Alexander v University of Sydney

[2008] NSWADT 214

CITATION:

Alexander v University of Sydney and anor [2008] NSWADT 214

DIVISION:

General Division

PARTIES:

APPLICANT
Harriet Gretchen Alexander

FIRST RESPONDENT
University of Sydney

SECOND RESPONDENT
Kim Walker

FILE NUMBER:

073325

HEARING DATES:

27 March 2008, 21 April 2008

SUBMISSIONS CLOSED:

21 April 2008

 
DATE OF DECISION: 

5 August 2008

BEFORE:

Higgins S - Judicial Member

CATCHWORDS:

Access to documents – confidential material, internal working documents, operations of agencies, legal professional privilege, and personal affairs

MATTER FOR DECISION:

Principal matter

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:

Cianfrano v Director-General, Premiers Department [2007] NSWADT 216
Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606
Director-General, Department of Education & Training v Mullet and anor (GD) [2002] NSWADTAP 13
Harris v Australian Broadcasting Tribunal (1983) 78 FLR 236
Keriakes v State Rail Authority of NSW [2003] NSWADT 191
Re B and Brisbane North Regional Health Authority ((1994) 1 QAR279 at 341)
Pope and Queensland Health [1994] QICmr 16 (18 July 1994) (1994) 1 QAR 616
Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214
Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266
University of NSW v McGuirk [2006] NSWSC 1362

REPRESENTATION:

APPLICANT
G Noonan. agent

FIRST RESPONDENT
J Oakley, barrister

SECOND RESPONDENT
M Allars, barrister

ORDERS:

The decision of the University is affirmed on the grounds set out in these reasons for decision.

REASONS FOR DECISION

INTRODUCTION

1 This is an application by Harriet Gretchen Alexander (‘Ms Alexander’), a journalist with the Sydney Morning Herald, seeking review of a decision of the University of Sydney (‘the University’) pursuant to the Freedom of Information Act 1989 (‘the FOI Act’), to refuse her access to a report she had sought access to under that Act. The report in question is a report, dated 6 September 2007, by Anthony Britt, barrister, (‘Mr Britt’s report’) concerning allegations of plagiarism made against Professor Kim Walker (‘Professor Walker’), the Dean of the Sydney Conservatorium of Music. Mr Britt prepared the report on the instructions of the senior solicitor of the University. It would appear that Professor Walker was suspended, for a short period after the allegations were made, from her duties as Dean. On 17 September 2007, the University issued a press release announcing that Professor Walker would ‘resume her normal duties’. The press release made no mention of the allegations or Mr Britt’s report.

2 In a letter, dated 19 September 2007, from Mr O’Brien, solicitor for Professor Walker, to the Editor of the Sydney Morning Herald, Mr O’Brien informed the Editor that the allegations had been fully investigated by the University and were found to have been ‘completely unsubstantiated’. On 21 September 2007, Mr O’Brien sent an email to Ms Alexander in which he provided similar advice. However, it was not until 10 December 2007 that the University issued a press release in regard to the investigation. In that press release the University said:

‘Several formal allegations concerning Professor Walker were raised and fully investigated by the University. The University determined that one of those allegations in respect of inadvertent but inaccurate references and footnotes was resolved following the spontaneous and unprompted action of Professor Walker concerning an article in Music Forum. No other allegation was substantiated.’
3 The investigation referred to in the above press release is an investigation conducted by Mr Britt, on the instructions of the University. Mr Britt’s report is the document he forwarded to the University at the conclusion of his investigations.

BACKGROUND

4 The University determined, originally and on review, that Mr Britt’s report was an exempt document as it contained matter falling within clause 6 of Schedule 1 of the FOI Act (that is, report contained matter the disclosure of which would be an unreasonable disclosure of information concerning the personal affairs of a person other than the FOI applicant).

5 When the matter first came before the Tribunal, the University argued that the Report was also exempt on the grounds that it contained matter to which legal professional privilege attached and was therefore exempt under clause 10 of Schedule 1 of the FOI Act. At the hearing of the matter, the University pressed this latter ground and four further grounds of exemption; namely that the report contained:

a. confidential material (see. clause 13(b) of Schedule 1 of the FOI Act );

b. matter relating to the internal working of the University (see clause 9(1) of Schedule 1 of the FOI Act);

c. information concerning professional affairs of Professor Walker (that is, clause 7(1)(c) of Schedule 1 of the FOI Act ); and

d. information concerning the operation of the University (that is, clause 16(a)(iii) of Schedule 1 of the FOI Act).

6 On her application, Professor Walker, was joined as a party to the proceedings on 27 March 2008. At the hearing, Professor Walker argued that the report was exempt on the grounds set out in clause 6 (that is, the personal affairs exemption), clause 7(1)(c) (that is, information concerning professional affairs of a person), clause 13(b) (that is, information obtained in confidence) and clause 16 (that is, information concerning the operation of an agency) of Schedule 1 of the FOI Act .

7 The essence of the Applicant’s argument was that given the history surrounding the report the public interest lay in the disclosure of the document. The Applicant’s argument is set out more fully below.

ISSUES

8 The onus is on the University to establish, on the balance of probabilities, that its determination is justified (see section 61 of the FOI Act). That is, the onus is on the University to prove:

a. that the report contained matter/information which is exempt in its entirety, or in part, under one or more of the grounds relied on; and

b. in the event the exemption is established, whether the correct and preferred decision is to refuse Ms Alexander access to the document. This is often referred to as the override discretion: see University of NSW v McGuirk [2006] NSWSC 1362.

9 The role and extent of the role of Professor Walker in these proceedings was also raised as an issue. It is convenient to deal with this issue before dealing with the substantive issues.

ROLE OF PROFESSOR WALKER

10 On her application, Professor Walker, was joined as a respondent to these proceedings pursuant to section 67(4) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) as her interests were arguably affected by the decision of the University for which Ms Alexander had sought review.

11 Professor Walker was not an applicant by reason of section 53(3)(b) of the FOI Act. That section gives persons, other than the FOI applicant (that is, a third party), a right to bring an application for review of a decision of a respondent agency under the FOI Act, where the document to which the decision relates is a document that contains matter/information in respect of which the agency had a duty to consult the third party by reason of the consultation provisions in Division 2 of Part 3 of the FOI Act (that is, documents affecting intergovernmental relations, personal affairs, business and/or professional affairs, and the conduct of research). These consultation provisions are relevant to the exemptions contained in Part 2 of Schedule 1 of the FOI Act, where the information in the document for which access is sought contains matter/information about the personal, or business or professional affairs of the third party.

12 In this application the University did consult Professor Walker in so far as the report contained matter/information involving her personal affairs. However, at no time had the University determined to grant Ms Alexander access to Mr Britt’s report and as a consequence, Professor Walker was not an ‘aggrieved person’ for the purposes of section 53(3)(d) of the FOI Act. Accordingly, Professor Walker’s right to make an application for external review did not arise.

13 At the same time, as the decision of the University was the subject of review, a decision to set aside the decision of the University and grant Ms Alexander access to Mr Britt’s report, is clearly a matter in which Professor Walker has an interest as the report concerns allegations made against her personally.

14 Having established this interest and being joined as a party, Ms Allars, on behalf of Professor Walker, argued that Professor Walker was thereby a party to the proceedings for all purposes and was not restricted to giving evidence and making submissions on the exemptions contained in Part 2 of Schedule 1 of the FOI Act. That is, she was able to give evidence and make submissions on any applicable exemption in Schedule 1 of the FOI Act. In my opinion, the joinder of Professor Walker as a respondent does not extend so far. Her joinder should be limited to the relevant exemptions in Part 2 of Schedule 1 of the FOI Act and any other exemption on which Professor Walker is able to give relevant evidence. In this application, the relevant Part 2 of Schedule 1 exemptions raised by Professor Walker are those contained in clause 6 (that is, personal affairs exemption) and clause 7 (that is, professional affairs exemption. The other relevant exemption on which Professor Walker is able to give evidence is that contained in clause 13(b) (that is, information obtained in confidence). In my opinion, this is the extent to which Professor Walker’s role as a respondent is relevant to the matter in issue in this application. That is, this is the extent to which Professor Walker’s interests under the FOI Act are relevant to the matters in issue.

15 In my opinion, to extend the role of a third party beyond those provisions of the FOI Act in which the third party has a direct interest, or can give relevant evidence of would be contrary to the objectives of that Act and also has the potential to unnecessarily complicate and protract the proceedings.

16 I am also of the opinion that where a third party, such as Professor Walker, is joined as a respondent the onus as set out in section 61 of the FOI Act remains on the respondent agency and does not shift to the joined third party.

THE EXEMPTIONS

17 As indicated in paragraph [7] above, where the respondent agency satisfies the Tribunal that a document for which access has been refused is exempt on one of the grounds of exemption relied on by the agency, then this will be sufficient to dispose of the application, subject to the override discretion. That is, where the Tribunal makes such a finding and determines not to exercise the override discretion and grant the FOI applicant access to the document. it is not necessary for the Tribunal to go on and make findings in regard to each exemption that has been claimed.

18 In my opinion, for the reasons set out below, in this application, the University has produced sufficient evidence to establish that Mr Britt’s report is exempt under clause 13(b) of Schedule 1 of the FOI Act and that the correct and preferred decision is to refuse Ms Alexander access to Mr Britt’s report. Accordingly, in these reasons for decision I have set out detailed reasons in regard to this exemption only.

19 However, it is noted that many of the findings from the material before the Tribunal would equally apply to the clause 6, 9 and 16 exemptions relied on by the University. However, each of these exemptions also have differing requirements or elements.

20 In my opinion, the clause 7(1)(c) exemption of ‘professional affairs’ does not apply as there is no evidence that Professor Walker was running a professional practice at the relevant time or that Mr Britt’s report related to her running such a practice: see Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214 at [13] and [39] to [43]. In Schlebaum, the evidence was that Dr Schelbaum was a consultant psychiatrist who provided her services to the community for a fee. In that decision, Deputy President Hennesy, at [39] cited with approval the meaning the Queensland Information Commissioner had given to the words “business” and “professional” affairs in the equivalent exemption under the Queensland FOI Act. That meaning was contained at [29] in the decision of Pope and Queensland Health [1994] QICmr 16 (18 July 1994) (1994) 1 QAR 616. It was in the following terms:

The four adjectives in the phrase "business, professional, commercial or financial affairs" were clearly not intended, because of the substantial overlap between them, to establish distinct and exclusive categories, but rather the phrase was intended to cover, in a compendious way, all forms of private sector commercial activity, and thereby to also cover commercial activities carried on by government agencies. The use of the words "professional affairs" was, in my opinion, intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, that is, to the running of a professional practice for the purpose of generating income.
21 In this application, it was Professor Walker’s status as a member of the academic profession which was the subject of Mr Britt’s report and this does not fall within the clause 7(1)(c) exemption.

22 I am also of the opinion that the entire contents of Mr Britt’s report does not fall within the terms of the clause 10 exemption. That exemption applies to information which would be privileged from production in legal proceedings on the ground of legal professional privilege.

23 It is well accepted that at common law, which is the applicable law for this exemption under the FOI Act, legal professional privilege attaches to any confidential communication between a person and his or her lawyer that is made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: see Daniels Corporation International Pty Ltd and Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543, [2002] HCA 49 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, and Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. At the time Mr Britt’s report came into existence no litigation was pending or contemplated.

24 It is not disputed that Mr Britt is a lawyer and he was instructed by the University in his capacity as a lawyer. For the reasons set out below, I have also found that the report of Mr Britt contains information obtained and communicated in confidence. That is, it is a confidential report containing information obtained in confidence and was presented to the University on this basis. What is in issue however, is the dominant purpose of the communication. This is a question of fact and as explained in paragraph [28] below, the evidence of the University is that it instructed Mr Britt to ‘provide advice in respect of the allegation against Professor Walker’ and that Professor Walker had been informed that the investigation would be conducted on a ‘confidential and privileged’ basis. In my opinion this evidence is not entirely consistent with the information contained in the report, a copy of which was provided to the Tribunal on a confidential basis. That is, the report, the contents of which the Tribunal is obliged not to disclose (see section 55 of the FOI Act), does not support the asserted dominant purpose of providing legal advice. It may be arguable that portions of the report were communicated for this purpose and to that extent may be exempt. However, in my opinion, the overwhelming purpose for which the communications in Mr Britt’s report came into existence for the dominant purpose of investigating the allegations against Professor Walker and making findings of fact. The fact that the report was forwarded to the Independent Commission of Corruption and the Ombudsman supports this conclusion. Accordingly, to the extent Mr Britt’s report concerns fact finding it is arguably not exempt under the clause 10 exemption. However, for the reasons stated above, I have made no conclusive findings in this regard.

Clause 13(b) exemption – the report contains information obtained in confidence

25 There are 3 main elements which the University must establish in order for the Tribunal to find Mr Britt’s report is an exempt document under clause 13(b) of Schedule 1 of the FOI Act. These elements are as follows:

(a) the disclosure of the report would disclose information obtained in confidence; and

(b) the disclosure of the information could reasonably be expected to prejudice the future supply of such information to the University; and

(c) the disclosure would, on balance, be contrary to the public interest.

(a) Was the information obtained in confidence?

26 It is well established that in order to satisfy this element it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was obtained or given.

27 In regard to Mr Britt’s report, I am satisfied on the basis of the content of the report and the open and closed evidence presented at the hearing that the information contained in the report was obtained in confidence. That is, the information in the entire body of the report and its annexure was obtained in confidence. The report expressly states this to be the case and the open affidavit evidence of Ms Kerri-Ann Rehn, senior solicitor of the University, Lynn Tracey Greenwood, Acting Faculty Manager for the Conservatorium and Mr Mark Geoffrey O’Brien, solicitor for Professor Walker, support this conclusion. The closed evidence of Ms Rehn, Ms Greenwood and Mr O’Brien merely provide further detailed evidence in this regard.

28 Ms Rehn’s evidence is that she instructed Mr Britt to ‘provide advice in respect of the allegation against Professor Walker’ and that Professor Walker had been informed that the investigation would be conducted on a ‘confidential and privileged’ basis. Ms Greenwood and Mr O’Brien, whose evidence was tendered on behalf of Professor Walker, gave similar evidence. Ms Greenwood said she was aware of the allegations that had been made and that the University had appointed Mr Britt to carry out an independent investigation into these. She states that she was interviewed by Mr Britt as part of the investigation and was expressly informed that the investigation and her evidence would be kept confidential. She said she has not read Mr Britt’s report and is not aware of its contents.

29 In his affidavit Mr John Robert Dyer, a director of Human Resources of the University, said that in the 32 years he has worked at the University, the practice has always been to deal with matters involving allegations concerning improper conduct by an employee on a confidential basis with disclosure of any material that is obtained in regard thereto on a ‘strictly limited’ basis ‘to those who have a reasonable need to know for the purposes of the investigation and any action arising as a consequence of it.’ Mr Dyer also said that in his experience complainants who made complaints against staff were generally made on the understanding that the complainant’s identity and any information by which the complainant might be identified is kept confidential. Similarly, those employees against whom complaints are made understand that any information obtained in regard to the complaint will be kept confidential.

30 Finally, Mr Dyer, explained that the reasons for which the University sought to maintain confidentiality of information obtained in the course of an investigation about allegations concerning an employee’s conduct were:

‘(a) to encourage the free flow of information to University management;

(b) facilitate the conduct of fair and proper investigations; and

(c) to ensure fairness to employees.’

(b) Could disclosure of the report be reasonably expected to prejudice the future supply of such information?

31 In determining whether the disclosure of a document containing information obtained in confidence could reasonably be expected to prejudice the future supply of such information, the Tribunal is required to engage in a relatively abstract analysis: see Director-General, Department of Education & Training v Mullet and anor (GD) [2002] NSWADTAP 13 at [58]. That is, it is a question as to whether, as a matter of reasonable expectation, information of the kind that is contained in Mr Britt’s report would, if released, prejudice the supply of similar information to the University in the future. Or to put it in another way, whether disclosure of the information as contained in the report could, as a matter of reasonable expectation, damage the ability of the University to obtain similar information in the future: see Re B and Brisbane North Regional Health Authority ((1994) 1 QAR279 at 341).

32 It is also accepted that the word ‘prejudice’ is to be given its ordinary/dictionary meaning – that is ‘to cause detriment or disadvantage’: Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266.

33 As set out above, Mr Dyer gave evidence as to the reasons why the University endeavours to maintain confidentiality of information obtained in regard to allegations of employee misconduct. He went on to say, that in a large and complex organisation such as the University, where there is no obligation to report issues relating to the performance or conduct of staff, significant reliance is placed on the maintenance of confidential channels of communication through which persons can raise such matters of concern with management. He said in the absence of such confidential channels of communication this would seriously inhibit the University’s capacity to identify possible employee misconduct and it would compromise the ability of the University to continue to conduct investigations of this nature in the same fair and effective manner it had been able to do to date.

34 Professor John Patrick Hearn, the Deputy Vice-Chancellor (International) for the University, gave evidence, on behalf of Professor Walker, in regard to this element of the exemption. Professor Hearn was also cross-examined by Ms Alexander during the hearing. Professor Hearn who is responsible for the international engagement and ‘internationalisation’ of the University said that while he was aware that allegations of plagiarism had been made against Professor Walker, that the University had appointed Mr Britt to investigate the allegations, that Mr Britt had reported on his investigation in a confidential report and that the applicant, a journalist, was seeking access to the report, he had not seen or read Mr Britt’s report, nor was he called upon to make a statement in the course of the investigation. He went on to say, that from his experience at the University, the staff expected that any investigation concerning their conduct as an employee would be conducted in a way to protect their respective rights, which included the maintenance of confidentiality. He said that the release of Mr Britt’s report would breach this confidence and was likely to undermine the trust staff had in University management. That is, if confidentiality could not be guaranteed many people within the University would be ‘much more reluctant to come forward with information or concerns.’

35 This evidence of Mr Dyer and Professor Hearne was not challenged and it is consistent with other decisions of the Tribunal where the exemption has been claimed in regard to documents which contain information in the form of a complaint that is made voluntarily and in circumstances of implied confidentiality and on which the agency is reliant in order to fulfil its functions and obligations. I would add that the clause 13(b) exemption is not to be construed as proving a guarantee of confidentiality to documents held by an agency which contains information that was obtained in confidence.

36 Ms Alexander appears to accept that the University has a ‘policy of protected disclosure’ in regard to allegations made against staff. However, she asserts that a distinction should be made between allegations of a general kind and those which concern ‘one of the fundamental tenets of university life’ such as allegations of plagiarism. A disclosure of the latter she asserts would not prejudice the future supply of allegations of a general nature. In my opinion, there is no basis to make such a distinction for the purpose of this element of the exemption. Nor does the evidence support such a distinction. However, it may be a relevant consideration for the purpose of the third element of this exemption, the public interest.

37 Accordingly, I find that the University has discharged its onus in regard to this element of the confidential information exemption.

(c) Would disclosure, on balance, be contrary to the public interest?

38 The mere fact that the first two elements of the exemption in clause 13(b) are satisfied does not mean that this element is also satisfied. This element is a separate public interest test where the agency is required to balance the public interest considerations for and against disclosure and be satisfied that the factors against disclosure outweigh those in favour. Factors in favour of disclosure have been found to include objects of the FOI Act (see section 5); namely promoting accountability and transparency of governmental operations.: see Keriakes v State Rail Authority of NSW [2003] NSWADT 191 at [38] citing Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606.

39 At the same time, the fact that disclosure of the report may cause embarrassment to the Government or cause Ms Alexander to misinterpreted or misunderstand the information in the report, is of no relevance to the public interest considerations: see section 59A of the FOI Act.

40 Ms Alexander in her submissions has identified the following public interest factors as favouring the disclosure of Mr Britt’s report:

a. the report concerns allegations that form a fundamental tenet of university life; namely plagiarism, which is of interest to all stakeholders in the University, a public agency. The identified stakeholders are past, present and future, students, employees, funders etc. of the University;

b. the report concerns allegations were made against a very senior member of staff, the Dean of the Conservatorium;

c. the nature of the allegations, the fact that an investigation had been undertaken and the findings of that investigation has already become public knowledge;

d. Mr Britt’s report does not make any adverse findings against Professor Walker; and

e. the University’s obligation, as a public institution, to satisfactorily explain to the public the reasons why Professor Walker was removed from her work, the content of the allegations the findings in regard thereto.

41 In my opinion, from the evidence before the Tribunal, the factors which weigh against disclosure of the report are as follows:
a. the public interest in individuals voluntarily coming forward and reporting genuine allegations of alleged of misconduct by a University staff member, not matter how senior, to the University management. The evidence is that this is ensured by keeping the channels of communication with management open and confidential, which was the basis in which the allegations were made against Professor Walker;

b. the public interest in relevant individuals, including those against whom an allegation of misconduct has been made, having confidence in the processes used by the University to investigate such allegations and take the appropriate action. Again, the evidence is that this is ensured through a process that is confidential, which was the process Mr Britt was instructed to apply and did apply. Furthermore, the evidence is that there has been a very limited disclosure of the report at the most senior levels management of University; and

d. the public interest in matters of a private or personal nature not being disclosed for public scrutiny unless there is another more overwhelming public interest in its disclosure to the public at large.

42 While I accept Ms Alexander’s submissions that the public has an interest in what is contained in Mr Britt’s report, particularly the nature of the allegations and the specific findings, in my opinion, the content of report is essentially of a private/personal nature which concerns the proper or internal management/working of the University. I accept that in a general sense Mr Britt’s report is indicative of the ‘processes’ used by the University in dealing with allegations of this kind, which are generally known. The report however, primarily deals with matters specific to the allegations made against Professor Walker and in that sense contains material that goes well beyond the ‘processes’ that are used. In Harris v Australian Broadcasting Tribunal (1983) 78 FLR 236 at 246, Beaumont J held that there was a public interest in the disclosure of documents which contained matter relating to the ‘processes’ of Government, but this did not extend to documents which contained material relating to the management or operation of the Government. In my opinion the objectives and provisions of the FOI Act support such a distinction.

43 Accordingly, in my opinion, for the reasons set out above, the University has satisfied the third element of this exemption that the disclosure of Mr Britt’s report would, on balance, be contrary to the public interest.

44 In making this finding, I have had no regard to the assertions of staff stress, or that Ms Alexander may misrepresent the information contained in the report if released. These assertions were made in the evidence and submissions put forward on behalf of Professor Walker. In my opinion they were not relevant to the matters in issue. In making this finding I am not suggesting that the evidence of stress suffered by staff at the Conservatorium as a result of media attention is not genuine. However, there was no evidence to support the assertion made against Ms Alexander, who was doing no more than exercising her rights under the FOI Act.

Conclusion

45 For the reasons set out above the University has satisfied me that the information contained in Mr Britt’s report is information obtained in confidence and is exempt under clause 13(b) of Schedule 1 of the FOI Act.

OVERRIDE DISCRETION

46 In University of New South Wales v McGuirk [2006] NSWSC 1362, Nicholas J held that section 63 of the ADT Act vests the Tribunal with a discretion to order access to a document which is an exempt document if it decides that to do so is the correct and preferable decision with regard to the material then before it. This discretion arises by reason of section 25(1) of the FOI Act which confers a discretion on an agency to provide access to a document notwithstanding that the document is an exempt document.

47 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds justifying the exercise of the override discretion to grant access to a document that is found to be exempt. At [27] the President set out some of the factors relevant to the exercise of the discretion as follows:

- whether the exempt matter was, by other means, in the public domain,

- whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant,

- the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity,

- the public interest in an informal debate on issues of significance to the community,

- whether there were adverse consequences for the proper administration of government, and their extent,

- whether any adverse consequence is remote or innocuous.

48 In my opinion, where in determining whether a document is exempt under a ground of exemption such as clause 13(b) which involves an assessment of where, on balance, the public interest lies, there is very little room, if any, for the discretion to operate. Nevertheless, on the basis of my findings above, release of Mr Britt’s report would give rise to adverse consequences for the proper administration of the University in dealing with allegations against individual staff members in the future and this far out weighs any interest the public may have in knowing what is contained in the report, beyond what is already known.

Orders

For the reasons set out above, I find that the decision of the University is the correct and preferred decision and should be affirmed.