons for decision

Background

1 Mrs Tziolas, a school teacher, and her husband appeared nude in an article in Cleo magazine. A verbal complaint was made about Mrs Tziolas and forwarded to the respondent's Employee Performance and Conduct Directorate ('EPAC'). An investigation ensued and Mrs Tziolas was suspended. Mrs Tziolas complained about her treatment by the Department, including the treatment of her by the then Principal of the school at which she taught. Ultimately she was re-instated and moved to another school.

Background of application

2 By application dated 6 June 2011 the applicant sought access from the respondent under the Government Information (Public Access) Act 2009 ('GIPA Act') to:

1. Entire EPAC file documentation created for, and concerning employee, Lynne Tziolas.

2. Any additional information not already available within (1.) pertaining to DET reference number 08/1843.

3 Two EPAC files were found to be relevant and within the scope of the application - EPAC08/566 (EPAC file) and BD0154 (BD file). On 23 June 2011, Mr Neil Ray, Chief Investigator, EPAC made a decision to grant Mrs Tziolas partial access to the information held within the EPAC files. Information that Mr Ray identified to have an overriding public interest against disclosure was deleted before the remainder of the records were released to Mrs Tziolas.

4 Mrs Tziolas, dissatisfied with this outcome, sought review by the Tribunal, on 2 bases, namely that access had been refused to some of the information held by the respondent, and the decision that further government information was not held by the respondent.

5 Some further information has since been provided to the applicant.

6 The parties agreed to the application being determined on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 .

Law

7 Through the GIPA Act the government has created a legislative scheme under which a person can seek access to information that is held by the government. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (OPIAD): section 5. The GIPA Act overrides other statutory provisions that prohibit disclosure apart from the 'overriding secrecy laws' that are set out in Schedule 1. Section 13 provides that there is an OPIAD of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

8 Section 14 includes a series of Tables which specify the only other considerations that may be taken into account under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an OPIAD of government information.

9 Section 105 provides that the burden of establishing that the decision not to provide information is justified lies on the agency.

Issue

10 The review by the Tribunal falls into 2 parts, namely:

• Are there, in respect of the government information held by the respondent, public interest considerations against disclosure which, on balance, outweigh the public interest considerations in favour of disclosure: section 80(d) GIPA Act?; and
• Is there government information missing from that identified: section 80(e) GIPA Act?

Are there, in respect of the government information held by the respondent, public interest considerations against disclosure which, on balance, outweigh the public interest considerations in favour of disclosure: section 80(d) GIPA Act?

11 The respondent provided a schedule of the documents or parts of documents which it claimed were subject to an OPIAD. Copies of those documents were provided to the Tribunal. As far as possible, the documents have been grouped for consideration. Some documents were claimed to be exempt on more than one basis. Where a document is determined to be exempt from production on one basis, other bases relied upon by the respondent have not been considered. Only claimed exemptions maintained on internal review, and pressed, were considered.

Legal professional privilege: Schedule 1 Clause 5

12 Schedule 1, cl. 5 of GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege.

13 Further, an agency in whose favour legal professional privilege exists is nonetheless required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

14 A number of documents from the BD file were claimed to be exempt on this basis.

15 Folios 78-80, 82-88, 90 dated 2 June 2008, folio 103, folios 116, 122, folios 132 dated 23 June 2008, folio 141, folios 149-159, 162, folios 181-186, 192-203, folios 209-220, folios 224-242, folios 275, 281-282, 326: these pages are handwritten notes made by EPAC's Principal Legal Officer.

16 Folios 123- 124 dated 14 July 2008: this is a facsimile sent by the EPAC Principal Legal Officer to the respondent's Principal Industrial Officer, who, I was informed, is also a legal advisor of the respondent.

17 Folios 131,137-138,145,177 dated 8 June 2008: these draft letters contain advice sought and given by legal advisor(s) of the respondent.

18 Folio 166 dated 14 July 2008: this is a facsimile sent by the EPAC Principal Legal Officer to the Department's Principal Industrial Officer, who is also a legal advisor of the Department.

19 Folio 243-246 dated 12 November 2009: this document is a facsimile seeking legal advice.

20 Folio 70 (part): a portion of the document seeks legal advice.

21 Folios 249-251,256,262 dated 28 July 2010, 25 June 2010 and 15 June 2010: these pages are email communications among legal advisors of the Department, both internal and external.

22 Folios 259-261 dated 23 June 2010: this letter is legal advice given by a legal advisor to the Department.

23 Folios 268-271 dated 15 June 2010: these pages are email communications among legal advisors of the Department, both internal and external.

24 Folios 272-274 dated 23 June 2010: this letter reveals legal advice given by an external legal advisor to the Department.

25 Folios 280, 283-294 dated 9 June 2010: these pages are email communications among legal advisors of the Department , both internal and external.

26 Folios 323-324 dated 11 August 2010: these draft letters, with comments, contain legal advice sought and given by legal advisor(s) of the Department.

27 All the above documents were said to have been created for the dominant purpose of preparing for and conducting litigation and defending the Department's legal position. Upon internal review the respondent decided to uphold the previous decision not to waive its legal professional privilege in the matter.

28 Legal professional privilege was recently considered by the Tribunal in SL v University of Sydney [2011] NSWADT 65. It was observed that traditionally the interpretation of the exemption has been governed by the common law principles of legal professional privilege, rather than the statutory provisions relating to client legal privilege in the New South Wales Evidence Act 1995: eg Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26, at [9] to [12]; Howell v Macquarie University [2008] NSWCA 26; General Manager WorkCover Authority of NSW v Law Society NSW [2006] NSWCA 84. It was observed that since those decisions were made the Evidence Act 1995 has been amended, making substantial changes to the provisions dealing with client legal privilege. However in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 (Chan), an appeal panel decision, continued to adopt the traditional approach.

29 The broader principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at 44. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the agency has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice. The 'dominant purpose test' refers to:

a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect... the fact that the person... had in mind other uses of the document will not preclude that document being accorded privilege, if it were produced with the requisite dominant purpose. (per Barwick CJ in Grant v Downs (1976) 135 CLR 674)

30 For legal professional privilege to apply under the 'dominant purpose' test, a communication must have been created or brought into existence, ie made, drawn up, written, or prepared, for the 'dominant' purpose of either obtaining or giving legal advice, or in connection with pending or reasonably contemplated or apprehended legal proceedings.

31 In Chan the Tribunal referred to the 'categories of legal professional privilege' outlined by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 (Sterling) at 245-246 as including:

(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. ...

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. ...

( c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. ...

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. ...

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. ...

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. ...

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.

32 Some of the documents for which the claim of privilege has been made include communications between the respondent's officers and its internal legal advisers. Young J in AWB Ltd v Cole [at 46] summarised the principles relating to communications between government agencies and their salaried legal officers:

Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford at CLR 96; ALR 705 per Dawson J; see also Deane J at CLR 79-82, ALR 689-92. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2005] ACTCA 35, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacalat [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 ; [2004] AATA 1365 at [51].

33 Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780 at 51 did not consider the possession of a current practising certificate as being an 'essential precondition' to a claim of privilege made in relation to an employed Government lawyer. As His Honour pointed out at [51] the real test is 'whether the advice had the necessary quality of being independent advice'.

34 Having examined each document, I am satisfied that each was created for the 'dominant purpose' of giving or obtaining legal advice and falling, variously, within one or other of the categories identified above in Sterling. I am also satisfied that the advice provided by the respondent's in-house lawyers was given as independent advice. That is made plain from the contents of the documents. The privilege claim for exemption in respect of each document is therefore justified. That being the case there is a conclusive presumption of an OPIAD of that information. There has been no waiver. I accept that, there having been an internal review, the respondent considered whether it would be appropriate to waive that privilege.

Parliamentary privilege: Schedule 1 Clause 4(c)

35 It is to be conclusively presumed that there is an OPIAD of information, the public disclosure of which would, but for any immunity of the Crown, infringe the privilege of Parliament.

36 The respondent submitted that Folios 3-6 (BD file) is a 'House Folder Note' which includes speech notes and a briefing for the Minister. It was unclear if the speech was ultimately made, or made in precisely that form. I see no distinction between speech notes and briefing notes, in circumstances where, from its content, it is clear that the speech was prepared by officers of the Department for delivery to the House by the Minister.

37 In the matter of Opel Networks Pty Ltd (In Liq) (2010) 77 NSWLR 128 Austin J, considered there to be two general principles as to why briefing notes should be privileged from production. I agree with the Information Commissioner's submissions that those principles are relevant to the scope and application of clause 4(c) of schedule 1 of the GlPA Act. Austin J said [at118]:

... It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. ...

38 Another relevant consideration is that, while the use of Parliamentary information provided to a court pursuant to court procedures such as discovery and subpoena may be controlled, whereas disclosure of information pursuant to the GlPA Act is necessarily unconditional and therefore cannot be controlled.

39 The consequence is that Folios 3-6 are protected by Parliamentary privilege and it is conclusively presumed that there is an OPIAD of that information.

Other public interest considerations against disclosure

40 Section 14 sets out the only other public interest considerations against disclosure that may be taken into account. These considerations are set out in a series of Tables.

41 There was said to be an OPIAD on several bases in respect of 2 documents: Folios 4-5, and 52-54 (EPAC file).

Table 1(d): could disclosure of the information be reasonably expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions?

Table 1(f): could disclosure of the information be reasonably expected to prejudice the effective exercise by an agency of the agency's functions?

Table 2(a): could disclosure of the information be reasonably expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant?

42 The function of Table 2(a) is to preserve and protect the identity of the informant and the information provided to an agency. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information. For practical purposes, in the circumstances of the present matter, it is somewhat difficult to differentiate between the effect of Table 1(d) and Table 2(a) with respect to staff members, although Table 2(a) looks to the effect the disclosure may have on the future supply of information.

43 Folios 4-5: This is a briefing note for the respondent's regional director. Large portions were initially redacted but on internal review the redactions were significantly reduced. The redactions now relate to the identity of persons, some of whom were interviewed and some who provided statements. The focus of the briefing note was the conduct of the Principal in addressing staff about Mrs Tziolas, and her complaint about that.

44 Mr Schipp, the Manager of the Staff Efficiency and Conduct Unit provided a statement which included observations about 'investigations of this type'. He wrote that 'if information received in confidence were made public, it may destroy the relationship of trust that exists between the Department as an employer and it staff and between the Department and the broader community'. By the time this document was created, it would appear, the investigation of the applicant's conduct had been somewhat overtaken by the Department's reaction to her conduct. It was not by that time, therefore, an 'investigation' as foreshadowed by the Guidelines. In my view, staff members present at a meeting of this kind do not amount to 'informants', nor could it be said that their attendance was provided on some confidential basis. I also do not think it can be reasonably said that disclosure could be said to prejudice the effective exercise of the Department's functions.

45 Folios 52-54: This is an internal briefing to EPAC by a person identified by the respondent as the then Principal of Narraweena Public School. It is clear from the face of the document that it refers to the impact on the school and the community of the ongoing dispute between the applicant and the Department. The document is informal and ranges over a number of aspects of the school community. It also contains extracts of the school newsletter, and a 'potted' account of the school background. It appears that some of it, at least, was created ('cut and stick') from other documents.

46 Again, the present document is not one relating to some reporting by 'witnesses' of inappropriate or other conduct, but merely observations of the fallout of what had transpired between the applicant, the school and the Department. There is no doubt that there is a public interest in maintaining the flow of information from persons in assisting government agencies; when community sources provide information to an agency, it may, depending on all the circumstances, be reasonable to assume that the information was given on a confidential basis, particularly when the information relates to a matter of a high degree of sensitivity. In this document however, the author is not an anonymous member of the public providing information but the Principal of the school, providing candid observations about aspects of the school community. There was no evidence that she would not continue to provide information. I do not consider the document was supplied to EPAC in circumstances that could reasonably be expected to prejudice the supply to an agency of confidential information, and find that there is no OPIAD.

47 I find that neither document attracts Table 1(d), 1(f), or 2(a) in that the disclosure of the information could not reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of the Department's functions or to prejudice the effective exercise of the Department's functions or be reasonably expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant. Therefore there is no OPIAD.

48 Table 3 refers, relevantly, to individual rights.

Table 3(a): Could disclosure of information reasonably be expected to reveal an individual's personal information?

49 The following documents (or parts of documents) were claimed to be exempt from production on this basis: Folios 4-5 (part), 52-54 (part) and 66-68 (EPAC file) and 69, 70-71, 72-73 (BD file)

50 As was pointed out by the Tribunal in the recent decision of Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 at [40] (Richards):

It is important to note that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information they (sic) contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.

51 'Personal information' is defined in the GIPA Act as follows:

.. .information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (Sch 4(4)(1) GIPA Act.)

52 Notwithstanding the definition, what amounts to 'personal information' is not readily capable of an exhaustive statement, just as the term "personal affairs" was not capable of exhaustive definition with respect to applications under the Freedom of Information Act eg Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; Young v Wicks (1986) 13 FCR 85.

53 Section 54(2)(a) of the GIPA Act requires agencies, as far as reasonably practicable, to consult with persons before disclosing their personal information. If a person consents or does not object to the disclosure of their personal information, the application of clause 3(a) will be without effect or at least without weight in the application of the public interest test. The respondent informed the Tribunal that as there were some 15 individuals whose personal information is contained in the records consultation was expected to require some 30-45 hours of work and was not conducted, as this was regarded as an unreasonable and substantial diversion of the respondent's resources. I accept that, in the circumstances, consultation was not reasonably practicable.

54 Folios 4-5: The identity of staff members present at the meeting is not a matter which is intrinsically secret or confidential. At least two of those attending were supporters of Mrs Tziolas. It might reasonably be assumed that they were able to inform her as to who else was present. When the Principal's conduct at the meeting was being investigated it was reasonable to expect that those present would be asked for their views. I consider the the information contained in the document as to the identity of those who had provided statements or been interviewed has been publicly disclosed in that it is likely to have been already made known to the applicant, or is readily capable of being ascertained by her. The redactions are not appropriate. There is no OPIAD.

55 Folios 52-54: This document was also discussed above. The document contains information about a person who has information from unnamed parents and that information, in my view, amounts to personal information and should be redacted from the document. The document also provides observations about public activities of the President and others of the P&C. Applying Richards, the respondent has not established that the remainder of the information was not publicly disclosed.

56 Folios 66-68 and Folios 72-73: These consist of 3 emails from 3rd parties to the Public Liaison officer who forwarded them to another person in the Department. The emails are from members of the public, expressing views about newspaper reports about the applicant. They are not in the nature of communication by informants - see discussion above. Neither is properly claimed under Table 1(f) because the respondent, in setting up an avenue for public liaison for members of the public to provided comment cannot claim that to disclose the information would prejudice its effective functions. It is not that the correspondents offered new information; they merely commented on what was already publicly available. The content of emails is not properly the subject of a claim for OPIAD. The emails however contain the name and email addresses of the authors, which, in the circumstances, is appropriately regarded as personal information. The emails are to be provided to the applicant with the name and email addresses of the authors redacted.

57 Folio 69: This also consists of an email from a 3rd party to the Public Liaison officer who forwarded them to another person in the Department. For the reasons discussed above, that email is to be provided to the applicant with the name and email address of the author redacted.

58 Folios 70-71 (part): This consists of an email from a journalist to the Public Liaison officer. The last name of a journalist was released but his full name was deleted from both pages 70 and 71. This is inconsistent. The respondent considered that the applicant is aware of the identity of the journalist. As such, the full name of the person in both pages should be released. For the reasons discussed above, the remaining part of the email (after redaction for legal professional privilege - see above) is to be provided to the applicant with the email address and telephone number of the author redacted.

Is there government information missing from that identified: section 80(e) GIPA Act?

59 Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request:

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

60 Section 80(e) of the GIPA Act provides that a decision that government information is not held by the agency, is reviewable by the Tribunal. This differs from the predecessor the GIPA Act, the Freedom of Information Act 1989 (FOl Act).

61 The task before the Tribunal in considering issues of this kind is rarely an easy one, but simply put, the Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them.

Are there reasonable grounds to believe that there are additional documents?

62 It is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. The applicant was therefore invited to identify, as far as possible, information likely to be held by the respondent which was within the scope of the application but had not been addressed, that is, either provided to the applicant or withheld on the basis of claimed exemptions. Her response dated 1 September 201, however, rather than identifying information which she alleged was missing, instead posed a number of questions which, in my view addressed her substantive concerns about her treatment by the Department. To that extent it was unhelpful in identifying whether further information might be held by the respondent which had not been addressed in its response to her GIPA application.

63 I am not therefore satisfied that there are reasonable grounds to believe that there are additional documents. Having come to that view it was not necessary for me to consider the second limb of the Tribunal's task in respect of those matters.

64 What was apparent to me though, from reading Folio 4 of the EPAC file that witness statements attached ('TABs A-F') to that document have not apparently been considered in the application. They may, of course, have already been provided to the applicant, but I doubt this to be the case. To that extent the decision under review has not addressed those documents and, on that issue, the matter is remitted to the respondent.

65 It was clear to me that the applicant wishes to access other information held by the respondent about her. It may be that she made her present application believing that EPAC holds or has ready access to all records the respondent has in relation to her. The respondent informed me that EPAC is a 'specific and unique' directorate situated within one of its State Offices and that its functions primarily include investigative, advisory and policy work in relation to the performance and conduct of its employees. The sensitive nature of its work and confidentiality associated with many of its records necessitates that EPAC often operates separately from other business areas of the Department. Its records are therefore stored separately and securely. The respondent conceded that it is highly likely that other areas of the Department hold information about the applicant. Such information would only be duplicated in EPAC records where it had been relevant to specific EPAC operations and functions. Information that does not concern EPAC functions would not have been held by EPAC. Relevantly, I was informed that EPAC has limited ready access to information held by other areas of the Department.

66 Helpfully, the respondent identified other areas of the Department that are likely to hold files in relation to the applicant and provided file identifiers in relation to most of those files.

Decision

67 The decision under review is:

1) set aside in respect of

• folios 4-5
• folios 52-54, other than as to the name of a person other than the author at folio 52
• folios 66-68, 69, 72-78, other than in relation to names and email addresses
• folio 71 other than in relation to the email address and telephone number

2) remitted for the respondent to make a decision in relation to documents identified as 'TABs A-F' at folio 4 of the EPAC file.

3) in all other respects the decision under review is affirmed.

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Decision last updated: 19 April 2012