Bulletin 47 - Requests for information from other government agencies

Legal Issues Bulletin 47 - Requests for information from other government agencies

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Schools receive requests for information from a variety of State and Commonwealth government agencies. This bulletin provides advice on the more common types of request.

This Bulletin does not provide advice on what to do if served with a subpoena. For further information on how to respond to a subpoena, refer to Legal issues bulletin 23. - Protected Confidences in Relation to School Counsellor Files Concerning Victims of Sexual Assault – update and Legal Issues bulletin  25 - Subpoenas

Requests by Family & Community Services

Can the department be required to provide information?

Yes, by a request is known as a “section 248 notice”.

What is a section 248 notice?

Section 248 of the Children and Young Persons (Care and Protection) Act 1998(the Act) empowers the Director General of FaCS (or delegate) to obtain information relating to the safety, welfare and well-being of a particular child or class of children or young persons from a prescribed body. “Prescribed body” includes a school or government agency, such as the department.

Section 248 also empowers the Director-General of FaCS to provide prescribed bodies with the same type of information.

What if FaCS provides a section 248 notice?

While all section 248 notices should be in writing, the initial contact could be by telephone from an officer of FaCS. If telephone contact is made, the officer from FaCS should be asked to provide a section 248 notice. The section 248 notice may be faxed, emailed, posted or delivered personally. A section 248 notice requires a school or the department to provide the information requested, including information provided to the school by other persons (such as parents or students). This includes information in mandatory reports about children at risk of harm.

What information can be sought under a section 248 notice?

The notice will generally contain a request for information about a child or young person who FaCS believes is, or has been, at a government school. The information sought can be specific in nature (e.g. contact details, which school or schools the child or young person has attended, information about academic or social progress) or can be more generalised. The request for information can be in the form of questions that need to be answered by the school staff. What do I do if I receive a section 248 notice?

You should keep a record of the time and date the section 248 notice was received. Action must be taken to locate any documentation which may be relevant to the information sought in the section 248 notice. If no relevant documentation exists, it may be necessary to speak with various members of staff to ascertain if they can provide any information relevant to the notice based on their working knowledge. If staff can provide information, a record of your conversation with the staff member should be made. If the notice seeks the answers to specific questions, a response should be made to each separate question.

A written response to the notice should be sent as soon as possible back to the specific FaCS office from which the notice was sent. This may be done electronically. Any response sent should make it clear that you are responding to the section 248 notice.

A copy of the information provided and the section 248 notice, together with a record of the communication should be retained on file at the school under the name of the child or young person who was the subject of the section 248 notice. Make a specific note of the date and time the information was provided to FaCS.

Can I provide information without the student’s consent?

Yes. Providing information under section 248 in good faith and with reasonable care is not a breach of professional ethics, standards of professional conduct, or privacy laws and does not carry liability for defamation or constitute grounds for civil action.

Does a response have to be sent within a specific time period?

It is a requirement of the Act that the request for information be complied with promptly. There may be a specified timeframe for complying within the notice but if not, staff need to ensure the notice is treated as urgent and a response is sent as a matter of priority.

What if there is no information available that is relevant?

If there is no information at the school about the matters referred to in the notice, you must advise the relevant Community Services office of this immediately.

Requests by government agencies under chapter 16A

What is a request under Chapter 16A of the Act?

Chapter 16A of the Act is concerned with the exchange of information between agencies that have responsibilities relating to the safety, welfare or well-being of children and young people. Staff should refer to Legal bulletin 50 – Exchanging Information with Other Organisations Concerning the Safety, Welfare or Wellbeing of Children or Young People for further information.

Requests by Families, Housing, Community Services and Indigenous Affairs

Does Centrelink have the power to obtain information?

Yes. Section 192 of the Commonwealth Act empowers the department of Families, Housing, Community Services and Indigenous Affairs (administered by Centrelink) to seek information or documentation to help determine whether a person is entitled to receive social security payments or other benefits (for example concession cards or financial supplements). A notice to produce can be directed to principals.

The request to provide information must be in writing and can be given personally (which includes being faxed or emailed) or posted. The notice will generally indicate the following:

  • How the information or document is to be provided to Centrelink
  • When the information or document is to be provided. The period of time allowed must be at least 14 days after the date of the notice
  • The officer (if any) at Centrelink to whom the information or document is to be given

Centrelink can also require a person to provide the information sought by appearing before a specified officer to answer questions. While this power exists, it rarely, if ever, is directed towards departmental staff.

What can happen if I don’t comply with the notice?

It is an offence to fail to comply with the requirement to give information or produce a document. The maximum penalty is 12 months imprisonment.

Requests by the Commonwealth Department of Immigration

What powers does Immigration have to obtain information?

The Commonwealth Minister for Immigration (or delegate) can seek information if it is believed a person (e.g. a principal) is able to provide information or documentation which is relevant to ascertaining the identity or whereabouts of a person believed to be an unlawful non-citizen.

A notice to produce under the Commonwealth Migration Act (section 18 notice) requires the person served to provide information and/or documents to the Minister within a specified period.

What can happen if I don’t comply with the notice?

Failure to comply with a section 18 notice is an offence punishable by imprisonment for a period of up to 6 months.

Requests for information by the NSW Ombudsman

What powers does the Ombudsman have to obtain information?

When conducting an investigation, section 18 of the Ombudsman Act empowers the Ombudsman to require a public authority (which includes a principal) to:

  • give the Ombudsman a statement of information, or
  • produce to the Ombudsman any document or other thing, or
  • give the Ombudsman a copy of any document.

A request by the Ombudsman under section 18 must be in writing, must specify or describe the information, document or thing required, and give a time and place for compliance.

When conducting an investigation, the Ombudsman also has powers under Section 20 of the Ombudsman Act to:

  • enter and inspect any premises occupied or used by a public authority, and
  • inspect any document or thing in or on the premises.

Location Orders

Can a court dealing with family law proceedings get information?

A location order is an order made by a court under section 67M(2) of the Family Law Act, requiring the recipient to provide information about a child’s location. Any court may issue such an order, not only the Family Court. Location orders are often directed to several different entities such as Centrelink and Telstra.

How do I comply?

Location orders are commonly served on the department centrally, but there is nothing to preclude an order being served directly on a principal.

A reply should be sent to the Registrar of the issuing court identifying the subject child’s current residential address and named guardians. If they are no longer attending the school, it should be noted when they last attended and whether there was any indication of where they were going, such as a forwarding address or that another school has requested their records.

Confidentiality

Location orders are subject to confidentiality provisions and should not be discussed with more staff than is necessary, and under no circumstances should they be discussed with the parents or caregivers of the subject child. Penalties apply for unlawful disclosure.

Requests from other government agencies

There may be requests for information received from other government agencies which rely on specific legislation – for example, the Australian Taxation Office, the Environmental Protection Authority and the Independent Commission Against Corruption. If principals have questions about answering requests from other government agencies, they should contact Legal Services for assistance.

In all cases, the government agency requesting information should clearly detail the source of their power to make the request and the person responsible for fulfilling the information requested needs to confirm the identity of the person requesting the information. If there is any doubt at all about the agency’s right to receive the information and this department’s obligation to give it, further clarification and/or advice should be sought.

What happens if I won’t have time to comply with a notice?

On some occasions the agency requesting the information may indicate that it is for very urgent and important reasons – for example, the life or safety of a person may be at stake. In such cases, it is vital to ensure that you bring adequate resources to comply as soon as possible. It may be necessary to contact your Region to assist you.

In other cases, if you have difficulty complying with the timeline, you should contact the agency and seek to negotiate an extension of time. Even if a deadline has unavoidably passed it is still important to provide the information as soon as possible.

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