Anderson v University of Sydney

[2018] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Anderson v University of Sydney [2018] NSWCATAD 196

Hearing dates:

17 May 2018

Date of orders:

27 August 2018

Decision date:

27 August 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1)   Document 36. The decision of the respondent is set aside in respect of Document 36. That document is to be released with the personal information of non-University employees redacted, and the 3rd and 4th line of the 4:25pm email beginning ‘As..’ - redacted.
(2)   Document 34. The decision of the respondent is set aside in respect of Document 34. That document is to be released with the author’s name and email address identifier redacted.
(3)   Document 33. The decision of the respondent is set aside in respect of Document 33. That document is to be released with the author’s name and email address identifier redacted.
(4)   Document 24. The decision of the respondent is set aside in respect of Document 24. That document is to be released with the author’s name and email address identifier redacted. That document is to be released with the following redacted from the email contained within document 24: the 10th, 11th and 12th words of paragraph 2 (redacted), the second sentence of paragraph 3 (redacted), paragraph 4 (redacted) and paragraph 5 (redacted).  
(5)   Document 22. The decision of the respondent is set aside in respect of Document 22. That document is to be released with the author’s name and email address identifier redacted.

(6) The decision of the respondent is otherwise affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege –– sufficiency of evidence to establish factors against disclosure - weight to apply significantly to factors against disclosure – personal factors of application in favour of disclosure of information.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Government Information (Public Access) Act 2009

Cases Cited:

CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169
Hutchinson v Walcha Shire Council [2015] NSWCATAD 132
Mannix v Department of Education and Communities [2014] NSWCATAD 35
Transport for New South Wales v Searle [2018] NSWCATAP 93

Texts Cited:

The University of Sydney
Enterprise Agreement 2013 - 2017

Category:

Principal judgment

Parties:

Tim Anderson (Applicant)
University of Sydney (Respondent)

Representation:

Counsel:
B Tronson (Respondent)

  Solicitors:
Self represented (Applicant)
Heesom Legal (Respondent)

File Number(s):

2018/00001692

Publication restriction:

Nil

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. The applicant was seeking access to information held by the respondent (who is also his employer). The information concerned matters related to the respondent’s public comments and political comments (activities) and the respondent’s engagements with third parties concerning those activities. The respondent decided to withhold significant portions of the information relying on various provisions of the GIPA Act.

3. After considering all of the evidence and submissions of the parties, and considering the specific information in dispute, I have decided to release some of the information in dispute. As a result the decision of the respondent will be set aside in part and the remainder of the decision affirmed.

4. In his original application made on or about 20 November 2017 the applicant requested the following information:

Any correspondence concerning the public or political comments of Tim Anderson (me) in 2017, whether held by the Vice-Chancellor, the Provost, the Office of General Counsel, the Dean of Arts and Social Sciences, or the School of Social and Political Science.

5. On 22 December 2017 the respondent decided the application and gave access to some of the information sought.

Jurisdiction

6. There is no dispute that the application for administrative review has been lodged within time, nor is there any dispute that the Tribunal has jurisdiction to review the matter. The decision under review is a reviewable decision in accordance with s 80 of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

The Legislative Provisions

7. The objects of the GIPA Act are as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

8. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraphs 5 -10 the following outline of the provisions is provided:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

9. The respondent relied upon a number of bases under the GIPA Act in refusing release of some of the information. Of the 36 identified documents or items of information nine were released in full and one in part. The remaining 27 documents were refused citing various provisions ranging from information where there was a conclusive presumption against release, to information where the public interest considerations against disclosure override the general public interest in favour of disclosure.

10. There were five public interest considerations against disclosure at s 14 of the GIPA Act which the respondent relied upon in withholding some of the information from the applicant. These considerations were clauses:

• 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

• 1(f) prejudice the effective exercise by an agency of the agency’s functions,

• 1 (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.

• 3 (a) reveal an individual’s personal information.

• 3 (b) contravene an information protection principle under the Privacy and Personal Information Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

11. In seven of the documents the respondent relied on these public interest against disclosure considerations and concluded that they outweighed the public interest considerations in favour of disclosure.

12. In addition for some of the information the respondent relied upon one of the conclusive presumption against disclosure grounds as set out in schedule 1 of the GIPA Act. This ground relates to material for which a claim of legal professional privilege is made. Cl 5 of Sch 1 provides:

5 Legal professional privilege

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

13. The respondent relied on this conclusive presumption in respect of all of the information in 20 of the 26 withheld documents.

14. Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighed for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighing occurs and the material is withheld at that point.

15. During the hearing I dealt some of these issues in confidential session. The applicant and the public were excluded from that aspect of the hearing. Section 107 (1) provides:

107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

16. The applicant took some issue both in submissions and at hearing with this approach. Consistent with my obligations under the governing legislation I explained the Tribunal procedure to the applicant.

17. I have determined in the interests of open decision making I will provide only open reasons for decision rather than produce separate confidential reasons. However these reasons will remain in conformity with s107 and will refer to matters in general terms as necessary.

18. Two confidential bundles were filed and received in the hearing. One bundle contained the complete ‘within scope’ documents (including those withheld from release). The other bundle contained a confidential affidavit. I have considered this material confidentially in preparing these reasons.

Summary of background to information request.

19. The contest of the access request concerns the applicant’s desire to understand his employer’s position in respect of what action it took in response to media centred inquiries, public complaints and criticisms of his academic pursuits. The central theme involved the applicant’s stated position in respect of the existing Syrian conflict and whether the incumbent regime or the ‘non-government’ forces represented the correct legal / moral position in the existing conflict.

20. As set out in the applicant’s submissions, there was some debate during the period April – May 2017 amongst University managers arising from public criticisms and comments concerning a conference on Syria which the applicant was involved with organising and participating. The applicant submitted that the organisers were subject to adverse media scrutiny and comments in the months leading up to the April 2017 conference and the months following.

21. Another employee of the University became embroiled in the media criticism and the applicant asserts that certain information was given out by the University. In short the applicant seems to wish to examine that process and understand the broader process of the communications between the University and certain elements within the media over this matter.

22. In summary the applicant submitted that the University collaborated with a media outlet to the detriment of a colleague. It is not the role of these proceedings to examine this ‘primary’ dispute further, but rather the role is to make the correct and preferable decision in respect of the decision to withhold some of the information from release to the applicant: Administrative Decisions Review Act 1997, s 63(1). The above summary and further aspects of the applicant’s submissions are relevant for considering the cl 3 (a) and (b) and cl 1 grounds that the respondent applied to withholding seven of the items of information under s-55 of the GIPA Act, and general grounds in favour of providing access to the applicant.

23. Section 55 relevantly provides:

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.

…

The hearing

24. The matter was heard on 17 May 2018. One witness gave evidence at the hearing and was subject to cross-examination. The witness was recalled during the confidential session. The respondent filed evidence in support of the claim for legal professional privilege (LPP).

25. The respondent asserted LPP over twenty of the documents, and provided written submissions and submissions in reply on this point. In addition the witness (Mr D Stewart) provided an open affidavit, a confidential affidavit and gave evidence in the proceedings on this issue.

26. By the time of the hearing the respondent had shifted their position in respect of public interest considerations against disclosure somewhat, adding cl 3 (f) (expose a person to a risk of harm or of serious harassment or serious intimidation). However the respondent conceded that this ground carried less weight as the evidence was not capable of being tested on this point.

Consideration on LPP

27. The most efficient approach is to consider the LPP material and see if on a preliminary basis there is a conclusive presumption against the disclosure of that material: GIPA Act, Sch 1, cl 5. The respondent maintained that it had not previously waived any legal privilege and maintained the position refusing any waiver.

Principles of Legal Professional Privilege

28. The concept of LPP has been well established as a legal concept over many years. The respondent referred to the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 as establishing the requisite LPP requirements in the GIPA Act context. At [54] the Tribunal observed:

54. The general provisions relating to the existence of legal professional privilege are as follows. The material must be:

In the context of a client and lawyer relationship,

That there is a confidential nature to the communication or the document(s),

The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation.

55. These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW).

29. An examination of the confidential material including the open affidavit of Dominic Stewart indicates that the material could be considered as meeting the requirements of material for which a claim of LPP is made.

30. The question for the Tribunal is whether these documents were brought into existence for the dominant purpose of providing legal advice to a client or the client being provided with professional legal services.

31. Sections 118 and 119 of the Evidence Act 1995 provide:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

32. The principles concerning how LPP is established were less well understood by the applicant principally it appears because in his assessment the information had a primary purpose beyond LPP. In this regard he perceived that the claim was only based on the position that a lawyer had been copied in to the communications which constituted the withheld LPP information.

32. The applicant also made submissions that many of the released e-mails had been ‘copied in’ to the University’s media office and for that reason were unlikely to be properly characterised as LPP material.

33. The applicant in written submissions identified that the issue concerning the colleague (as set out in [22] above) was the primary issue and that:

..any ‘legal’ discussion concerning myself was subordinate to, after and in response to my defence of (colleague) following management collaboration with the (‘Newspaper’) to smear (‘colleague’).

35. The respondent submitted that the applicant’s arguments concerning the generation of information concerning the colleague was irrelevant to the LPP issue.

Evidence of D Stewart

36. In open session Mr Dominic Stewart gave evidence on behalf of the respondent. The witness referred to the analysis of relevant documents on the LPP issue in his open affidavit.

37. In respect of document 10 the witness advised that on reflection it appeared that the document (a communication from the Media Officer to a number of staff including the general counsel and the witness), may have been mischaracterised, however the witness confirmed that in his opinion the dominant purpose for which that document was prepared was for legal purposes within the realm of LPP.

38. In respect of document 11 the witness advised that other purposes in addition to legal purposes included reputational risk by way of risk management. However significant legal advice in both documents 10 and 11 concerned risk management or matter concerning reputational risk. The witness adopted his affidavit which was significantly redacted in open form.

39. In cross examination the witness was asked who his legal clients were to which he advised that officers of the University constituted his clients from a legal services perspective. The witness clarified that students are given advice from to time to time but that they do not receive this directly from the Office of General Counsel (OGC).

40. The witness clarified that legal activities were mainly ‘advisory’ in nature and these constitute approximately 80% of the work of the OGC (including the work of the witness). The evidence being that not a lot of the work involved litigation. When asked if his duties involved searches for information on staff members the witness replied that that sort of request would be referred to Human Resources (HR).

41. The witness was asked about documents 10 and 11 from the evidence in his affidavit, and advised that these were to consider legal (risk) issues. In addition he was asked if a question concerning whether a public comment was appropriate, constituted a legal issue or advice. The witness confirmed that in his view it was legal advice.

42. The witness was asked whether providing advice as to whether ‘a public response was an appropriate response’ concerned legal advice or reputational risk. The question was directed specifically at document 10 and the witness indicated that in his view there were legal issues to address.

43. In respect of document 19 the witness was asked in what sense was he referring to or meaning ‘legal advice’. The witness stated that the legal advice arose in respect of the application of a set of facts to University policies. This situation also applied to document 15.

44. The Tribunal inquired of the witness into aspects of his evidence in accordance with s. 38 (2) of the Civil and Administrative Tribunal Act 2013. The witness advised that he was not directly involved in any risk assessment processes and that matters concerning reputational risk were well in the minority of his duties.

45. The applicant drew a distinction between the policy referred to in document 13 and the University Enterprise Agreement at 254.

The University of Sydney

Enterprise Agreement 2013 – 2017

INTELLECTUAL FREEDOM

254 The Parties are committed to the protection and promotion of intellectual freedom, including the rights of:

(a) Academic staff to engage in the free and responsible pursuit of all aspects of knowledge and culture

through independent research, and to the dissemination of the outcomes of research in discussion, in

teaching, as publications and creative works and in public debate; and

(b) Academic, Professional and English language teaching staff to:

(i) participate in the representative institutions of governance within the University in accordance

with the statutes, rules and terms of reference of the institutions;

(ii) express opinions about the operation of the University and higher education policy in general;

(iii) participate in professional and representative bodies, including Unions, and to engage in

community service without fear of harassment, intimidation or unfair treatment in their

employment; and

(iv) express unpopular or controversial views, provided that in doing so staff must not engage in

harassment, vilification or intimidation.

46. The applicant suggested that the University’s Public Comment Policy was subordinate to the Enterprise Agreement. In making this submission the applicant referred to the industrial agreement as overriding any internal policy concerning the conduct of academic staff. It is unnecessary to make a finding on this issue as these proceedings do not concern the applicant’s actions but rather whether the respondent made the correct and preferable decision on the application for information.

Confidential hearing

47. As indicated above there was a confidential session whereby the applicant (and the public) were excluded, consistent with s-107 of the GIPA Act. However, as indicated at [17] above, in my view it is unnecessary to produce a separate set of confidential reasons for decision.

48. From the open affidavit of Mr Stewart reference was made to ‘DDS4’ in paragraph 15 (e) and attached to document 13. DDS4 is a copy of e-mail advice and attachments. The respondent’s Counsel indicated that the applicant would be made aware of the fact that the attachments (copies of tweets) were provided and referred to in the advice. DDS4 must be understood as constituting all the one suite of material (e-mails and attachments).

49. The witness was recalled and gave general evidence that in his view it was not (on the current information within scope), possible to divorce the management of reputational risk from legal advice. The witness gave evidence that the basis or purpose of the information leading to advice was to look at the legal implications of the matter referred to the OCG.

50. The Tribunal was taken through DDS 11, and DDS12. Document 27 - DDS14, Document 28 (which dealt with the forwarding of DDS14), Document 29, Document 30, Document 32, Document 33 and Document 36.

51. I have examined all of these documents in addition to the other documents fully or partially withheld from the applicant.

Open hearing

52. In open session both parties made oral submissions. The respondent submitted that legal advice will always be about something, and in this instance reputational risk was at play. The reputational risk sometimes arises from an incident for example, an accident occurring and people subsequently finding out about the accident. Arising from such an example are legal liabilities and similar issues requiring legal advice and a considered response.

53. The respondent submitted that an agency might manage that risk by (for example) admitting liability for the matter after receiving legal advice. It was also submitted that it was not uncommon for reputational risk matters to arise after or in conjunction within receipt of legal advice. In making this submission the respondent reiterated that the advice that the OCG provides is not characterised as advising on reputational risk but providing legal advice.

54. The applicant submitted that the issue at stake is the right to see inaccurate information that could be potentially damaging to his professional reputation.

55. The applicant submitted that LLP cannot merely have some relationship to the issues at play, but must be central to the context and the matter in question.

56. In addition the applicant submitted that the respondent had been unable to identify any existing or relevant litigation in or arising from the process of examining his own conduct. The witness had been probed as to who was his client in his cross-examination and this had not been addressed in a manner which could satisfy the Tribunal as to the relevance of LPP to the facts.

57. The respondent had merely given evidence and submissions that there was advice pertaining to the Code of Conduct. The applicant in closing stated that he sought this information for purposes related to his academic research, in examining the University’s response.

58. In reply the respondent submitted that they were unaware or had not understood that the applicant wanted the information for his research. In that regard the respondent noted that no evidence or material had been submitted attesting to the applicant’s endeavours in that regard.

59. In closing the respondent submitted that s 117 of the Evidence Act 1995 provides a client definition in the context of LPP.

17 Definitions

(1) In this Division:

client includes the following:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting,

(e) if a client has died—a personal representative of the client,

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.

60. The difficulty for the applicant in such proceedings concerns how they might rebut the evidence of the respondent. By its nature a GIPA Act administrative review usually only concerns evidence from one party (the respondent) to establish that the correct and preferable decision has been made concerning the decision to release / withhold Government information.

61. The usual course that a hearing takes is that open and closed evidence and submissions are filed, a confidential hearing may take place, and from the applicant’s perspective their case is effectively in the hands of the Tribunal. In the current matter however the applicant does have the benefit of the open Stewart affidavit. That affidavit sets out the structure of the OGC within the University, the nature of the lawyer role of various persons assigned to that office, and the nature of the work performed. The list of documents sets out at pages 4-7 includes a description of the document and the context.

62. An examination of the actual content of those documents shows that the documents are consistent with the description in the open Stewart affidavit. That is that all documents apart from documents 32 and 36 were brought into being for the dominant purpose of obtaining legal advice or use in litigation consistent with s-118 of the Evidence Act. Documents 32, and 36, predominantly deal with matters associated with complaint response which I address below.

Initial findings

63. The documents that are not specifically referred to further in these reasons, have been considered and are addressed under order (6) of these reasons for decision . I find that the documents for which a claim for LPP is made, other than document 36, (which is addressed below), constitute material which meets the criteria of LPP on the face of the document and having regard to the evidence of Mr Stewart. Those documents are communications between a lawyer and their client concerning legal advice.

Document 36

64. The respondent relied on Clause 5 of Sch 1 (the LPP argument) in relation to this document. The document comprises three emails forming a chain. The first is sent at 15:03 hours, substantially responding to a complaint concerning the applicant. The second email (received at 4:25pm or 16:25 hours) is an acknowledgement response expressing an opinion about the earlier response. This in my view is clearly not LPP material. The material (as presented in that document) on its face involves responding to a complainant in a general customer service complaint handling context conveying information about an assessment of the conduct of a staff member. It is not information concerning a confidential communication between a client and a lawyer.

65. The third e-mail is a forwarding of the response to an officer within the OCG at 5:10pm (or 17:10 hours) merely stating:

I don’t think any further action is required at present but FYI.

66. In my view having regard to the apparent context and the content of the information this does not constitute LPP material. It is not information concerning a confidential communication between a client and a lawyer.

67. The third email could be considered a communication between a client and a lawyer (about the pre-existing matter), but, deleting the second, third and fourth sentence from the second e-mail removes the context of the issue that the third e-mail communication concerns. The applicant already knows that all the information subject of the application is broadly ‘about him’.

68. There is nothing confidential about the communication and contents constituting the third (5:10pm) email, other than the ‘client’ telling the ‘lawyer’ that in the client’s view no further action is required and provided merely ‘FYI’ which stands for ‘for your information’. On the face of these documents they are more about complaint handling and customer service responses. It is not information concerning a confidential communication between a client and a lawyer.

69. Whilst I accept that Ms Cassoff is within the OGC, the communication does not create any legal relationship consistent with s-118 of the Evidence Act. If anything that communication is merely a way of keeping the OGC ‘in the loop’ about how the University was responding to a somewhat complex complaint. Whilst the author could be considered the ‘client’ and the recipient the ‘lawyer’, what is occurring is merely a cc..ing to the OGC of a communication to a member of the public. That communication does not, on my assessment on its face, meet the necessary criteria to enliven LPP.

70. I find that there is no evidence to substantiate that the context of that specific communication was in the nature of a lawyer client relationship. The evidence of Mr Stewart concerning reputational risk and managing the University’s response on understandably sensitive issues communication does explain why matters were run by the OGC. On other documents those issues have some credence, especially when advice is given about the proper approach and response. However not all matters fall within the LPP criteria. Matters in the nature of good administrative conduct and appropriate complaint handling and customer service do not constitute LPP material unless there is something further, such as that the communication has a purpose identified within s118 or 119 of the Evidence Act 1995 and is therefore LPP material.

71. I therefore find that that the conclusive presumption relating to LPP is only established if the response sought advice or made a legal recommendation on the contents of the second e-mail. I find that for that email there is no conclusive presumption because it is merely ‘FYI’. I find that it is not information concerning a confidential communication between a client and a lawyer.

72. In my view the release of the matter is rectified by deleting the second, third and fourth sentence of the 4:25pm e-mail, and the name and email address of the sender. These amendments do not cover LPP issues but address necessary redactions to overcome the public interest considerations against disclosure which in my view carry significant weight when considering the express desire for the complainant’s identity to remain confidential.

73. In addition the personal information of persons other than University employees should be redacted from the first (15:03 hours) email. That would include the recipient’s email address and the complainant and their agent’s name from the content of the email. These matters are removed because I find that while there is no conclusive presumption in relation to LPP clauses 3 (a) and (b) of the Table to s-14 (the public interest considerations against disclosure) have been established and attract considerable weight (s-13). The weight arises from the nature of the dispute between the protagonists and players in the wider context of the Syrian conflict, and the various allegations and accusations directed to the applicant by third party complainants.

Document 32

74. This document is described in the schedule as: Professor Annamarie Jagose to Ms Kristy Cassoff. On examination of the document it has many similarities to Document 36. However it is clearly couched in the context of seeking advice from the OGC. The document deals with three separate complaints from members of the public concerning the applicant’s views and activities. Page 109 (of the bundle) is clearly legal advice.

75. Again I observe that the complaint handling approach of the University appears to have included as a mandatory step (at least in the subject of these proceedings) the seeking and obtaining of legal advice.. The records however show that advice was sought from the OGC and due to their content and context I find that the document meets the criteria of LPP. In that regard I find that is information concerning a confidential communication between a client and a lawyer.

76. I also note that arising from the LPP claim, the issues that the University was dealing with had an Industrial Relations type context in that issues of dismissal, authority within employment and similar issues were in the public domain and central to the third party contact with the University.

Consideration of Public Interest against disclosure grounds

77. For some information, the respondent relied on the public interest considerations against disclosure grounds (outweighing the general public interest in favour of disclosure), as an alternative means of withholding the information from release. The grounds relied upon are set out at paragraph [10] above.

78. The Tribunal recently revisited the procedure for dealing with public interest considerations against disclosure, when assessing information in both first instance and appeal cases.

79. In the decision of this Tribunal in CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169 the statutory approach taken to Part 1 Div 2 of the GIPA Act was examined at [38].

38. The parties are in general agreement in regard to the issues for determination. In respect of information that has been withheld these are:

(1)   What are the public interest considerations in favour of disclosure?

(2)   What are the public interest considerations against disclosure?

(3)   Is there an overriding public interest against disclosure?

(4)   Should the Tribunal affirm, vary or set aside the Department’s decision?

80. At [53] – [58] of CGU the Tribunal sets out how the provisions in s-12-15 of the GIPA Act apply to the factors / considerations and ultimately the information.

53. Each of clauses 1(f), 3(a), 3(b) and 4(d) of the table to section 14 has been considered in matters before this Tribunal. In relation to each of the asserted section 14 table factors the Department must establish that the disclosure of the information “could reasonably be expected to” have the effect outlined in the table.

54. The words “could reasonably be expected to” have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words –

“... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.”

55. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at paragraph [61] that:

“... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds".”

56. Clauses 1(f) and 4(d) of the table to section 14 contain the term "prejudice". That term is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].

57. The Department needs to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [68].

58. The Appeal Panel in Transport for NSW v Searle adopted the views expressed in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 that the question as to prejudice to future supply is not to be determined by reference to the particulars of the immediate situation. It is not necessary to show that it could reasonably be expected to occur on every occasion. It is to be determined at a broader operational level. Hence, the fact that in the present situation the specific individuals supplying the information were unlikely to be inhibited even if there was disclosure was not determinative against the agency.

81. The Appeal Panel of the Tribunal has also considered how the considerations against disclosure are assessed in the case of Transport for New South Wales v Searle [2018] NSWCATAP 93. At paragraphs 61 – 65 the Appeal Panel observed:

61. We do think it is implicit that the Tribunal did set an overly demanding evidentiary requirement as identified by the appellant. In this regard, we are, particularly, persuaded by the weight of the references (as referred to in paragraphs 36 and 37 above) to the lack of specific evidence as to what suppliers of information would actually do in the hypothetical in issue. Given the administrative nature of the decision and the abstract and hypothetical subject matter, it does seem to us that the emphasis the Tribunal gave to such evidence not only overstated its potential significance but was also too stringent in approach.

62. In arriving at this conclusion, we do not agree with the respondent that the absence of “factual” evidence was merely a factor in the weighing of the material. On the contrary, the inference we draw from the Tribunal’s reasons is that the absence of such evidence was of considerable significance, if not fatal to the appellant’s case, leaving the Tribunal, as it saw it, with little or nothing more than the unsupported, self-serving views of witnesses.

63. In our view, this did not accord with an ordinary weighing of the material before the Tribunal of the kind set out in paragraphs 66 to 87 below which would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses, including the considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined.

64. The preparedness of a court or a Tribunal to rely on a natural implication that the flow of future information is likely to be adversely affected without direct evidence from the providers of information is reflected in the decisions in Commonwealth v Northern Land Council [1993] HCA 24; (1992) 176 CLR 604 at 615; Attorney – General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [24] – [25]; Woolley v Lismore City Council [2013] NSWADT 10 at [73] - [74].

65. For these reasons, we agree with the appellant that in its approach to the question whether cl 1(d) applied the Tribunal made an error of law.

Document 33

82. Document 33 is described in the schedule as ‘Individual to Ms Kirsten Andrews’. The document is an email alerting the recipient (University) to matters relating to the applicant’s Twitter account. The author asks the University to look at the account postings and asks why the applicant holds the position (on Syria) that he holds. The question seems somewhat rhetorical in that it is not a question that the University appears capable of answering. The author makes a number of other observations.

83. On my assessment the document reflects nothing more than the author’s desire to bring their concerns about aspects of the applicant’s conduct to the University’s attention. In my view all of the stated public interest considerations against disclosure could be established and I so find. This finding is based on the fact that the content and context of the material establishes that the outcome could reasonably be expected to occur.

84. However as established, those considerations carry minimal weight. I note that no evidence has been put on to indicate the level of weight attributable to the considerations in favour of disclosure contrasted or balanced against the considerations against disclosure. The respondent submits however that significant weight should be given to these matters. Under section 13 of the GIPA Act, I am required to balance these competing issues. In my view the only factors against disclosure significant to override the general consideration in favour is the identity of the author / complainant. I attach significant weight to this factor (cl 3 (a) and (b) ) noting the expressed desire to remain confidential. I observe that the subject matter is somewhat inflammatory and such matters should on balance for the stated grounds / factors, outweigh the general public interest considerations in favour of disclosure of that particular information. I discount the other factors as having any significant weight.

85. The appropriate remedy is to redact all identifiers of the author from the document consistent with s74 of the GIPA Act. This enables the majority of the information to be released with the necessary (minimal) information withheld due to the weight attributed to the personal information, as factors outweighing its release.

86. Whilst s-55 is to be applied at the discretion of the agency in my analysis of the material those factors add to the basis of the weighting for the information to be released in the document. However I observe that on balance all of the identified information would still be assessed for release irrespective of the existence of personal factors.

87. Document 33 should be released with the author’s name and email address deleted.

Document 34

88. The same issues are at play in this document as those in document 33. In that regard I rely on the reasons set out at [82] to [86] above and I so find. For those reasons the material should be released with similar redactions as Document 33. The name and email address / identifier should be deleted. In this manner none of the other public interest considerations against disclosure (other than the personal information factors) remain so as to override the general public interest in favour of disclosure.

Documents 26 28 and 30

89. These documents are described in the schedule as: Ms Rosalind Ogilvie to Mr Dominic Stewart (28), Individual to Ms Rosalind Ogilvie (30) and Individual to Ms Rosalind Ogilvie (26). Document 28 invoked cl 5 sch 1, Document 30 invokes cl 1 (d), 1 (f), 1 (g) 3 (a) and 3 (b) and Document 26 invokes cl 1 (d) 1(f), 1 (g), 3 (a) and 3 (b) .

90. Document 28 is clearly again couched in the terms of ‘seeking advice; from the OGC and as such it is characterised as LPP material. On the public interest considerations against disclosure factors I observe that the bulk of the document (being the complaint) could be withheld under cl 1 (g), 3 (a) and 3 (b). Whilst I attach significant weight to those matters because of the content and context of the information on the face of the documents. However, I reject the clause 1 (d) (prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions), and (f) (prejudice the effective exercise by an agency of the agency’s functions) arguments. While those arguments are established as considerations (having regard to the content and context of the information / document, I find that on balance those matters do not override the general public interest considerations in favour of disclosure.

91. When applying the personal information aspects of the clauses to the Table in s14 positively to withhold information, the weight remaining for the clause 1 (d) and (f) considerations is minimal.

92. However, on the personal information considerations (against disclosure) I note that the detailed descriptors would allow constructive identification of the author. For those reasons and again noting the content and context of the information, significant weight attaches to the personal information considerations. As a result I find that the entire document should be withheld and the decision on that document will be affirmed. As document 27 is captured by document 28 this finding also applies to document 27.

93. Document 30 does not invoke LPP claims but falls into the same suite of public interest factors against disclosure as Document 28. I adopt those reasons above concerning Document 28 in withholding the entire document, and the decision will be affirmed.

94. Document 26 does not invoke LPP claims but falls into the same suite of public interest factors against disclosure as Document 28. I especially note the ability to constructively identify the author from the detail in the bulk of the document. I adopt those reasons (as set out above concerning Document 28) in withholding the entire document, and the decision will be affirmed.

Documents 22 and 24

95. These documents are described in the schedule as: Individual to Ms Rosalind Ogilvie (22), and Individual to Ms Rosalind Ogilvie (24). Clauses 1 (d), 1 (f), 1 (g) and 3 (a) and 3(b) are invoked for both documents.

96. The major difference between these documents and documents 30 and 26 are that the content of the documents does not (on my assessment) provide any detail capable of identifying the author in any measure or way. In essence constructive identification of a clear individual is not in my view possible from the documents once the identifying name and email address is removed.

97. Because I find that there is no ability for constructive identification, the remaining clauses (other than 3, (a) and 3 (b) ) fall away. I note that the GIPA Act is a lawful way for citizens to access government information and that the respondent is actually protected from any claim for breach of confidence by the operation of section 113 of the GIPA Act.

98. There is clearly a tension between the operation of the clauses under the Table to s 14 and exempting provisions of the GIPA Act which provide a Crown immunity. In some instances some remaining weight would attach to the considerations against disclosure notwithstanding the immunity or ‘exemption’ provisions elsewhere in the Act.

99. Again, as in some of the documents above, on my assessment the documents are nothing more than the author’s desire to bring their concerns about aspects of the applicant’s conduct to the University’s attention. In my view all of the stated public interest considerations against disclosure could be established. However once established, on the balancing exercise in s 13 they would carry minimal weight. Under section 13 of the GIPA Act, I am required to balance these competing issues. In my view the only factors against disclosure significant to override the general consideration in favour is the identity of the author / complainant. I attach significant weight to this factor (cl 3 (a) and (b) ) noting the expressed desire to remain confidential. The subject matter is again somewhat inflammatory and such matters should outweigh the general public interest considerations in favour of disclosure of that particular information. I discount the other factors as having any significant weight.

100. I note again that no specific evidence has been put on to indicate the level of weight attributable to the considerations in favour of disclosure contrasted or balanced against the considerations against disclosure. The respondent submits however that significant weight should be given to these matters

101. Again, the easiest remedy is to redact all identifiers of the author from the document consistent with s74 of the GIPA Act for the reasons set out at [85]. Documents 22 and 24 should be released with the author’s name and email address deleted.

102. I also find that on the information that I have identified for release above, based on submissions concerning researching the University’s handling of these somewhat contentious issues (relating to the academic expression of opinion) I find pursuant to s 55 (2) that the personal factors of the application carry some weight in providing the applicant with access to the information – approved for release, albeit in a form with the author’s identify redacted. Where relevant I have dealt with those factors in a consideration of the specific documents.

Conclusion

103. On one of the documents the claim of LPP is not established. On four of the documents the public interest considerations against disclosure (whilst established) do not in the circumstances specified above, tip the balance against disclosure of all of the information in those documents.

104. I therefore make the following orders:

Orders

1. Document 36. The decision of the respondent is set aside in respect of Document 36. That document is to be released with the personal information of non-University employees redacted, and the 3rd and 4th line of the 4:25pm email beginning ‘As..’ - redacted.

2. Document 34. The decision of the respondent is set aside in respect of Document 34. That document is to be released with the author’s name and email address identifier redacted.

3. Document 33. The decision of the respondent is set aside in respect of Document 33. That document is to be released with the author’s name and email address identifier redacted.

4. Document 24. The decision of the respondent is set aside in respect of Document 24. That document is to be released with the author’s name and email address identifier redacted. That document is to be released with the following redacted from the email contained within document 24: the 10th, 11th and 12th words of paragraph 2 (redacted), the second sentence of paragraph 3 (redacted), paragraph 4 (redacted) and paragraph 5 (redacted).

5. Document 22. The decision of the respondent is set aside in respect of Document 22. That document is to be released with the author’s name and email address identifier redacted.

6. The decision of the respondent is otherwise affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

24 September 2018 - Orders and para [92] amended per Orders in [2018] NSWCATAD 225

Decision last updated: 24 September 2018