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Responding to information requests or directions (Chapter 16A and section 248)
What sort of information can be requested or provided under Chapter 16A and Section 248?
A prescribed body may request information from another prescribed body or Community Services may direct the provision of information (already held by an organisation) on the following:
- a child or young person’s history or circumstances
- a parent or other family member
- any person/s having a significant or relevant relationship with a child or young person
- the facts surrounding whether a person poses a risk to the safety, welfare or wellbeing of a child or young person
- the organisation’s dealings with the child or young person, including past support or service arrangements subject to the exemptions set out in section 245D(4) of the Act and the outcomes of these dealings.
Information can only be shared under Chapter 16A if it is:
- related to the safety, welfare or wellbeing of a child or young person or class of children or young persons (in compliance with legislation).
Information can only be shared under section 248 if it is:
- related to the safety, welfare and well-beingof a particular child or young person or class of children or young persons.
Organisations can only request information that already exists. They cannot require an organisation to collect new information, or to undertake a separate assessment and report, to meet the information request or direction. The providing organisation is responsible for decisions about what information is relevant to the request but needs to make these decisions in accordance with the criteria set out in the Act.
It is important to note that information that has been received under Chapter 16A can then be requested and provided under Chapter 16A to a different organisation at a later date.
For example, the Department of Education and Communities (DEC) may receive information, requested under Chapter 16A from NSW Health about a particular child. If DEC subsequently receives a Chapter 16A request from NSW Police about that child, provided there were no grounds to decline the NSW Police request and the information fell within the scope of Chapter 16A, DEC would be obliged to share the information it received from NSW Health.
However, organisations should always consider the relevance of the information they hold and may advise the requester that they are likely to get more complete and up-to-date information by directly contacting the original source of the information.
Background to requests or directions for information
When requesting information under Chapter 16A, or when Community Services directs the provision of information under section 248, the organisation should:
- identify the subject of the information request/direction and, if it is not the child or young person, identify the subject’s relationship to the child or young person (particular identifying information should be provided so that organisations can be sure that they are talking about the same person)
- explain how the request for information relates to the safety, welfare or wellbeing of the child or young person (for requests under Chapter 16A)
- explain how the direction for information relates to the safety, welfare and well-being of the child or young person or class of children or young persons (for directions under section 248)
- explain why the information will assist it to make a decision, assessment or plan, or to initiate or conduct an investigation, or to provide any service, or to manage any risk to the child or young person (for requests under Chapter 16A)
- provide a sufficient level of detail to assist the other organisation to understand the purpose of the request and to locate the relevant information in an efficient manner
- provide background to the request/direction, including whether or not consent has been obtained and/or the organisation has informed a child, young person and/or family member that the information has been sought and if not, why not (for example, where there are safety concerns)
- indicate the time period for which the information is sought (e.g. for the last six months, three years) and the type of information sought
- provide a realistic time frame for the organisation to provide the information noting that communicating/negotiating a due date is best practice as it promotes collaboration and can ensure urgent matters are prioritised (unless the information is required for court proceedings where a more limited time frame may be required)
- preferably contact the providing organisation by phone before making the request to discuss needs and ensure the request is well targeted that is, ask for the relevant information and avoid requesting all files/documents.
Should information be exchanged verbally or in writing?
Information must be requested and provided in a secure way. Each organisation will have its own procedures as to how information is given or received. Some organisations may also have agreements in place outlining how information will be exchanged with other organisations, e.g. a memorandum of understanding.
There may also be organisational delegations determining who can approve the release of information. Workers should familiarise themselves with relevant documents and practices to ensure information is exchanged in accordance with policies and procedures.
Information requests and responses can be oral or in writing, via hard copy or email. However, in most circumstances it is best practice to communicate with the receiving organisation prior to drafting a request.
Standard forms and letters to communicate with other organisations can be used, citing the relevant sections of the Act that apply to the sharing of information in particular cases. A separate form or letter should be used to request information for each person or class of children or young persons.
Given the consequences of acting outside the protections offered by Chapter 16A, a written record of the exchange should be made and stored on file in a way that is consistent with the State Records Act 1998.
Alternatively, information can be shared over the phone, or in person. In cases where information is requested or provided orally, it is expected that there will be an established local arrangement between workers. Where information is exchanged orally, each organisation should ensure that there is a concise written record kept of the details of the exchange.
If an organisation has any doubt about the identity of a person requesting information orally on behalf of an organisation, they should confirm their identity by contacting the organisation before providing the information, or ask that the request be put in writing.
While formal records should be kept of requests for information, it may be necessary for a requesting and receiving organisation to communicate informally about the request perhaps to clarify what is requested or what is relevant.
A common example of oral exchange of information would be at an interagency meeting. In these circumstances the record of the meeting would form the record of information exchange, subject to it being circulated on a confidential basis.
Public access to government information
The Government Information (Public Access) Act 2009 (GIPA), which replaced the Freedom of Information Act 1989, governs public access to government information and focuses the legislative onus in favour of the release of government information through consideration of the public’s best interest. GIPA will not affect how information is exchanged under section 248 or Chapter 16A.
Information for court proceedings
When child protection matters proceed to the Children’s Court there are specific procedural arrangements that apply to information collection.
Where information provided to Community Services under Chapter 16A or section 248 is required by the Children's Court, Community Services policy is to seek the consent of the organisation which provided the information for its inclusion in materials provided to the Court. Government agencies are currently discussing the operation of this policy.
Where criminal proceedings have been initiated organisations should be mindful that if the prosecution relies upon information contained in organisation records there is an obligation on the prosecution to disclose to the defence the existence of that information. In practice, this can mean that a record of an interview or an assessment report is potentially available to the accused through their legal representative.
Issues of this nature that arise in a specific case should be discussed with the Office of the Director of Public Prosecutions or the Police Prosecutor with responsibility for that case.
When Community Services has obtained information under section 248 or Chapter 16A and then receives a subpoena to produce documents, if the information obtained under Chapter 16A or section 248 falls within the scope of the subpoena Community Services must produce the documents.
However, Community Services will advise the provider organisation of this production. The organisation could then appear at court and object to the parties to the proceedings accessing the material (in part or entirely) or make other requests in relation to the documents.
Cross border information exchange
At present, only Community Services can lawfully provide information about children and young people to other states and territories. Where Community Services is aware that a child or young person is alleged to be at risk of significant harm and that child or young person resides in, or receives services from, another state or territory, Community Services provides relevant information to the counterpart statutory child protection agency in that state or territory.
At present, other prescribed bodies in NSW cannot lawfully provide such information to agencies in other states and territories and the Department of Premier and Cabinet is exploring options to resolve this issue.
Other information exchange arrangements
In addition to Community Services, there are other statutory agencies that can direct that information be provided about individuals or classes of persons. Certain prescribed bodies have a duty to comply with these requests and should do so according to the relevant law and organisational policies and procedures. A written request identifying the legislative powers relied upon is a requirement.
Some examples of directions for the provision of information are detailed below.
The NSW Police Force can make a written request to government agencies for any information that is relevant to the assessment of the risk posed by a registrable person to the lives or sexual safety of children, under Section 16 of the Child Protection (Offenders Prohibition Orders) Act 2004. Agencies are obliged to provide this information unless it is subject to legal or other professional privilege.
Where search warrants or subpoenas have been issued by a court, organisations must comply with the terms of the warrant or subpoena.
The Children’s Guardian has the power to direct Community Services, designated agencies and authorised carers to provide information relating to the safety, welfare and wellbeing of a particular child or young person or class of children or young persons. Further information is available at section 185 of the Act, on information exchange arrangements with the Children’s Guardian.
The NSW Ombudsman can obtain information under the Ombudsman’s general powers related to proposed and current investigations. More information is available at: www.ombo.nsw.gov.au
The Office of the Children's Guardian and other approved screening agencies can request information when undertaking a Working With Children Check, which can include relevant employment proceedings. More information is available at: http://www.kidsguardian.nsw.gov.au/working-with-children/working-with-children-check
The Health Care Complaints Commission is an independent body which acts to protect public health and safety by dealing with complaints about health service providers in NSW. The Commission has the power to obtain information and/or documents (including medical records) from any person to help it in assessing complaints about health service providers. More information is available at: www.hccc.nsw.gov.au/Home/default.aspx
Child Death Review Team – There are provisions under the Commission for Children and Young People Act 1998 for the exchange of information about children and young people who have died.
Commonwealth Government and Community Services - Under the National Framework for Protecting Australia’s Children 2009-2020, the Council of Australian Governments (COAG) agreed to the development of new Commonwealth-State measures to improve information sharing about children, young people and families at risk. Under these arrangements, Community Services is able to access certain information held by Commonwealth agencies while complying with Commonwealth privacy legislation.
An Information Sharing Protocol between the Commonwealth and Child Protection Agencies January 2009 outlines how the Commonwealth and statutory child protection agencies can share information in order to provide more responsive care and protection services.
It is underpinned by a separate appendix for each Commonwealth Agency joining the Protocol. Appendix One relates to Centrelink, which became operational in NSW from 1 March 2009. Appendix Two relates to Medicare, and became operational in NSW from 1 November 2009. Extending the Protocol to encompass the Child Support Agency, the Family Court and the Department of Immigration and Citizenship is scheduled for future development.
Further information on Protecting Children is Everyone’s Business – National Framework for Protecting Australia’s Children 2009-2020 can be found online at the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs web site: https://www.dss.gov.au/sites/default/files/documents/pac_annual_rpt_0.pdf
- Letter for providing information under Chapter 16A
- Checklist for providing information or responding to a Chapter 16A information request
- Letter requesting information under Chapter 16A
- Checklist for requesting information under Chapter 16A
- Letter agreeing to a Chapter 16A request
- Letter declining a Chapter 16A request
- Checklist for receiving information under Chapter 16A