Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373 Hearing dates: 14 July 2022 & 16 September 2022 Date of orders: 21 November 2022 Decision date: 21 November 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The respondent's decision dated 20 September 2021 is affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review – Government information – onus of proof - scope of GIPA application - reasonable searches - confidential hearing and evidence - scope of application – whether documents held – public interest test – balancing the public interest Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Guardianship Act 1987 (NSW) Health Records and Information Privacy Act 2002 (NSW) Ombudsman Act 1974 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) State Records Act 1998 (NSW) Work Health and Safety Act 2011 (Cth) Cases Cited: Alam v Insurance and Care NSW [2020] NSWCATAD 148 Applicants v Commissioner of Police [2015] NSWCATAD 22 Attorney-General's Department v Cockcroft (1986) 10 FCR 180; (1986) 64 ALR 163 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Johnston v TAFE NSW [2019] NSWCATAD 152 Leech v Sydney Water Corporation [2010] NSWADT 298 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 Pearson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 113 Robinson v Commissioner of Police [2014] NSWCATAP 73 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; (1992) 108 ALR 163 Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 Walker v Roads and Maritime Services [2019] NSWCATAD 177 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Principal judgment Parties: Haci Emin Orhan Ugur (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: Applicant (Self Represented) Ms K Mattes (Respondent) File Number(s): 2022/00065944 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (NSW Trustee and Guardian).

REASONS FOR DECISION

Background 1. These proceedings concern a request that Haci Emin Orhan Ugur (the applicant) made to the NSW Trustee and Guardian (the respondent) on 18 February 2020 for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself, as follows: A copy of all information (all correspondence, communications, inquiries and documents, notes, including emails in any format) contain personal information held in relation to Haci Emin Orhan Ugur [DOB] (the Applicant) regarding all entry, records, files, plans (or health care plan), consent (or contracts), inquiries and responses including but not limited to: a. All entries on the existing database system of the OPG Office of Public Guardian relating to Haci Emin Orhan Ugur (DOB:…); b. A copy of all documents or records or files or correspondence relating to Haci Emin Orhan Ugur (DOB: …) including (without limitation) any files or records involving: i. All correspondence and communication related the [sic] Applicant between the OPG and DIAC (or contractor of DIAC such as GSL or IHMS), Legal Aid NSW, the Crown Solicitor, NSW Guardianship Tribunal, Commonwealth or NSW Ombudsman Office or AGS or HREOC or NSW Police or NSW Ambulance or NSW Health (including Transcultural Health Centre) or individuals from those organisations or private sich [sic] as medical practitioners or lawyers or diplomatic mission; ii. Copy of all documents or records or files or communications relating to Haci Emin Orhan Ugur (DOB: 15/07/1959) including any files and records involving the "Monitoring with Advocacy" category and policy, medical, legal and coercive power consent, compulsory medical treatment and/or medical treatment and/or medical procedure, supervision and/or surveillance management, detention or other forms of control of Mr Ugur; iii. Document includes, without limitation, originals and copies of all correspondence, memoranda, minutes, written and electronic communications, emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, receipts, invoices, computer discs, computer and video and master tapes and any other form of digital or electronic storage of information; c. Including any files and records involving the "Monitoring with Advocacy" category, policy and procedure; d. Any documents held by the offices of the Department of Justice about "Monitoring with Advocacy: category policy and procedure; e. On 16 February 2006 I was in the Villawood Immigration Detention Centre at 15 Birmingham Avenue, Villawood NSW 2163, the Public Guardian was appointed concerning me by the NSW Guardianship Tribunal. 1. The matter has a lengthy prior history, which is summarised as follows. 1. On 17 April 2020, the respondent issued a Notice of Decision under the GIPA Act. 2. On 13 May 2020, the applicant applied for an internal review of that decision. 3. On 3 July 2020, the respondent issued a Notice of decision upon internal review. 4. On 26 August 2020, the applicant applied to the Information and Privacy Commissioner (IPC) for an external review. 5. On 26 October 2020, the IPC recommended that the respondent reconsider its decision. 6. On 27 November 2020, the respondent issued a new notice of decision to the applicant. 7. On 21 December 2020 the applicant applied for an internal review of that decision. 8. On 9 February 2021, the respondent issued its review decision and upheld its decision dated 27 November 2020. 9. On 8 April 2021, the applicant applied to the IPC for external review of the decision dated 27 November 2020. 10. On 28 July 2021, the IPC recommended that the respondent reconsider its decision. 11. On 20 September 2021, the respondent issued a new notice of decision to the applicant. 12. On 10 November 2021, the applicant applied to the IPC for a further external review of that decision. 1. In his request for external review by the IPC dated 10 November 2021, the applicant alleged that the respondent had not made a new decision and he requested a review of the respondent's decision to redact information, including contact information for medical professionals involved with his care during his guardianship in 2007-2008. 2. On 9 February 2022, the IPC issued a Review Report, which concluded that the respondent's decision dated 21 September 2021 was justified. 3. On 7 March 2022, the applicant filed the current application, which sought a review of the IPC's decision dated 9 February 2022. However, I am satisfied that the respondent's decision dated 20 September 2021 is properly the subject of the current application.

The decision under review 1. On 20 September 2021, the respondent decided: 1. To provide access to the applicant's personal information (ss 5, 9 and 58(1)(a) of the GIPA Act); 2. That that they did not hold any material belonging to the former Department of Justice involving the "monitoring with advocacy" category policy and procedure (s 58(1)(b) of the GIPA Act); 3. To provide access to some personal information belonging to other people (that may include their personal opinions about the applicant), but to refuse access to some information as there was an overriding public interest against disclosure (ss 12, 13 and 14 of the GIPA Act; 4. To provide full access to documents, where it appeared that the information was initially provided to the applicant by a third person (s 58(1)(c) of the GIPA Act). As the applicant already had or has access to this information, they did not consider whether there was an overriding public interest against disclosure and personal information of third parties in those documents. 1. The respondent stated that it had conducted reasonable searches to locate the government information sought in the GIPA request and that they conducted further searches before making this decision and details of these searches were set out in some detail. The respondent also stated, relevantly: NSWTG had previously conducted searches of hard copy documents, which included a copy of a file retrieved from Government Records Repository (State Records at Kingswood). The hard copy file was still in our office, therefore did not need to be retrieved again. NSWTG also conducted searches for any material belonging to the former Department of Justice involving the "monitoring with advocacy" category i.e. email, audit, communication, policy and procedure. It was determined that we do not hold any material belonging to the former Department of Justice involving the "monitoring with advocacy" category as per s 58(1)(b) of the GIPA Act. Public Guardian were also consulted with and this line of inquiry produced no additional documents that fell within the scope of the GIPA access application. Additional information The Public Guardian was appointed as your guardian from 16 February 2007 to 18 February 2008. On 10 January 2007, you requested access to information from the Department of Immigration (formally known as the Department of Immigration & Citizenship (DIAC)) under the Freedom of Information Act 1982 (Cth) (the FOI application). The DIAC sent documents relating to the FOI application to your assigned guardian to deliver to you, however, the documents were refused and they subsequently were retained by the NSWTG. These FOI documents form a large part of the requested information and some are outside the dates the Public Guardian was appointed. The last file held by the Agency is dated September 2008. NSWTG acknowledges that some records that fell within the FOI had numbers on them, which does make it difficult to work out the sequence and if documents were missing etc, and that some did refer to attachments. NSWTG cannot confirm if those FOI documents were provided in the first instance. NSWTG also acknowledges that some of our file notes and/or records in Lotus notes and/or CRM do sometimes refer to attachments. Normally these attachments fall to the next page of the file note/record. Where we have the attachments, we have provided them, however, there may be reasons why we did not receive the attachment in the first place. When printing the documents from our systems it is a manual process one by one and these are printed in the order they are found. A staff member then has to manually collate the documents in date order, to the best of their knowledge. This may mean documents appear to be out of order or appear to be missing. 1. The respondent identified the public interest considerations in favour of disclosure, namely that there is a general public interest in favour of disclosing government information (s 12(1)) and that the requested information is the applicant's personal information. They decided that the latter was a strong factor in favour of disclosure. 2. The respondent also identified the public interest considerations against disclosure and relied upon cll 3 and 6 of the Table to s 14(2) of the GIPA Act) the former being a "strong" consideration against disclosure and the latter being a "relevant" consideration against disclosure. They stated that given the highly personal nature of the information and opinions expressed about the applicant, those persons (or a Government Department) may be expected to have concerns about disclosure of the information. 3. Section 54 of the GIPA Act requires that consultation must be undertaken (if reasonably practical) where the information includes personal information about the person, and the person may reasonably be expected to have concerns about the disclosure of the information and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure. It was therefore necessary to consider whether it was reasonably practical to consult with third parties. Given the age of the information (more than 10 years old) and the fact that the information included personal information of a large number of third parties, many of whom had no or old contact details, the respondent decided that it was not reasonably practical to consult with them. 4. However, the respondent consulted with the Department of Home Affairs (the successor the Department of Immigration) as they held a number its files relating to the FOI application. That Department replied that it generally had no objection to release of the documents under the GIPA Act, but that its current policy requires redaction of identifiers such as staff names, contact details and email addresses, as there have been documented cases of members of staff being harassed and receiving personal threats to their safety. It stated that it has a primary duty of care to ensure, so far as is reasonably practical, the health and safety of its offices under the Work Health and Safety Act 2011 (Cth). 5. The respondent noted that Dr S Smith and Dr A Morgan were consulted by the Department of Immigration regarding the release of their reports under the FOI Act, but stated that they did not consult with them for the purposes of the GIPA request as it appeared that the applicant already had a copy of their reports. 6. The respondent also stated that the GIPA request sought information that was excluded under s 59 of the GIPA Act, because it was information that was already available to the applicant, namely: (a) information from the former Administrative Decisions Tribunal; (b) information from the Administrative Appeals Tribunal; (c) Information from the Supreme Court of NSW; and (d) information about the former Federal Magistrate's Court. Records relating to proceedings of various courts and tribunals are considered to be excluded information of an agency (judicial and prosecutorial information – sch 2) and therefore, there is a conclusive presumption of public interest against disclosure (sch 1). 7. Schedule 2, cl 6(1) of the GIPA Act provides that there is a conclusive presumption against disclosure of information if it is excluded information of an agency for judicial or prosecutorial purposes (but not administrative). Records that relate to the proceedings of the former ADT, AAT and former Federal Magistrate's Court may be considered excluded information. 8. However, the respondent decided to grant further access to this information under s 58(2) of the GIPA Act as it was information was already available to the applicant. 9. The respondent stated that in balancing the public interest, it took into account the considerations in favour of disclosure and those against disclosure. They gave substantial weight to cl 3(a) to the Table in s 14(2) of the GIPA Act – "reveal an individual's personal information", in relation to personal information and opinions about the applicant by individuals whose identity is apparent or can reasonably be ascertained from the documents. They gave this consideration greater weight as it was not reasonably practical to consult with those persons regarding the release of the information. 10. In relation to cl 6 to the Table in s 14(2) of the GIPA Act – "secrecy provisions", the respondent stated that under s 101 of the Guardianship Act 1987 (NSW) (Guardianship Act), a person shall not disclose any information in consideration with the administration or execution hope the guardianship act unless the disclosure is made with the consent of the person from whom the information was obtained. This does not lead to an automatic non-disclosure of information under the GIPA Act, but it is a matter that should be considered under cl 6 in applying the public interest test. While the Guardianship Act is not a law listed in sch 1 as an overriding secrecy provision, cl 6 provides: 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. 1. The respondent stated that they gave greater weight to this public interest consideration against disclosure because of they were unable to seek consent from all of the people who provided the information contained in the records sought by the GIPA request. 2. The respondent stated that, on balance, they decided that the public interest considerations against disclosure outweighed those in favour of disclosure in relation to the personal information of persons who were exercising public functions. Therefore, their personal information was redacted from the information released to the applicant. They also provided a detailed Schedule of Documents with their decision.

Procedural directions 1. On 4 April 2022, Senior Member Perrignon conducted a case conference at which the applicant was self-represented and T Burston (Crown Solicitor's Office) appeared for the respondent. The Senior Member ordered that the IPC has a right to be heard in these proceedings, but is not a party, and he amended the name of the respondent to NSW Trustee and Guardian. He ordered the applicant to file and serve all evidence and submissions by 31 May 2022 and he ordered the respondent to file and serve all evidence in reply and submissions by 12 June 2022. He directed the parties to provide each other with a list of all witnesses required for cross examination by 17 June 2022 and listed the matter for a hearing on 14 July 2022. 2. However, on 29 April 2022, Senior Member Mulvey extended the time for compliance with the previous orders and directed the applicant to file and serve reasons supporting an application to adjourn the hearing by 4 May 2022, with a respondent to advise by 6 May 2022 whether they consented to the adjournment. The parties were also to indicate whether the adjournment request could be determined on the papers without the need for a hearing and/or why an in-person hearing was required.

The hearing 1. The matter came before me for hearing on 14 July 2022. The applicant appeared in person and Ms K Mattes appeared for the respondent. I noted that on 24 March 2022, the IPC advised the Tribunal that she did not intend to appear or file submissions in the matter.

The evidence 1. The applicant had not filed any evidence, but he had filed lengthy written submissions (40 pages plus numerous annexures) dated 7 June 2022. I admitted these submissions into evidence and marked it as exhibit "A". 2. The respondent relied upon a Statement of Ms Cheree Offner dated 2 May 2022. 3. Ms Mattes stated that the applicant had required Ms Offner to attend for cross-examination and that she was available for this purpose. I admitted the statement into evidence and marked it as Ex 1.

Adjournment application 1. I note that on 13 July 2022, the applicant lodged submissions in support of his adjournment request, which This was effectively based on the late service of Ex 1 and his complaint that the respondent failed to comply with the Tribunal's procedural orders. The applicant initially stated that the statement was served upon him "early this week", but he later said that he "found it yesterday" and that he had not had time to read it because he had been busy. 2. The applicant also took issue with the respondent lodging a Confidential Tender Bundle and he stated, relevantly: 3. … a. The respondent it's not a security or an intelligence agency to collect information from the informer. The Guardianship Act is not listed in schedule 1 of the GIPA Act. The information is not related the national security. the respondent involved a third party including medical and legal professionals an unsuitable persons to collect information to use against the applicant (also involved payment). the third parties already know the information can access anytime by GIPA Act. people have the right to access amend update or ask a review personal information and medical information. b. they case linked a sane detainee released from immigration detention centre to a psychiatric care. The PG consented, and involved to collect false medical reports concerning the applicant to set up a conditional release from the immigration detention centre to a psychologist care (or health care). cheering this time the legal rights of the applicant exercised both by the PG, the Legal Aid NSW and the monitoring with advocacy. c. whether the Legal Aid NSW and the Monitoring with Advocacy involved in this case. d. In 2008, the PG refrained (deliberately did not do it) from putting above material before the hearings, the Supreme Court NSW and the Federal Court of Australia (and refused to notify the applicant). The PG involved to harm the applicant psychologically and physically that a jurisdictional error occurs when the extent of that authority is misconceived. e. The applicant believes Ms C Offner he's not a proper person to prepare an affidavit (or statement) in this proceeding. she involved twice improper decision making linked this application. f. Whether a breach of a fair hearing (and a fair trial) rule, including article for saying off the International Covenant on Civil and Political Rights (ICCPR) And also may breach is relevant to the articles 15, 19, 9(4) and 13 of the ICCPR. g. The respondent decisions were not procedurally fair concerning the applicant… i. … j. The representative of the respondent misconstrued rule the law (cases) i.e.: tend to reveal the identity of an informant or prejudice the future supply of information from an informant, Endanger or prejudice any system or procedure for protecting the life health or safety of any person, Clauses 2-3 and 6 of the Table in Section 14 – Secrecy provisions. k. The applicant claims the above information to be unlawfully obtained (or fabricated) regarding the applicant. the matter had been contaminated by payments made by the third party to unsuitable persons. the applicant refers Julian Moti case. The respondent and the third parties already know the information can access at any time. That the information is probative of a matter against the applicant an issue of these Security Agency according to the jurisdiction Federal or NSW. The applicant receives a judicial review. l. The applicant refers to section 12 of the GIPA Act… m. The applicant also refers to the Public Interest Disclosure Act 2010 (NSW). n. Interests of justice. 4. The issues: a: Whether the decisions of the agency dated 27 November 2020 (made by Ms Cheree Offner), 20 September 2021 and (made by Ms Lianne Carter) and 20 September 2021 (made by Ms Cheree Offner a second time) erred that the decision-maker was mistaken about the facts or about the law. Therefore, the applicant believes the decisions of the agency above are linked and they review reports of the IPC and the submission of the respondent have not taken place. The applicant requests the Tribunal considers to apply legal rights and obligations that the agency (OPG) and officials, like private citizens, act within the law and not arbitrarily. The agency should reconsider the issue and proper officer makes a fresh decision according to the Act. b. the respondent involved an officer (Ms Cheree Offner) her background linked Corrective Services NSW made up a statement on 2 May 2022, on purpose that she claims undertaken reasonable searches and collected document to release the applicant. the previous, Ms Offner made up 2 decisions regarding the applicant dated 27 November 2020 and 20 September 2021. Ms Offner misapplied the GIPA Act. 5. The responded did not provide a list related items linked access request of the applicant to apply exemption or redacted copy of the items. It is not clear, whether contain of the Confidential Bundles and they determining the reasonable searches conducted and located documents released to the applicant according to the Act. i.e. the item 1 of the Schedule to the decision has not a list of the document comprises. The respondent refused to provide a list of the document in the record of the PG comprise item 1-6 of the Schedule to be decision. 6. The decision of the respondent is not included: a. An explanation of what the decision-maker understands the applicant's request to be; b. How the agency's record keeping system is organised and where and how the agencies searched; c. How the information is retrieved from the record keeping system; d. The search terms used by the agency to identify information relevant to the request first released to the IPC not the applicant. The IPC refused to provide the response of the OPG. The decision maker stated she did not conduct a search and she received from a third party officer of the respondents below terms. The respondent failed to provide any supporting documents such as a screen printing; e. It is not clear description of the proper records that were searched, how the information is stored and how the agency was able to ascertain what information was relevant to the applicant's request; f. The steps taken by the agency to retrieve any documents that are the subject of the request such as searches conducted by whom? 7. according to paragraph 43 of these submission of the respondent linked "Monitoring with Advocacy" contradictory with the conducted searches to locate the information linked to the applicant by the respondent. The representative of the respondent stated "… at the time it exercised guardianship functions with respect to the applicant". And later she states "… there is no reason to expect that any further information about the manner". 8. The representative of the respondent refers to a document that is not released the applicant (even rejected form and there is no list giving by the respondent). Whether the respondent failed to correctly apply the GIPA Act to identify the documents an provided the applicant collected information, including "Monitoring with Advocacy" function of the respondent and other information. The applicant refers to the NSW Public Guardian's Advocacy Report 2011-2012 prepared by NSW Public Guardian Graeme Smith is attached and marked "B"… 9. The respondent involved an officer (Ms C Offner) her background linked NSW Department Corrective Services and the former Minister for Counter-Terrorism, Minister for Corrections and Minister for Veterans' Affairs. She made up a statement. Ms C Offner made a statement which is hidden from the applicant who is a party. it is not clear what the statement of Ms C Offner provided through a legal service provider i.e. Legal Aid NSW, or Monitoring with Advocacy. 10. The applicant learned recently: the Public Guardian made some unlimited consent regarding the applicant. For example, set up some structure to affect the applicants liberty who is not under guardianship without granting a judicial review… 11. According to the submissions of the respondent the search request of the applicant conducted by a third party officer subsequently made up a secret statement (to escape the cross examination) another officer and the respondent requesting a hearing in the absence of the public prevented the applicant received a fair hearing. The applicant suggests the respondent used legal technicality and influences to the IPC and the Tribunal. 12. Whether the respondent establish is a new type economic end cheap corrective facility and experimentation for different background persons without any proper court decision, involved to collect false medical reports (an assumption or informer made up the risk of the community) and the function of the OPG… 14. The above information is important that the PG involved dishonest and selfish medical and legal professionals who provided false reports concerning the applicant an unsuitable persons used as an informant to establish structures. they monitoring with advocacy, the legal service and the psychiatric care to gain financial benefit by professionals who supplied the false medical reports, monitoring, involuntary assessment, monitoring with advocacy, hospitalisation, legal service, psychiatric care (for health care) etc. on purpose to harm the applicant without a court decision. The motive was implied a condition that condition of the applicant will correspond with the description of the medical report was provided to the respondent, consequent to establish a second time the public guardian order concerning the applicant. The applicant believes it is a violation of international law and unlawful. 1. The Tribunal considered the applicant's submissions, and noted that many of the submissions addressed matters that are not relevant to the current dispute. It particularly considered whether the late service of Ex 1 would cause the applicant prejudice which required the perusal of Ex 1. 2. The Tribunal asked Ms Mattes, as an officer of the Court, to indicate whether there was any information in Ex 1 that could reasonably be expected to take the applicant by surprise and/or to cause him prejudice. Ms Mattes responded to the effect that while there was no previous statement from Ms Offner, the searches that she refers to in her statement are clearly set out in the decision dated 20 September 2021 and no new matters have been raised. She observed that the applicant was well aware of these searches because he had addressed them at some length in Ex A. 3. Ultimately, the Tribunal decided not to vacate the hearing on the basis that the information in the statement was not significantly different to that set out in the decision dated 20 September 2021 and the applicant was not taken by surprise by its contents. The Tribunal also observed that the applicant had addressed the question of searches at length in his initial submissions and those dated 13 July 2022. 4. However, the Tribunal stated that if it became apparent during the applicant's cross-examination of Ms Offner that he was prejudiced by the late service of Ex 1, or if the hearing could not be concluded within the allocated time, the matter would be adjourned on a part-heard basis and the Tribunal would make directions for filing and service of any further evidence and/or submissions by the parties.

Evidence of Cheree Offner 1. I note that in Ex 1, Ms Offner stated that she is the Manager of Ministerial and External Relations at the Respondent and has held that role since 4 February 2019. In that role, she manages a team that ensures Ministerial advice meets quality standards and oversees management of feedback from the respondent's clients and that she coordinates, oversees and undertakes the preparation of high level responses to ministerial correspondence, briefings and parliamentary material to ensure they are accurate, timely and meet the requirements of the minister. The role is also responsible for managing GIPA requests. 2. Ms Offner stated that she was responsible for preparing the Notice of Decision dated 20 September 2021, including undertaking the relevant searches and enquiries on which the decision was based. In preparing her Statement, she relied upon her general knowledge and experience with the respondent's record keeping systems, her enquiries with the staff of the Public Guardian (which sits within the respondent) and her review of the records of this application, including the disputed information. 3. Ms Offner stated that in response to the applicant's FOI application dated 11 January 2007, the respondent received documents from the Department of Immigration and Citizenship and records indicate that the applicant refused to accept delivery of those documents. Therefore, they remained in possession of the Public Guardian (PG). The respondent made a number of decisions in relation to the GIPA request, including internal reviews and external reviews by the IPC, but her decision dated 20 September 2021 was a new decision under s 93 of the GIPA Act.

Decision that no information held and searches undertaken 1. Ms Offner stated that the PG is an administrative division of the respondent and the PG's records are held by the respondent for the purposes of the GIPA Act. However, because of the need for confidentiality associated with the PG's work, the PG maintains separate records-keeping systems and staff of the respondent (who do not work within the PG division) do not have direct access to those systems. She does not have direct access to them and she therefore corresponded with PG staff and caused them to conduct relevant searches of the PG's databases. 2. Ms Offner stated that as a result of her communications with PG's staff, she understands that there are four possible locations where information would be held by the PG, namely: 1. Hard copy files, particularly in relation to older records. The PG retrieved the hard copy file relating to the applicant from storage; 2. Lotus notes, a document and email management system utilised by the PG until about the end of August 2017; 3. Customer Relationship Management (CRM) database, which was the document management system that replaced Lotus notes; and 4. Email inboxes of PG staff (including the PG registry) management via Microsoft Outlook. 1. Ms Offer stated that she caused the PG's staff to undertake searches of each of these files and databases and that searches of electronic databases were conducted using multiple specified search terms (each was a variation of the applicant's name). She also caused similar searches of the respondent's database systems, which are: 1. Client Information System (CIS), which is used to assist in the management of clients under financial management orders (not applicable to the applicant); and 2. TRIM, being the general electronic document management system. 1. Given the breadth of those searches, she anticipated that all information held by the respondent and PG would be identified and in total, 916 pages of material were identified. She stated that all of this information was disclosed to the applicant, although some of it was disclosed "in part". 2. In relation to documents relating to "Monitoring with Advocacy", Ms Offner stated, relevantly: 17. In the decision, NSWTG Determined that it held no documents in relation to the "monitoring with advocacy" category (at page 3). 18. At the time I was undertaking and facilitating searches for the information sort by the access application in preparing the decision, I was not familiar with the phrase "monitoring with advocacy" in relation to documents held by NSWTG or the PG. PG staff, with whom I made enquiries, also did not recognise that term. 19. nevertheless, I caused searches to be undertaken of each of the database is an files referred to at [10] and [12] using the term "monitoring with advocacy" in association with the applicant's name (or variations thereof, per the above mentioned search terms), including for any documents held by NSWTG or the PG belonging to the former Department of Justice. I also caused a search to be undertaken of the NSWTG "intranet", which is relevantly used for the distribution of documents relating to policies and procedures, for documents referencing the "monitoring with advocacy" category. No documents were identified in relation to that phrase. 20. Since the decision, and on the basis of documents filed in separate proceedings brought by the applicant, I now understand the phrase "monitoring with advocacy" to refer to an internal PG file category designation, which was relevantly attributed to the applicant's file in a "client audit" form at the time that file was closed in early 2008. An unredacted copy of that form was included in the documents released to the applicant (C confidential bundle at tab 1, page 157). From subsequent consultation with PG staff following that clarification, I understand that the "monitoring with advocacy" description indicates there I know active decisions that can be made for a person but that the person may need some advocacy in their life. When that client audit was completed following the lapse of the guardianship orders in respect of the applicant, the file category should have been changed to "discharged", but in this case was not as the result of an administrative error. However, that descriptive error on the client audit form had no practical or substantive effects on the closure of the applicant's file at that time. An internal practise guideline further explaining the "monitoring with advocacy" category and other category types is a next and marked with the letter "A". 21. Notwithstanding that clarification, I do not consider there are any further searches that could have been undertaken which would have discovered further information responsive to the categories described at [16] above. In my view, any further documents relating to the manner in which the applicants file was internally categorised by the PG, before or after discharge, would have been discovered by the searches described above. Pre-existing redactions to released material 22. I am aware that common edition to the redactions made to the material released to the applicant as a result of the decision, some of that material contains other reductions. in particular, the information of the Department (of Immigration and Citizenship) provided to the PG as a result of the applicants request under the FOI Act includes a number of other reductions. 23. Those reductions were not made by NSWTG (or the PG) and reflect the state of that material at the time it was received from the Department by the PG on behalf of the applicant. NSWTG does not possess unredacted versions of that material, and is not aware of the reasons for those reductions. 24. For clarity, the reductions made as a result of the decision are marked in red in the confidential bundle that will be filed by the respondent in these proceedings.

Ms Offner's oral evidence 1. Ms Offner gave brief oral evidence under oath, in which she confirmed the accuracy of the information contained in her statement regarding the searches that were undertaken before she made the decision dated 20 September 2021. 2. In cross-examination, the applicant asked Ms Offner whether she had made two decisions in relation to his GIPA request, and she replied "yes". He then referred to each of the respondent's decisions made before 20 September 2021 and sought to ask Ms Offner questions about those decisions. 3. However, the Tribunal disallowed the applicant's questions about the decisions made before 20 September 2021 on the basis that the decision that is under review is that dated 20 September 2021. The Tribunal advised the applicant that he could ask Ms Offner questions about that decision, but that questions about earlier decisions are not relevant to the current dispute and would not assist the Tribunal in determining it. 4. However, the applicant persisted in seeking to question Ms Offner about the earlier decisions and it was necessary for the Tribunal to remind him of its previous ruling on several occasions. 5. The applicant asked Ms Offner "if she was qualified to deal with GIPA matters" and she replied "yes". He put to her that she did not search the PG databases and she replied to the effect that she had not searched them because she is not an employee of the PG and she does not have direct access to them. Therefore, she asked members of the PG's staff to conduct the searches for her. 6. The applicant then put to Ms Offner that she "was telling stories". However, the Tribunal disallowed that question. 7. The applicant asked Ms Offner if she had conducted any searches and she replied that she had, and that these were set out in the decision dated 20 September 2021 and Ex 1. He then asked why nine separate variations of his name were used in the searches? She replied to the effect that this was a "catch-all" exercise so that all possible records would be identified. 8. The applicant complained that Ms Offner had not provided the name(s) of the people who conducted the searches. However, as this was not a question to the witness, but a submission, the Tribunal did not require Ms Offner to answer it. The applicant then asked Ms Offner if she considered the searches to be reasonable? She replied "yes" because 916 pages of documents were located. 9. The applicant then stated that this was not correct and he referred to annexure "H" to Ex A, which is Health Care Plan dated 10 January 2008. He asserted that the PG requested this from the Department of Immigration and Citizenship and that the respondent had not produced this. Ms Offner replied to the effect that she could not comment on why this document may not have been produced by the PG. 10. However, the Tribunal observed that this document was already within the applicant's possession. 11. Ms Offner stated that she had conversations with PG's staff about the searches that needed to be conducted and that she made sure that she had an understanding about what they were doing. All of the located documents were printed out and she then caused them to be scanned and released. No index or list of documents was provided with these documents, but they were printed out in date order. 12. The applicant then asked Ms Offner if she believed that her statement was correct? She replied "yes". He then put to her that she was "not giving proper information" but Ms Offner disagreed with that proposition. 13. In relation to "Monitoring with Advocacy", Ms Offner stated that Annexure "A" to Ex 1 is a Practice Guideline, which clearly indicates that the term is a file designation only and that it is not a separate area within the PG. The applicant asked whether she had asked anyone within the PG to search for "Monitoring with Advocacy"? She replied "yes" and said that no particular information was found. She also searched this term in the respondent's intranet. 14. The applicant put to Ms Offner that she had "made up" her statement as it relates to his GIPA application. She denied this. 15. The applicant then put to Ms Offner that she did not make proper searches. She disputed this. 16. The applicant then put to Ms Offner that her statement is inadequate. She replied to the effect that she provided adequate evidence as required for the hearing of this matter. 17. The applicant then stated that he had no further questions for the witness. 18. Ms Mattes did not seek to re-examine Ms Offner and the Tribunal released her from further participation in the matter.

Further application for adjournment 1. The applicant again applied for an adjournment on his previous grounds. However, the Tribunal refused this request and observed that the applicant had completed his cross-examination of Ms Offner, which was the main basis of the application.

The matter generally 1. Ms Mattes stated that in response to the GIPA request, respondent prepared a Schedule of Documents, which sets out 6 distinct categories of information. they have released documents in full in relation to categories 2 and 5, but there is a dispute over the documents described in categories 1 and 6 and the personal information of third parties (which has been redacted). The issue for determination by the Tribunal is whether the redactions, which were made under cll 3(a), 3(b) and 6 of the Table to s 14(2) of the GIPA Act, are appropriate. 2. The respondent decided that it does not hold any documents described in categories 3 and 4 of the Schedule of Documents. 3. The applicant complained that the documents produced in category 1 of the Schedule of Documents should have been indexed and he pressed for full disclosure of the documents described in the remaining categories. 4. Ms Mattes referred to the respondent's Open Tender Bundle and stated that the documents under category 1 of the Schedule of Documents are found at Tab 3. She said that the applicant wants access to the names of staff and their position in the Department, but not their contact details, and he believes that there should be no redactions. However, the names etc of NSW Public Servants have not been redacted and the only personal information that was redacted relates to non-government employees.

Issues for determination 1. The Tribunal identified the relevant issues as: 1. Whether the respondent conducted reasonable searches – s 53 of the GIPA Act; and 2. Whether there was an overriding public interest consideration against disclosure of the disputed information. 1. In view of these issues, the Tribunal determined that it would be necessary to conduct a confidential hearing under s 107 of the GIPA Act. 2. The Tribunal attempted to explain this procedure to the applicant, but he repeatedly interjected and became quite argumentative. At one point, he complained to the effect that the Tribunal was acting "like NAZI Germany". However, the Tribunal informed the applicant that his comment was grossly offensive and he subsequently withdrew it. 3. The applicant persisted in demanding access to the confidential tender bundle, but the Tribunal informed him to the effect that the purpose of the confidential hearing was to enable the Tribunal to consider whether or not the disputed information had been properly withheld. Under s 107 of the GIPA Act, the Tribunal was satisfied that it was appropriate to conduct that part of the hearing in his absence. 4. Accordingly, the Tribunal adjourned the open hearing on a part-heard basis until 10am on 4 August 2022.

Confidential hearing 1. The Tribunal conducted a confidential hearing, in the absence of the applicant, in relation to the disputed information. The hearing was conducted in accordance with s 107 of the GIPA Act and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. [NOT FOR PUBLICATION]

Tab 1 – Documents relating to the exercise of the Public Guardian's functions. 1. Ms Mattes stated that in relation to these documents, the respondent relies upon cll 3(a), 3(b) and 6 of the Table to s 14(2) of the GIPA Act. The redactions commence on page 8 and are as follows: [NOT FOR PUBLICATION]

Tab 2 documents – Immigration documents 1. Ms Mattes stated that the respondent relies upon cl 6 of the Table to s 14(2) of the GIPA Act, as follows: [NOT FOR PUBLICATION] 1. Following completion of the confidential hearing, the Tribunal adjourned the matter until resumption of the open hearing on 4 August 2022.

Further open hearing 1. Unfortunately, the hearing could not proceed on 4 August 2022 and the Tribunal resumed the open hearing on 16 September 2022. The applicant appeared in person and Ms Mattes appeared for the respondent. 2. The Tribunal noted that it had received further written submissions from the applicant dated 12 September 2022 and 15 September 2022. 3. The applicant also sought to file and serve an Affidavit that he affirmed on 13 September 2022. 4. The Tribunal asked Ms Mattes whether the respondent objected to the tender of this affidavit. She replied to the effect that the respondent did not object to the tender, but that it does not deal with any of the issues in dispute that were identified by the Tribunal during the previous hearing. 5. The Tribunal perused the Affidavit and observed that it did not deal with either of the issues in dispute and that it was therefore not relevant. However, the applicant "insisted" that the Tribunal accept his Affidavit. 6. Ultimately, the Tribunal admitted the Affidavit and marked it as Ex B, but I expressed the view that its contents are not relevant to the matters in dispute and that it should be afforded little weight. 7. Ms Mattes stated that the respondent did not wish to cross-examine the applicant in relation to Ex B. 8. Accordingly, the Tribunal proceeded to hear submissions.

Respondent's submissions

Written submissions dated 2 May 2022 1. After setting out a background to the GIPA request, the respondent stated, relevantly: Legislation 19. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information, unless there is an overriding public interest against disclosure. A person who makes an access application for government information under s 9 of the GIPA Act has a legally enforceable right to access that information, unless there is an overriding public interest against disclosure of the information. 20. Where material is not subject to a conclusive presumption of an overriding public interest against disclosure under the terms of s 14(1) of the GIPA Act, regard must be had to the "public interest test" set out in s 3, which provides that: There is an overriding public interest against disclosure 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. 21. Section 12(1) provides for recognition of the general public interest in favour of disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest in favour of disclosure. The note to s 12(2) lists examples of the types of considerations in favour of disclosure that may be taken into account. 22. Section 14(2) provides that only those considerations listed in the table to s 14 may be taken into account as public interest considerations against disclosure when determining whether there is an overriding public interest against disclosure. relevantly come up for the purposes of these proceedings, the table to s 14 provides that there is a public interest against disclosure where disclosure could reasonably be expected to: a. reveal an individual's personal information – cl 3(a); b. contravene any information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) or a health privacy principle under the Health Records and Information Privacy Act 2002 (NSW) – cl 3(b); and c. but for the operation of the GIPA Act, contravene a provision of any other Act or statutory rule (office or another State or of the Commonwealth) that prohibits the disclosure of information – cl 6. 23. Section 58 of the GIPA Act sets out how access applications may be decided by agencies. Relevantly, an agency may determine an access application by deciding that information is not held by the agency (s 58(1)(b)), or to refuse to provide access to information because there is an overriding public interest against disclosure (s 58(1)(d)). 24. Both of the above types of decision are "relevant decisions" under the terms of ss 80(d) and (e) of the GIPA Act. A person aggrieved by a "reviewable decision" my steak review of that decision by the Tribunal under s 100 of the GIPA Act. The onus is on the respondent to establish that the decision is justified. 25. Section 104(3) confers a right for any person who might be aggrieved why a decision of the Tribunal (sic, agency) on review under Pt 5 of the GIPA Act to appear and be heard in any proceedings before the Tribunal in relation to that review. 26. The task of the Tribunal when undertaking administrative review is to determine what the "correct and preferable" decision is: s 63 of the Administrative Decisions Review Act 1997. The time at which the determination is to be made as to the correct and preferable decision is the date and time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. Jurisdiction of Tribunal and issues in dispute 27. On 4 April 2022, in the course of the case conference in this matter, the respondent observed the present application was ambiguous as to the aspects of the decision regarding which review was sought, and that it raised several issues which appeared to go beyond the scope of the Tribunal's jurisdiction in conducting administrative review of the decision under the GIPA Act. the tribunal indicated that those concerns should be dealt with in the parties' submissions. 28. Noting that the burden of establishing that the decision is justified lies on the agency (s 105), the respondent has set out below its understanding of the applicants concerns and they legitimate scope of these proceedings for the purpose of these submissions. Should the tribunal ultimately find that the scope of these proceedings is otherwise than as understood by the respondent, the respondents seeks an opportunity to supplement its written submissions an any oral submissions accordingly Matters not within scope 29. The respondent notes that there are several features of the present application which it considers are not appropriate or relevant matters to be addressed by the tribunal in conducting administrative review under s 100 of the GIPA Act, I did because they do not concern a "reviewable decision of an agency" otherwise are not relevant to the task of the Tribunal in conducting "administrative review" of a decision. Those issues include that: a. The present application names the Information and Privacy Commission as a respondent, and attached is a copy of the Review Report by way of the decision to be reviewed; b. In an attachment titled "grounds for application", the present application lists various matters in the nature of judicial review grounds, largely directed at the review report rather than the decision, including: i. Denial of procedural fairness; ii. "Whether the evidence is capable of supporting a conclusion of fact"; iii. Whether the finding of fact was perverse and unsupported by evidence; iv. Whether the Information Commissioner considered irrelevant considerations; v. Whether the decision of the Information Commissioner was made in good faith; vi. "The ordinary meaning of a word"; vii. Whether the decision of the Information Commissioner was legally unreasonable; and like submissions. 30. The respondent submits that those submissions are not properly directed to the Information Commissioner, and are not particularised in respect of either the Review Report or the Decision such that they can be responded to, and in any case are matters not relevant to administrative review by the Tribunal pursuant to s 100 of the GIPA Act. 31. In the same attachment, the applicant refers to the lapse of the guardianship order and states that the respondent should transfer all "related information" to the applicant "according to the Supreme Court of NSW decision on 5 May 2008 (at [29]). The respondent is not aware of any order of the Supreme Court made on 5 May 2008 in relation to any information held by the respondent, end notes that the guardianship order in fact lapsed considerably earlier, on 18 February 2008. Matters within scope 32. The responded understands that the applicants concerns relating to the Decision are, in essence, set out at [24]-[28] of the attachment to the present application titled "grounds for application", extracted below: 24. The applicant appeal the Tribunal analysed the decision of the Agency and the IPC: a. whether the respondents have identified the correct legal test; b. whether the respondents have applied the correct test; c. whether there is any evidence to support the finding of a particular fact; d. whether the facts found fall within a statute properly construed; e. weather a decision to provide access or to refuse to provide access to information; f. where they were decision that government information is not held by an agency (adequacy of the agency's searches); g. weather decision to refuse to confirm or deny that information is held by the agency; h. weather in decision to transfer and access information and document to the same Agency; i. whether some information is not held by the agency (adequacy of the agency's searches). 25. The applicant is not interested in the information related address and contact details of persons making reports to the agency. 26. The applicant believes the name and contain of the information should be released whether the information in the hands of the Agency, be true or false which contain adverse material without initiated any court proceedings by Agency. 27. While there is an exemption for personal privacy within the FOI Act, the Australian Information Commissioner guidelines provide detailed information about the test for this exemption and makes clear that staff names are not subject to an exemption. 28. The applicant believes the tribunal should take a common-sense approach in considering whether the number of deletions would be so many but the remaining document would be of little or no value to the applicant." 33. Cross-referenced against the matters in fact addressed by the Decision, the respondent understands that the applicant takes issue with: a. The decision of the agency that it did not hold any information relating to the "monitoring with advocacy" category, including policies and procedures (items c and d of the applicant's request); and b. The decision of the agency to refuse access to certain information in the material released (by the way redaction) on the basis that it contained personal information for the purposes of cl 3(a) of the Table to s 14 of the GIPA Act, supported by the consideration in cl 6 respect of some of that withheld material. 34. For the avoidance of doubt, the respondent: a. Has not made a decision to refuse to confirm or deny that information is held by the respondent; and b. Does Not understand what is meant by "a decision to transfer an access information and document to the same Agency" but has not transferred any of the respondents documents held by the respondent.

Reasonable searches 1. The respondent relied upon the IPC's findings in the Review Report at [9]–[16] and referred to the process to be followed by an agency which was set out in the decision of the Appeal Panel in Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 ("Wojciechowska") at [44], as follows: 1. Identify on the basis of the agencies reasons and the applicant's submissions, any relevant factual issues including those derived from ss 53(1) – (50; 2. Determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. Consider any evidence which may have emerged since the agency made its decision, which might change to prove that the requested information is held by the agency; 4. Applying those findings, decide what the correct or preferable decision is; 5. Affirm, set aside or very the agencies decision: s 63(3) of the Administrative Decisions Review Act. The respondent stated that when considering the manner and extent to which an agency has discharged its obligations under s 53 of the GIPA Act, the focus of the tribunals inquiry will be the administrative steps taken by the agency's search officers, with particular regard to the matters addressed by ss 53(2) and (3): Robinson v Commissioner of Police, NSW Police Force [2014] NSWCATAP 73 at [33] – [34]. Relevant queries may include (a) Whether the searches undertaken by the respondent addressed the specific time period described by the request, and (b) Whether inquiries have been made of the relevant areas within an agency likely to hold documents, and all relevant electronic records and systems have been searched. See, for example, the approach taken in Pearson v Commissioner of Police, NSW Police Force [2019] NSWCATAD 113 ("Pearson") at [22] and Johnston v TAFE NSW [2019] NSWCATAD 152 ("Johnston") at [27]. 1. The respondent stated that with respect to electronic data systems, an agency should identify the systems on platforms on which the kind of information sought is held, and the search is conducted on those platforms, but it is not required to provide specific details of search engines or algorithms of its electronic data systems: Alam v Insurance and Care NSW [2020] NSWCATAD 148 at [55]. 2. In Walker v Roads and Maritime Services [2019] NSWCATAD 177, the Tribunal summarised the following principles relevant to the consideration of whether reasonable searches had been undertaken by an agency (at [87]): a. What constitutes a sufficient search will vary with the circumstances. key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant all those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 (at [30]); b. That they may be weaknesses in an agency's searches or that there are failures in its record keeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 (at [15]); c. The fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities {2014] NSWCATAD 12 (at [28]). 1. In this matter, the records and databases searched, and the specific electronic searches conducted, are set out in Ex 1 at [10] - [19]. The respondent argued that the Tribunal would be satisfied that those searches were broad in both the sources of material search and the type of searches that were undertaken. They encompassed materials on databases used by the respondent generally and separate databases employed by the PG specifically, as well as the applicant's hard copy file. Over 900 pages of material was uncovered. There is no reason to expect that they searches would not have uncovered all material held by the respondent containing the applicant's personal information, let alone the specific sub-categories sought by the GIPA request. While the respondent acknowledges that it bears the burden of establishing that those searches were reasonable, the applicant has not (at least in his application) signalled any particular concerns or "factual issues" with the type and breadth of the searches undertaken by the respondent that the Tribunal needs to consider in undertaking the task set out in Wojciechowska. 2. In relation to the "Monitoring with Advocacy" category in particular, the respondent acknowledges that its understanding of what is meant by that term has developed since the decision was made (see Ex 1 at [20]). The respondent now understands that the term refers to an internal file designation used by the PG at the time it exercised guardianship functions with respect to the applicant, and that it was incorrectly used to describe the applicant's file in a client audit form completed when the file was closed in early 2008. As stated by Ms Offner (in Ex 1), there is no reason to expect it any further information about the manner in which the applicant's file was internally described would not have been caught by the broad searches undertaken by the respondent, even if it had been aware of the meaning of that phrase at the time that the decision was made. 3. Therefore, the respondent argued that it searches were reasonable within the meaning of s 53(2) of the GIPA Act, and the Tribunal should affirm its decision that it holds no information of the type sought in the GIPA request.

Decision to refuse access to information 1. [The respondent stated that the information to which access has been refused is marked in red and contained in Tabs 1 and 2 of its Confidential Tender Bundle (being items 1 and 6 of the Schedule of Documents). There are several documents in this material that have been released in which redactions were previously applied (see Ex 1 at Tab 1, p 6). As stated in Ex 1 at [22] - [23], those redactions were not applied as result of the decision. In view of the age of the material, it is unclear when and for what reason that material was redacted. 2. In relation to applying the public interest test, the respondent relied upon the decision of the Appeal Panel of the Administrative Decisions Tribunal in Camilleri [2012] NSWADTAP 19, from [19] to [26]: Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. The new Act as the most structured approach to the decision-making task then was seen under the previous legislation. The agency case for refusal must rely on one or more of the s 14 considerations. The Tribunal's task E into why that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by those provisions. The Table considerations are concerned with systemic features of the operation of government. … the section 14 questions needed to be examined at a broader operational level than occurred in this case … It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to this specific aspects of the instant case. 1. The respondent noted that the Appeal Panel concluded that it was "not relevant to the Tribunal's task at the s 14 stage of the enquiry to take account of events subsequent the circumstances that gave rise to the document or information the subject of the refusal",,,,,,,,,,,,,,,,, as "the s 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged". 2. The considerations against disclosure in the Table to s 14 of the GIPA Act arise with the disclosure of information that "could reasonably be expected" to have the relevant effect. The phrase "could reasonably be expected to" was used in sch 1 of the former Freedom of Information Act 1989, as well as in the Commonwealth FOI Act and has been the subject of extensional judicial consideration. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180, Bowen CJ and Beaumont J held that the words: require a judgement to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous how much you expect that those who would otherwise supply information of the prescribed kinds to the agency would decline to do so if the document in question were disclosed under the Act. It his son desirable to attempt any paraphrase of these words. In in particular it is undesirable to consider the operation in terms of probabilities or possibilities or the like. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal held: The term "could easily be expected" has been considered a number of cases. the words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. the test to be applied is an objective one, approached from the viewpoint of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or chance. it must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC. 1. In Flack v Commissioner of Police (NSW) [2011] NSWADT 286 at [42], the Administrative Decisions Tribunal cited the approach in Leech with approval. 2. The word "prejudice" is given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [47]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 3. The word "reveal" is defined in sch 4, cl 1 in the following terms: Reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 1. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found that the tribunal had erred by applying an overly demanding evidentiary standard, insofar as it required the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected" standard. The Appeal Panel was critical, in particular, of the Tribunal's emphasis on the need for specific evidence as to what supplies of information would actually do if the confidentiality of information could not be assured. Given the administrative nature up the decision in issue, and the abstract and hypothetical subject matter, the Appeal Panel found that the tribunal had overstated the importance of such evidence and been too stringent in its approach. An ordinary weighing of the material by the Tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than this subjective views of witnesses.

Public interest considerations in favour of disclosure 1. The respondent argued that in addition to the general public interest favouring the disclosure of government information, which is recognised by s 12 of the GIPA Act, the decision dated 20 September 2021 acknowledged that the information requested by the applicant was his personal information. They argued that his consideration has been substantially met by the disclosure of the vast majority of the information that is held. The substance of the information, both with respect to the processes of relevant agencies and decisions that were made with respect to the applicant, have already been disclosed. Therefore, there could be no significant public interest in the additional disclosure of the names or contact details of persons involved in the past guardianship order who were not (or not clearly) exercising public functions.

Clauses 3(a) and (b) to the Table in s 14(2) of the GIPA Act – reveal personal information and contravene privacy legislation 1. The respondent referred to the IPC's findings in the review report at [25] - 31] in relation to this issue. They argued that while the decision dated 20 September 2021 cited only cl 3(a), they now also rely upon cl 3(b) in respect of the same information, on the basis that disclosure of the disputed information to the applicant could be expected to contravenes 18 of the PPIP Act. 2. "Personal information" Is defined in sch 4 cl 4(1) of the GIPA Act to include 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 what can reasonably be ascertained from the information or opinion. 3. The respondent stated that the disputed information comprises: 1. The names and contact details of medical staff, non-government organisations staff another private individuals involved or interested in the care and management of the applicant while he was detained at Villawood Detention Centre, including the names of persons whose roles are not able to be clearly identified from the material; 2. The personal (i.e. non-business) phone numbers of staff of the PG; and 3. In two instances, an opinion expressed with respect to the applicant. 1. In relation to items (1) and (2) above, the Tribunal should be satisfied on the face of the face of the information, that it comprises the personal information of the individuals named or appearing in context with it. 2. In relation to item (3) above, the respondent argued that the Tribunal would be satisfied that opinions expressed by an individual can comprise their personal information (see Applicants v Commissioner of Police [2015] NSWCATAD 22 at [62]), particularly whether the opinion expressed is sensitive in nature. 3. For the reasons set out in the decision dated 20 September 2021, it was not reasonably practicable for the respondent to consult with all of these individuals. However, given the sensitive medical and personal context of the information, it might be expected that these individuals would have had reservations about the disclosure of their personal information to the applicant and, particularly any opinions expressed regarding sensitive medical matters. The respondent argued that this enhances the weight that the Tribunal should give to the considerations in cll 3(a) and (b) and that these considerations should be given significant weight.

Clause 6 of the Table to s 14(2) of the GIPA Act – secrecy provisions 1. The respondent relied upon the IPC's findings in the Review Report at [32]-[35] in relation to this issue and argued that generally, the GIPA Act overrides secrecy provisions in other legislation except for those expressly identified in sch 1 (s 11). However, it remains a public interest consideration against disclosure of information where disclosure could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of the provision of any other Act or statutory rule (including of another state or the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. That public interest consideration expressly extends to consideration of the policy underlying the exemption (cl 6(2)). 2. Section 101 of the Guardianship Act 1987 (NSW) (the Guardianship Act) provides: 101 Disclosure of information A person shall not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made— (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Act or the Civil and Administrative Tribunal Act 2013, (c) for the purposes of any legal proceedings arising out of this Act or the Civil and Administrative Tribunal Act 2013 or of any report of any such proceedings, (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or (e) with other lawful excuse. Maximum penalty—10 penalty units or imprisonment for 12 months, or both. 1. The respondent argued that s 101 reflects the legislative concern to preserve confidentiality over the often sensitive personal and medical circumstances in which a guardian may need to be appointed and take a role in managing an individual's affairs. Significantly, it makes no express exception with respect to the person the subject of any guardianship orders which, reflects the fact that it may not always be in the best interests of the subject of the guardianship order to have access to material relating to the imposition and administration of that order, especially where it arises from concerns relating to their psychological health. In those circumstances, s 101 operates to ensure that third parties can be comfortable communicating frankly with the PG in the best interests of the subject of the order (and thereby facilitate the functions of the PG) in the knowledge that such information will not typically be disclosed to the subject of the order safe where consent is provided. The respondent also noted that significant penalties apply to any contravention of s 101, which demonstrates the policy intention that it is to be strictly complied with. 2. Section 101 applies only to information obtained "in connection with the administration or execution of this Act". For the purpose of these proceedings, s 101 applies to the part of the material contained at Tab 1 of the Confidential Tender Bundle, being the records of the PG relating to the guardianship order with respect to the applicant in 2007-2008. None of the exceptions are applicable in this case. 3. Therefore, the respondent relies on cl 6 to the Table in s 14(2) of the GIPA Act only with respect to the redacted information in Tab 1 of the Confidential Tender Bundle, and only as an additional consideration supporting the redactions made under cll 3(a) and (b). No information has been withheld solely on the basis of the public interest consideration against disclosure described by cl 6. 4. For the most part, the redacted information is the identities and opinions of third parties who contributed in good faith to the medical care of, or the provision of services to, the applicant while he was held in immigration detention in circumstances where he had been assessed as experiencing a chronic delusional disorder. This information expressly falls within the terms and the implied policy rationale of s 101 of the Guardianship Act. Therefore, this consideration should be giving significant weight.

Weighing the public interest considerations 1. The respondent argued that the disclosure of the disputed information cannot be expected to further contribute to the transparency off the respondent and its processes. All substantive information relating to the manner in which they exercised their functions with respect to the applicant, and the identities of the staff involved, has already been released. Therefore, it is difficult to say what public purpose is served by the further release of the identities and contact details of the remaining third party individuals. 2. The respondent also argued that with the exception of two instances in which opinions expressed regarding the applicant had been redacted, none of the disputed information could be considered the applicant's personal information. Further, the guidelines published by the Australian Information Commissioner with respect to the Commonwealth FOI Act, make it clear that staff names are not subject to an exemption, and the Commonwealth legislation does not apply to a GIPA request. The names of persons exercising public functions (where clearly identifiable) were not redacted. 3. While the applicant appears to argue that the number of reductions are such that the remaining document is of little or no value to him, the respondent argued that the redacted material is negligible and does not detract from the substance of the material in any significant way. It is not clear what "value" the applicant imagines he would obtain from access to the redacted information. 4. Against this, the public interest considerations against disclosure are compelling. The withheld information comprises the personal information of third parties which would in normal circumstances be protected by both the PPIP Act and the additional stringent protections of s 101 of the Guardianship Act. As well, the age of the information makes it difficult or impossible to ascertain whether there are any particular objections from those parties to release the information. Therefore, the Tribunal could not be satisfied that there is any clear public interest justifying the release of the disputed information and the balancing exercise would fall in favour of withholding it.

Conclusion 1. The respondent argued that the correct and preferable decision is to affirm their decision that they do not hold any documents relating to the "Monitoring with Advocacy" category and refuse access to the disputed information.

Applicant's written submissions 1. Exhibit A comprises 40 pages, much of which is irrelevant to the current dispute and is instead directed at the IPCs Review Report and not the respondent's decision dated 20 September 2021. The applicant he also referred at length to other proceedings in the Federal Court of Australia and the Supreme Court of NSW "against these certain areas of the government" and to events that allegedly occurred within the period of the guardianship order. Those matters are not relevant to the determination of the current dispute. I have therefore not summarised his submissions about any events before 20 September 2021. 2. The applicant alleged that the decision is not a "new" decision and that the respondent "made a jurisdictional error" and Ms Offner "demonstrated an erroneous approach" in making the decision, as: 1. She was mistaken about the facts (or about the law) and the respondent did not apply s 93(5) of the GIPA Act. He appeared to argue that Ms Offner could not make this decision because she is less senior to the person who made the original decision; 2. She took into account irrelevant factors or ignored relevant factors; 3. She made the decision for an improper purpose; and 4. She lacked capacity to make the decision. 1. The applicant complained at some length that in 2008, the PG failed to accord him natural justice, but these submissions are not irrelevant. He also took issue with the respondent's assertion that it ceased to apply the "Monitoring with Advocacy" file designation to his matter in 2009. However, the relevance of this is unclear in the current circumstances, in which the guardianship order ceased in February 2008. 2. The applicant argued that as the Guardianship Act is not a law listed in sch 1 of the GIPA Act "as an overriding secrecy provision", the respondent should have applied cl 6 of the s 14 table when conducting its public interest test. He asserted that the public interest test was applied on the basis that the information is subject to the Guardianship Act and not the GIPA Act. He also alleged that the respondent holds additional information, namely a Transition plan and consent, and he concluded that the IPC's decision that the respondent does not hold any further information is "incorrect". 3. On 13 September 2022, the applicant filed further lengthy Submissions (37 pages plus annexures), which largely repeated the matters that he previously raised. I have summarised his further submissions that I consider to be relevant to the current dispute as follows: Summary The Applicant prepares this submission the Tribunal refused the deal: a) The decision of the agency is not a new decision according to the Act. The decision of the respondent is inadequate and an improper response to the application of the applicant. Ms C Offner improperly uses her position (and connection) made up 2 decisions linked this matter constituted a jurisdictional error. b) The Tribunal refused to deal the respondent who did not comply for compliance with directions (2, 5 and part of direction 3) of the orders on 4 April 2022 (which was later amended on 29 April 2022) where made by the Tribunal. Constituted failure to accord the requirements of natural justice (procedural fairness). c) The Tribunal refused the applicant's request to determine any application (or documents) filed with the NCAT by the applicant, The respondent and other third parties must be served on all the parties to the proceedings or making her decision. for example, i.e. it is not clear any other documents from a third party, included such as from "monitoring with advocacy" or "legal aid NSW" accept an application for legal representation. d) The adequacy of respondents searches and decisions that records are not held and the statement of the Ms C Offner inadequate and is misleading. e) Public access to Tribunal documents and hearings ● The applicant refuses to evidence and submissions be provided in confidential session. the respondent failed to provide its reasons the applicants request that their submissions an oral evidence open to the public following reasons: ● The general rule is that hearings are held in public and, in principle comment anyone, including the press, can attend a hearing that is held in public; ● Interest of justice; ● The applicant rejects the documents disclosed in proceedings can only be used in this hearing; ● Legal technicality used by the respondents to affect outcome desired; ● the respondent failed to reply to the submission of the applicant. the respondent also did not comply for compliance with directions (4, 5 and part of direction 3) off the orders on 4 April 2022 (which was later amended on 29 April 2022 were made by the Tribunal); ● There is no cause sudden change the types of the Tribunal hearing. the respondent is not a law enforcement agency. the information is not related the national security… 1. The applicant demanded (at para 1b on page 3) that the respondent should "provide a print screen of the searches and inquires (sic) (search parameters) conducted to locate the requested documents". He also stated (at para 1c) that, "there are reasonable grounds to believe there is other information in existence that fell within the scope of the access application…" 2. The applicant also made complaints regarding the conduct of the hearing on 14 July 2022 and he asserted that he "found" Ex 1 on 13 July 2022. He stated, relevantly (at para 11): f. …The respondent has not given any reason why Ms Offner statement released to the applicant a day earlier from the hearing of the case. This very interesting the position of the respondent changed suddenly a day earlier. I this being a strategy of the respondent or? ● It seems, this was occurred involving with Monitoring with Advocacy or the Legal Aid NSW who exercised my legal rights according to a lawyer's interpretation according to the consent of the Public Guardian. g. The respondent and the Tribunal are not providing any reason linked the statement of Ms Offner released a short time before the hearing day. This also shows a third-party involvement this case. There was no reason the respondent altered its view. 12. At the hearing 14 July 2022: a. On 14 July 2022, first, the Tribunal persuades the cross-examination of Ms C Offner. The Tribunal refused to deal any other matter before cross-examination of Ms Offner. After the cross-examination of Ms Offner completed, the Tribunal did not deal any other matters also, connected the submission of the applicant dated 13 July 2022 (or application) linked the adjournment connected the respondent did not follow the directions of the orders. ● Whether the Tribunal erred the Tribunal refused the decide before the case started to determine the agenda of the hearing. b. 14 July 2022, in the hearing, the applicant believes the Tribunal misinforms the applicant that, the Tribunal stated the cross-examination of Ms Offner connected with the adjournment application of the applicant. c. The Tribunal refused the applicant claim that the statement of Ms Offner did not serve by the date on 2 May 2022 ordered with the directions of the orders on 4 April 2022 were made by the Tribunal. d. The Tribunal stated the applicant received the statement of Ms C Offner yesterday. The Tribunal asked the applicant to read the statement of Ms Offner and to cross-examine her… The Tribunal did not follow the procedure. e. Whether the Tribunal erred, she refused the applicant's request to determine any application (or documents) filed with the NCAT by the applicant, the respondent and other third parties must be served on all the parties to the proceedings, or making the decision. For example i.e. It is not clear any other documents from a third party, included such as from "Monitoring with Advocacy" or "Legal Aid NSW accept an application for legal representation". f. Whether the Tribunal erred, during the cross-examination of Ms Offner, the Tribunal was answering the questions of the applicant constituted procedural unfairness. The applicant prevented from cross-examine Ms Offner used legal technicality by the respondent and the Tribunal. This is together with: ● The applicant prevented from reply with an affidavit form (sic) Ms Offner's statement. ● The applicant precented from prepare and cross-examine a proper person. ● The applicant used his limited English to ask a question. The Tribunal answering from the statement of Ms Offner. She did not allow Ms Offner to answer it. This constituted procedural unfairness. g. Whether the Tribunal erred that, the Tribunal stated Ms Offner searched as a person the access application of the applicant. In the cross-examination it became clear, Ms Offner did not search any part of the access application of the applicant. At the hearing, Ms Offner's claim is inconsistent with Ms Offner's statement and her decision. Ms Offner claimed linked searches as a person is also irrelevant to access application of the applicant. The direction 2 of the orders is related that "The respondent's name is amended to NSW Trustee and Guardian". The access application of the applicant linked the Office of the Public Guardian record systems. h. Ms Offner has never claimed she conducted a search as a person linked the access of the application of the applicant in her statement and decision… iv. In the paragraph 3 of the decision of Ms Offner dated 20 November 2021 stated also "NSWTG has conducted a search" without any supporting material. v. In the hearing, the Tribunal stated Ms Offner searched the access application of the applicant as a person. This is incorrect and inconsistent with her statement and with her decision. It seems to be Ms Offner misleading uses her position, confidential statement and the confidential haring without any supporting material referring a conversing with a third party who is not involved in this proceeding. i. The above information's and s 107 of the GIPA Act involved for confidential hearing for an inadequate statement of Ms Offner submit by the respondent used for legal technicality to get favour decision linked an inadequate decision made by Ms Offner. This is cause improper compliances orders of the NCAT became permanent. j. Whether the Tribunal erred that the Tribunal asked the applicant to leave the hearing. The submission of the respondent requested deal with in accordance with the requirements of s 107 of the GIPA Act. The applicant has not received any application from the Minister administering the Act (or the OPG). The Tribunal did not deal also with the beginning of the hearing proceeding schedule. But the Tribunal asked the applicant to leave the hearing without any early notification… 13. Whether the Tribunal erred in failing to direct the respondent to provide a proper decision according to the GIPA Act section 93(3) and (5) that the agency's reconsideration of a decision is to be by way (mechanism) of internal review of the decision (under Division 2) unless the decision has already been internally reviewed, in which case the Agency is to reconsider the decision and make a new decision. And "The reconsideration of a decision that is not an internal review cannot be done by a person who is less senior than the person who made the original decision". The GIPA Act does not identify the same position. Ms Offner and Ms Carter were repeating the same action. The applicant believes Ms Carter and Ms Offner misapplying the law and misleading. 1. Otherwise, the applicant assert that the respondent closely monitored and abused to harm (him) psychologically and "psychically" (see para 26), and that the respondent "often used CapacityToolkit2020 to collect incorrect assessment can result in the denial of a fundamental human right; the right to autonomous decision-making or 'self-determination'". In paras 27 to 31(xii) (inclusive) he recited a litany of "ways" in which the respondent allegedly contravened his human rights and Australian and International law, which constituted slavery and exploited him, and he stated, "…The PG established structure concerning the applicant (labelling the person with intellectual disability) under beneficiary." 2. Further, at para 37, the applicant stated: The respondent exploited the applicant to established structures to harm the applicant psychologically and physically to generate a second time guardianship order concerning the applicant to gain benefits. The respondent is acting worse than Hitler (or associate fascist staff) who did not exploit their experiments to gain benefits. Experimented, kill and burn. In the circumstances, disclosure of the information would inform the public about those policies and practices, including whether they are followed, and this in turn would enhance public confidence in the Office of Public Guardian. The disclosure of the information of the applicant would promote open discussion on an issue of public importance, namely the effectiveness of the OPG NSW involved about 47,000 clients every year. It is also the respondent's breach of the privacy of the persons who regain capacity and the Capacity ToolKit improper manner used (misused) any community members any time. It is not respecting the judicial decision. It is not granting a judicial review. This is unfair. … 1. On 16 September 2022, the applicant filed further Submissions, which largely repeated matters that he had previously raised. However, he also argued that Ms Offner's oral evidence does not support the respondent's case and he alleged (at para 6a(ii)), "Therefore, Ms Offner could be lying" and (at para 6c), that "Ms Offner is providing third party information without any determination as to its reliability". Further, (at para 6e), he stated: Ms C Offner misleads the Tribunal used confidential statement and the hearing with the following paragraph. What is the fact in the statement of Ms C Offner at [20] stated as below: …When that client audit was completed following the lapse of the guardianship orders in respect of the applicant, the file category should have been changed to "discharged", but in this case was not as the result of an administrative error. However, the descriptive error on the client audit form had no practical or substantive effect on the closure of the applicant's file at that time". It is Ms Offner's opinion. The evidence of an opinion is not admissible to prove the existence of a fact... 1. The applicant also alleged (at para 8) that the respondent is "acting in aggression" and that "the aggression involves three components". However, from the terms of the following sub-paragraphs, it appears that this relates to the alleged actions of the respondent during the period of the guardianship order in 2007-2008.

Oral submissions 1. Ms Mattes argued that the applicant's submissions dated 13 September 2022 and 16 September 2022 are mostly irrelevant to the issues in dispute in this matter. Ms Offner's decision dated 20 September 2021 was made based upon the IPC's recommendation that the respondent should reconsider its decision. On 9 February 2022, the IPC issued a further Review Report and determined that the respondent's new decision was justified. 2. The respondent's position is summarised as follows: 1. Over 900 pages of documents have been provided to the applicant and no further information is held; 2. The decision to refuse access to personal information of private individuals is justified; 3. Ms Offner was cross-examined and the Tribunal should be satisfied on the following matters: 1. The PG is an administrative division of the respondent; 2. She requested the PG's staff to undertake searches for information relating to the applicant on a confidential database because only the PG's staff have access to it; 3. The searches included hard copy files, Lotus Notes, the Customer Relationship base and inboxes maintained by Microsoft Outlook. The search terms used are set out in Ex 1 and before making the decision, she satisfied herself that no further information was held; 4. 916 pages of documents were located, but no records relating to "Monitoring with Advocacy" were found because neither she nor the PG's staff were aware of this being a work area. Searches were conducted for this "category", but no documents were found; 5. Subsequent to making her decision, she made further enquires and ascertained that "Monitoring with Advocacy" was an internal file designation used by the PG which was attributed to the applicant's file when it was closed in 2008 (when the guardianship order ceased). The designation of "discharged" should have been applied at that time, but there was an administrative error and "Monitoring with Advocacy" was applied instead; 6. The respondent satisfied its search obligations under s 53 of the GIPA Act; 7. The respondent has not had any substantive dealings with the applicant since 2008 (when the guardianship order ceased). 8. The correct and preferable decision is that no further documents are held by the respondent. 1. With respect to the disputed information, the respondent provided the applicant with redacted copies of documents within categories 1 and 6 of the Schedule of Documents. The redacted information is personal information, including names, contact details and opinions of non-government employees who were employed at the Villawood Detention Centre during the period of the applicant's detention. 2. Clauses 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act applies to the redacted information as disclosure would contravene s 18 of the PPIP Act. It was not reasonably practical for the respondent to consult with each of these persons, but it would reasonably be expected that they would have concerns about disclosure of their details to the applicant. 3. Further, cl 6 of the Table to s 14(2) of the GIPA Act applies to information set out in Tab 1 of the Confidential Tender Bundle (item 1 of the Schedule Documents) as the information is subject to s 101 of the Guardianship Act and that Act prohibits its disclosure. This gives rise to an overriding public interest against disclosure of the disputed information. 4. The Tribunal would be satisfied that the public interest considerations against disclosure of the disputed information are compelling and outweigh those in favour of disclosure. 5. Therefore, the correct and preferable decision is to affirm the respondent's decision dated 20 September 2021.

Applicant's oral submissions 1. The Tribunal asked the applicant why he maintains that the respondent did not conduct reasonable searches. He replied to the effect that no documents were produced by Legal Aid NSW and that there should be further documents from "Monitoring with Advocacy". He also asserted that a new database was not searched, but he did not provide any information regarding this database. 2. Otherwise, the applicant argued that Ms Offner's evidence is not accurate and that she has not given personal knowledge of what happened. He also complained that he should have been given a schedule with respect to the open tender bundle and this was not done.

Consideration

Legal principles 1. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". 2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act 1. In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 1. I am satisfied that the respondent's decision dated 20 September 2021 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act. 2. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below. 3. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 4. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies". 5. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure. 6. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information. 1. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13. 2. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. 1. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech). 2. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (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. 1. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. 1. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world". 2. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru). 3. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of— (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

The Tribunal is not conducting a judicial review 1. While the applicant's submissions addressed "judicial review" at considerable length, the Tribunal is not exercising judicial power in conducting the current review of the decision under s 100 of the GIPA Act.

Reasonable searches 1. The applicant asserts that the respondent has not conducted reasonable searches as required by s 53 of the GIPA Act, for reasons that have been set out at some length in this decision. 2. In my view it is not sufficient for the applicant to merely assert that the respondent's searches were inadequate - he must establish that there are reasonable grounds for believing that further documents exist. 3. The applicant's submissions suggest that it is his belief that the respondent interfered in his affairs after the guardianship order ceased in February 2008, by alleged involvement with Legal Aid NSW and "the Monitoring with Advocacy". Indeed, in his oral submissions, he stated that the respondent should have produced documents from Legal Aid NSW and the "Monitoring with Advocacy. 4. Based on the evidence before me, and particularly the evidence of Ms Offner, which was not seriously challenged on cross-examination, I am satisfied that the respondent was not actively involved in the applicant's affairs after the guardianship order ceased in February 2008. 5. In relation to item b of the GIPA request, I am satisfied that the respondent does not hold any documents from Legal Aid NSW. 6. In relation to items c and d of the GIPA request, I am satisfied on the evidence before me that "Monitoring with Advocacy" is not a department or work area of the respondent. Rather, it is a file designation category that was applied to the applicant's file during a client audit following the cessation of the guardianship order in 2008. Ms Offner stated, and I accept, that this designation was applied in error and that the designation of "discharge" should have been applied. 7. It follows that I am satisfied that the respondent does not hold any documents relating to "Monitoring with Advocacy". 8. I accept Ms Offner's evidence regarding the administrative steps taken by the respondent's search officers with particular regard to the matters addressed in ss 53(2) and (3) of the GIPA Act: Robinson v Commissioner of Police (NSW) 2014] NSWADTAP 73. 9. I note that Ms Offner identified the electronic data systems and platforms on which the respondent holds information and I note that in Walker v Roads and Maritime Services [2019] NSWCATAD 177, the Tribunal identified the principles that are relevant to the consideration of whether reasonable searches have been undertaken as follows (at [58]): a. what constitutes a sufficient search will vary with the circumstances. key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant all those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 (at [30]); b. That they may be weaknesses in an agency's searches or that there are failures in its record keeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 (at [15]); c. The fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities {2014] NSWCATAD 12 (at [28]). 1. Based on the evidence before me, I am satisfied that there are no reasonable grounds for believing that further documents exist that are within the scope of the GIPA request and that the respondent conducted reasonable searches as required by s 53 of the GIPA Act. 2. In relation to the applicant's complaint that he should have been provided with an index of documents provided to him (which are contained in the respondent's open tender bundle), I note that the creation of an index or list of documents sought in the GIPA request has been held to be outside the scope of a GIPA request: Walker v Northern Beaches Council [2021[ NSWCATAD 251 at [107]-[118].

Other disputed information – the Public interest test

Public interest considerations in favour of disclosure - s 12 of the GIPA Act 1. In the decision dated 20 September 2021, respondent identified the following public interest considerations in favour of disclosure as being the general public interest in favour of disclosing government information (s 12(1)) and that the requested information is the applicant's personal information. They decided that the latter was a strong factor in favour of disclosure. 2. The applicant identified further public interest considerations in favour of disclosure under cl 12(2) of the GIPA Act, including: The respondent exploited the applicant to established structures to harm the applicant psychologically and physically to generate a second time guardianship order concerning the applicant to gain benefits. The respondent is acting worse than Hitler (or associate fascist staff) who did not exploit their experiments to gain benefits. Experimented, kill and burn. In the circumstances, disclosure of the information would inform the public about those policies and practices, including whether they are followed, and this in turn would enhance public confidence in the Office of Public Guardian. The disclosure of the information of the applicant would promote open discussion on an issue of public importance, namely the effectiveness of the OPG NSW involved about 47,000 clients every year. It is also the respondent's breach of the privacy of the persons who regain capacity and the Capacity ToolKit improper manner used (misused) any community members any time. It is not respecting the judicial decision. It is not granting a judicial review. This is unfair. 1. However, with respect to the applicant, I do not consider that these "considerations" in favour of disclosure of the disputed information are rational or reasonably based. 2. All in all, I have decided that the public interest considerations in favour of disclosure should be given considerable weight.

Public interest considerations against disclosure – Cll 3(a), 3(b) and 6 of the Table to s 14(2) of the GIPA Act. 1. The respondent decided that there are public interest considerations against its disclosure of unredacted information under cll 3(a) and 3(b) (in relation to the documents contained in Tab 1 of the Confidential Tender Bundle) and cll 3(a), 3(b) and 6 (in relation to the documents contained in Tab 2 of that bundle, and that these considerations outweigh those in favour of providing access to the "personal information" of third parties (non-government employees) and in abrogating the secrecy provision in s 101 of the Guardianship Act by disclosing the disputed information. 2. In relation to the documents contained in Tab 1 of the Confidential Tender Bundle, I have decided that a significant factor weighing against release of the "personal information" is that under s 73, disclosure is effectively "disclosure to the world at large": Shermann v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [14]. 3. There is no evidence before me that the disputed information has previously been publicly disclosed and therefore, release of an unredacted case note would reveal personal information to both the applicant and the world at large. 4. I am satisfied that the public interest considerations under cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act apply and that there is a strong public interest in the respondent fulfilling its obligations under the PPIP Act to protect "personal information". 5. Section 18(1) of the PPIP Act incorporates the information protection principle limiting the disclosure of "personal information" and I am satisfied that none of the exceptions to s 18(1) apply to the disclosure of the "personal information" that has been redacted by the respondent. In my view, these considerations should be given significant weight. 6. In relation to cl 6 of the Table to s 14(2) of the GIPA Act, the respondent relied upon the IPC's findings in the Review Report and argued that generally, the GIPA Act overrides secrecy provisions in other legislation, except for those expressly identified in sch 1: s 11. However, it remains a public interest consideration against disclosure of information where disclosure could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of the provision of any other Act or statutory rule (including of another state or the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. That public interest consideration expressly extends to consideration of the policy underlying the exemption: cl 6(2) of the Table to s 14(2) of the GIPA Act. 7. In this case, I note that the relevant prohibition arises under s 101 of the Guardianship Act, which applies to the respondent. I accept the respondent's argument that this provision reflects the legislative concern to preserve confidentiality over the often sensitive personal and medical circumstances in which a guardian may need to be appointed and take a role in managing an individual's affairs. Significantly, it makes no express exception with respect to the person the subject of any guardianship order which, it is submitted, reflects the fact that it may not always be in the best interest of the subject of the guardianship order to have access to material relating to the imposition and administration of that order, especially where it arises from concerns relating to their psychological health. 8. I accept that in this matter, s 101 of the Guardianship Act operates to ensure that third parties can be comfortable communicating frankly with the PG in the best interests of the subject of the order (and thereby facilitates the functions of the PG) in the knowledge that such information will not typically be disclosed to the subject of the order safe where consent is provided. The fact that significant penalties apply to any contravention of s 101 demonstrates the policy intention that it is to be strictly complied with. 9. Section 101 applies only to information obtained "in connection with the administration or execution" of the Guardianship Act and in this matter, it applies to the documents contained in Tab 1 of the Confidential Tender Bundle records of the PG relating to the guardianship order in 2007-2008). None of the exceptions are applicable in this case. 10. For these reasons, I am satisfied that the considerations against disclosure in cl 6 should be given significant weight. 11. In relation to the documents contained in Tab 2 of the Confidential Tender Bundle, I am satisfied that the public interest considerations against disclosure under cll 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act apply. I repeat my previous reasons.

Conclusive public interest consideration against disclosure 1. I accept the respondent's submission that some of the information sought by the GIPA request was excluded information under s 59 of the GIPA Act, because it was information that was already available to the applicant, namely: (a) information from the former Administrative Decisions Tribunal; (b) information from the Administrative Appeals Tribunal; (c) Information from the Supreme Court of NSW; and (d) information about the former Federal Magistrate's Court. Records relating to proceedings of various courts and tribunals are considered to be excluded information of an agency (judicial and prosecutorial information – sch 2). Therefore, therefore, there is a conclusive presumption of public interest against disclosure of that information.

Balancing the public interest considerations 1. In applying s 13 of the GIPA Act, I have adopted the approach discussed in the decisions including Flack and Hurst, which are discussed previously in this decision. 2. For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those in cll 3(a), 3(b) and 6 of the Table to s 14(2).

Conclusion 1. For the reasons set out above I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 20 September 2021 and I order accordingly.

Order 1. The respondent's decision dated 20 September 2021 is affirmed.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2022