Acheson v University of New England

[2013] NSWADT 176

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Acheson v University of New England [2013] NSWADT 176

Hearing dates:

On the papers

Decision date:

01 August 2013

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1. The decision under review is set aside.

2. The decision is made that the information in issue is to be released subject to the redaction referred to at paragraph [21] of these reasons.

Catchwords:

government information - personal information - personal factors of application - false or unsubstantiated allegations about a person that are defamatory

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009

Category:

Principal judgment

Parties:

Eric Acheson (Applicant)
University of New England (Respondent)

Representation:

E Acheson (Applicant in person)
A McAlary (Respondent)
N Case (Information Commissioner)

File Number(s):

123218

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant is an official of the National Tertiary Education Union (NTEU). He lodged an access application under the Government Information (Public Access) Act 2009 ("the GIPA Act"). He is acting in his capacity as on official of the NTEU in order to assist a colleague and NTEU member, Ms Gina Butler. His access application sought access to documents between the University of New England ("the University") Faculty of Arts & Sciences and the University's Human Resource Services in relation to the reclassification of the School of Humanities Administrative Assistant position.

1. The access application sought:

"Copies of correspondence between the Faculty of Arts and Sciences and Human Resource Services in relation to an application lodged by the School of Humanities in November 2009 for the reclassification of a HEO level 4 position to a HEO level 5 position, the timeframe for this correspondence being November 2009 until the present".

1. Ms Butler was the subject of the reclassification application to which the access application relates.

1. The University's GIPA Access Officer, Dr Carmel O'Brien, determined the access application. She identified a number of documents as falling within the scope of the request and those documents are described in a schedule to her determination. She determined to refuse access to most of the documents. The refusal was on the basis that there were public interest consideration against disclosure pursuant to Items 1(e) and 3(e) of the table to section 14 of the GIPA Act.

1. The table to section 14 of the GIPA Act relevantly provides:

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

...

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

...

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

1. The University subsequently released further material. Only a single document remains in dispute. The University has not provided a copy of that document to the Tribunal however a document filed by the University sets out the information that is in issue. The Applicant has been given a copy of the filed document that excludes that information. As I understand it, a single paragraph in the withheld document remains in issue. That paragraph contains comments that refer to Ms Butler ("the comments").

1. The University maintains that there is a public interest consideration against disclosure pursuant to Item 3(e) of the table to section 14 of the GIPA Act. Dr O'Brien's determination indicates that the comments are unsubstantiated and could be regarded as defamatory. The University subsequently confirmed that Ms Butler was the subject of those comments.

1. The comments refer to a third party's opinion about Ms Butler. The third party apparently provided the information in the context of a recruitment process in which Ms Butler was a candidate.

1. At a planning meeting before the Tribunal the Applicant requested that he be given a redacted version of the document in which Ms Butler's name is redacted. The University resisted that request on the basis that when considered together with other material such as the access application, previous correspondence between the parties and the information previously released to the Applicant in relation to this matter, Ms Butler's identity may still be revealed

1. The University submitted that there is a public interest consideration against disclosure of the excluded comments under Item (3)(e) of the table to section 14 of the GIPA Act because the only likely outcome of releasing the excluded comments would be injury to Ms Butler's reputation and also to put the person attributed the hearsay comment in a difficult position, noting they were not the author of the document in question.

1. A further significant issue is that the relevant information relates to Ms Butler and not to the Applicant. However, it is common ground that the Applicant brought the access application to assist Ms Butler. Had Ms Butler brought the access application herself, a different determination may have been made.

1. Ms Case provided detailed submissions on behalf of the Information Commissioner in which she addressed the issue of release of information to a "representative" applicant.

1. Ms Case submitted that in circumstances where the Applicant is not the subject of the comments, but is acting on behalf of Ms Butler, section 55 of the GIPA Act still allows the relationship between the Applicant and Ms Butler, and therefore Ms Butler's motives, to be taken into account as a consideration in favour of disclosure.

1. If the University or the Tribunal were in doubt about the Applicant's relationship with Ms Butler, section 54 of the GIPA Act requires consultation with Ms Butler.

1. Sections 54 and 55 of the GIPA Act provide:

54 Consultation on public interest considerations

(1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that:

(a) the information is of a kind that requires consultation under this section, and

(b) the person may reasonably be expected to have concerns about the disclosure of the information, and

(c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

(2) Information relating to a person is of a kind that requires consultation under this section if the information:

(a) includes personal information about the person, or

(b) concerns the person's business, commercial, professional or financial interests, or

(c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or

(d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government).

Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4.

(2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements:

(a) that information concerning the application will be included in the agency's disclosure log and that the person can object to this,

(b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection.

(3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased.

(4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection.

(5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information.

(6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending.

(7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending.

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.

(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity.

(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

1. The Applicant explained his relationship with Ms Butler in the following terms:

... I am a case handler for the NTEU. The Executive of the local branch assigns cases to me. I am not approached directly by members to act on their behalf, nor did Mrs Butler approach me (though she is well aware that I have carriage of the case, and she and I have had many meetings regarding the matter). Although, as the quoted paragraph from my letter to the OIC (21 October 2011) makes clear, my GIPA application was lodged on behalf of the NTEU, this should not and does not imply that I was not acting in the interests of Mrs Butler. The NTEU is a collective that acts on behalf of its members, and Mrs Butler is a member of that collective.

1. It is my understanding that the University understood this to be the nature of the relationship.

1. I accept that the Applicant's relationship with Ms Butler explains his motives for making the access application. This is relevant to a determination of whether there is an overriding public interest against disclosure of information: section 55(1) of the GIPA Act.

1. In the circumstances it is my view that the disclosure of the information to the Applicant is comparable to disclosure of the information to Ms Butler.

1. I have considered that content of the withheld information. I agree with the arguments presented by each of the parties in favour of the disclosure of the information. However, I also agree that the information concerning the identity of the person to whom the comment is attributed should not be disclosed. That person was not the author of the information in issue and their involvement has not been substantiated. The reference is potentially defamatory. On balance, it is my view that their name should not be disclosed pursuant to Item (3)(e) of the table to section 14 of the GIPA Act.

1. In the circumstances, the appropriate order is that the information that is in issue should be releases with the exception that the information should be redacted to remove the name of the person to whom the comment is attributed.

Order

1. The decision under review is set aside.

2. The decision is made that the information in issue is to be released subject to the redaction referred to at paragraph [21] of these reasons.

**********

Decision last updated: 07 August 2013