The effective administration of justice requires that regulators and governing entities be held accountable for the decisions they make. A lack of appropriate accountability mechanisms for these types of entities can often lead to decisions being made without proper regard for consequences or due process – which itself leads to potentially unfair or unjust outcomes for those impacted by the decision.
As a step to reinforcing accountability and decision-making transparency for powerful government entities, back in 2009 the Queensland Government passed the Right to Information Act 2009 (Qld) (“RTI Act”). This Act enabled ordinary Queenslanders to access information and documents held by the Government or Government entities/regulators where both the Applicant and the information or documents they sought met particular requirements.
However, the rights to receive information under the RTI Act are not limitless – with the Government entity being able to refuse to disclose information where that information:
- was classified as “exempt information” under the RTI Act; or
- should not be disclosed as it would not be in the public interest to disclose the information.
Fast-forward to the middle of 2021 – when a crucial decision was made regarding the rights of an individual to access information from the Non-State Schools Accreditation Board (“NSSAB”).
The Facts
An undisclosed Applicant had requested that NSSAB, under the provisions of the RTI Act, provide the Applicant with specific information pertaining to a complaint that the Applicant had previously made against an Independent School (the “School”) which related to bullying allegations.
The Queensland Department of Education (“the Department”) processed the Applicant’s request and granted the Applicant access to 390 pages of information. However, the Applicant was denied access to 15 pages of material (the “15 pages”). The 15 pages contained records of correspondence between NSSAB and the School regarding they Applicant’s bullying complaint; an old school policy (which had since been superseded); and an unsigned letter sent by the School and addressed to the Applicant.
The Department maintained that the 15 pages were classified as “exempt information – or alternatively, that it would not be in the public interest to have the pages disclosed. The Applicant appealed to the Office of the Information Commissioner (“OIC”) to have the documents disclosed.
The Issues
The OIC had to consider:
- whether the 15 pages could be classified as “exempt information”; and/or
- whether it would, after balancing the relevant factors, be against public policy for the 15 pages to be disclosed.
If the Department of Education could prove that the 15 pages fell into either of these two categories, then the Department of Education could refuse to disclose that information to the Applicant.
The Outcome
The OIC determined that the 15 pages were not exempt information, nor would their disclosure to the Applicant be contrary to the public interest. Therefore, the Department could not refuse to disclose the information to the Applicant under the RTI Act.
The Breakdown
“Exempt Information”
The Department firstly argued that the information was exempt because disclosing the information would open up the Department to an action for breach of confidence – especially since the School had previously objected to the information in dispute being disclosed by the Department to the Applicant. However, making this argument successfully required the Department to prove that the information and surrounding circumstances satisfied the elements of an actual or potential breach of confidence.
The OIC firstly indicated that the information in dispute did not have the “necessary quality of confidence” to be considered “confidential information”, noting:
- there were no markings of “confidential” on the NSSAB/School communications;
- the school policy was publicly available on the School’s website at the time the Applicant made the original complaint against the school; and
- the substance of the NSSAB/School letters related to a complaint that had itself attracted public attention (from the media and as a result of multiple legal proceedings).
Additionally, the OIC held that the information was not “received [by the Department or School] in circumstances importing an obligation of confidence”. The Department tried to argue that because the School objected to disclosure and because the information in dispute was provided to NSSAB under the provisions of the Education (Accreditation of Non-State Schools) Act 2017 (Qld) and its regulations, the School was under the impression that the information/communications it provided NSSAB would be kept confidential. However, the OIC found the Department failed to provide enough evidence to substantiate this argument – nor did the Department properly justify why the letters sent by the Board to the School should be afforded a similar expectation of confidence.
“Public Interest”
The OIC then considered whether, on the balance, it would be contrary to the public interest to disclose the information in dispute to the Applicant.
The OIC identified that it was in the public interest:
- to reveal how NSSAB handled complaints relating to child safety and welfare in NSSAB-regulated schools, and for the public to know how NSSAB communicates with non-state schools regarding handling such complaints. Furthermore, that it was in the public interest to encourage further public debate on this issue;
- to expose information that the Board used as context, and that grounded their decision, to take no further action on the Applicant’s complaint; and
- to elevate the level of accountability NSSAB would bear with respect to how it handles complaints – especially because the education of children was involved.
The OIC then weighed these factors with those factors that favoured non-disclosure:
- Whilst the Department alleged that disclosure might damage the School’s reputation, its profitability, organisational culture, its ability to challenge competitors and/or its other commercial affairs, the OIC determined that any likely damage would only be minimal – since the complaint had already had media and court attention and the information in issue’s age was not recent (approximately 8 years).
- The OIC rejected the Department’s allegations that disclosure might expose the School and/or the former Principal to the harm of unsubstantiated allegations, since the information did not specifically identify any particular individual or outline the complaint in much detail, and therefore any harm that potentially arose would only be minimal.
- Since the School provided the information in dispute to NSSAB as a response to NSSAB’s request lawfully made under a regulatory framework, the risk of NSSAB not being able to obtain confidential information from other schools in future as a result of this disclosure was likely to be low.
The OIC placed greater weight on bolstering NSSAB’s obligations of accountability and transparency, and saw any potential harm to the School’s business viability and reputation or the Department’s ability to obtain confidential information as being only minute. Therefore, disclosure of the 15 pages was not contrary to the public interest.
Lessons learned in dealing with the NSSAB
This case has emphasised that non-State schools regulated by NSSAB should be extremely careful in how they seek guidance from NSSAB on critical issues or how they respond to NSSAB’s requests for information. Whilst the school has legal duties to comply with NSSAB’s lawful requests, this case has reinforced that information disclosed to NSSAB may become available to the ever-scrutinising eye of the public at any time.
What Should Schools Consider when dealing with the NSSAB?
If you are a person looking to understand their rights to receive information from government departments, or you are a school looking to further understand your obligations to NSSAB, Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Jackson Litzow
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
