B v Vice Chancellor and Principal, University of New England

[1999] NSWADT 128

CITATION:	B -v- Vice Chancellor and Principal, University of New England [1999] NSWADT 128
DIVISION:	General
APPLICANT:	B
RESPONDENT:	Vice Chancellor and Principal, University of New England
FILE NUMBER:	993186
HEARING DATES:	11/29/1999
SUBMISSIONS CLOSED:
DATE OF DECISION:	3 December 1999
BEFORE:	M B Smith - Judicial Member
PRIMARY LEGISLATION:	Freedom of Information Act 1989
APPLICATION:	Review of decision to refuse to grant access to documents -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: No appearance Respondent: B Lancaster, agent
ORDERS:	Order made on 29 November 1999: 1. The decision under review is affirmed.

1 This is an application under s 53 (1) of the Freedom of Information Act 1989 (NSW) concerning a decision taken by a delegate of the respondent and affirmed on internal review by another delegate. The application form indicates that the applicant was acting for herself and was not assisted by a lawyer or other person. The Tribunal’s file contains several communications with her at her address for service which she has acknowledged. The file contains a copy of a letter from the Tribunal’s Registrar dated 19 October 1999 confirming a directions hearing listing on Monday 22 November 1999 at 9.30am and a listing for hearing on Monday 29 November at 2pm. I am satisfied that she received this and was aware of the two listings, since there is a transcript of the directions hearing on 22 November at which she appeared for herself. The transcript has several references by the President to the hearing “next Monday” which the applicant appears to acknowledge and understand. However, when the matter was listed at the time and place notified she did not appear. She could not be contacted by phone call by a Registry officer to the number show on her application, her work number, but the person answering it indicated that she was believed to be at work although not able to be located to answer the call.

2 Dr Lancaster, who is the University’s Director, Human Resource Services, was in attendance to represent the respondent. He indicated a desire that the matter should not be adjourned but should be resolved in the absence of the applicant. As will appear below, I considered that the application raised points of short compass and that it was in the interests of a third person, Mr Drummond, and probably also the applicant that it should be determined without further delay so that she and Mr Drummond could consider their positions further. Since I was satisfied that the applicant had notice of the hearing and had made no attempt to communicate to the Tribunal to explain her absence or seek an adjournment, I decided that it was appropriate to conduct the hearing in her absence.

3 Dr Lancaster then clarified the sequence of decision-making on the applicant’s request for access, tendered some relevant documents, and produced others for me to inspect. The full proceedings were recorded. Mr Drummond did not attend the hearing, either in person or by telephone connection. At the conclusion of the hearing, I indicated that I would affirm the decision under review. The following are my reasons for reaching this decision.

4 The applicant’s request for access under the FOI Act was dated 7 June 1999 and requested “all documents in my confidential file as well as all documents from Mr Dennis Drummond’s file which were previously in my file.” On the basis of discussions with the applicant, this was understood to refer to documents relating to a complaint of sexual harassment made by the applicant to the University. A letter from the Freedom of Information Officer dated 1 July 1999 informed her that additional time to decide the request would be needed in order to undertake consultation with Mr Drummond and to obtain information from a former EEO Manager, Mrs Durur.

5 By letter dated 12 July 1999, the applicant was notified of a decision which identified documents by way of a schedule, and provided access to many of them. Included in the list was one document for which exemption was claimed in whole under cl 6 of Sch 1 to the Act, and another in relation to which access was given with deletions reliant upon the same exemption. The letter also gave notice that in relation to three documents:

“I have deferred access in accordance with section 31(3) of the Act. In accordance with this section,

I must, and have, provided the person, information about whom you have requested in your

application, notice of the intention to release parts of relevant documentation and will therefore not

release this documentation until an assessment is made of the person’s response to the notice.”

6 By letter dated 20 July 1999 the applicant requested internal review of this determination in relation to the claiming of exemption for these two documents and the deferring of access under s 31(3). An internal review was conducted by Dr Lancaster, and by letter dated 5 August 1999 he indicated that he affirmed the decision to claim exemptions in relation to the two documents, with access to the document with deletions to be given in accordance with s 31(4) to a registered medical practitioner nominated by her. He also affirmed the decision to “defer” the three documents “until such time as Mr Drummond’s responses have been dealt with in accordance with the Act”.

7 Without waiting for a final decision on the three documents which had been “deferred”, the applicant on 11 August 1999 filed the present application to this Tribunal. It referred to the first instance determination as the decision which she wished to have reviewed, and gave the following reasons for seeking review:

“1. I want to get copies of three documents as stated in my letter written to the Vice-Chancellor dated 20 July, 1999, page 2, to which access has been deferred.

2. If the University does not send a copy of a handwritten letter dated 7 May 1999 from Mr Drummond to Mrs Durur to my family doctor in the near future, I want to get a copy of it too.

3. I disagree with the FOI Officer not to release a letter from Mr Drummond to third party copied to Ms Durur on 21 April 1999.”

8 In relation to her second reason, it appears that the University has now, in fact, sent a copy of the letter dated 7 May 1999 (with deletions) to the applicant’s family doctor. If there remains any complaint as to this, then I consider that it should more appropriately be pursued by the applicant through complaint to the Ombudsman rather than by this Tribunal, since the Ombudsman has – and the Tribunal does not have – the resources to inspect and supervise the mechanics of implementing a decision to the give access.

9 It is unclear whether the applicant sought review of the making of deletions to this letter, but I have considered these and also the full text of the second document for which exemption was claimed in full. It has been described by the applicant and review officer as “letter from Mr Drummond to third party copied to Ms Durur on 21 April 1999”.

10 Section 25(1)(a) of the Act gives a discretion to refuse access to “an exempt document”, which is defined in s 6 as a document referred to in one or more of the provisions of Schedule 1. In the Schedule, cl 6 provides:

“ Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.”

11 In my opinion, an inspection of both documents clearly reveals that the deleted or refused material in each of them is information concerning the personal affairs of a person or persons other than the applicant. Taking into account the very private nature of the information recorded, I consider that it would clearly be unreasonable to disclose the information to the world under the FOI Act. In making these judgments, I have been particularly guided by the discussion of the equivalent provision of the Commonwealth FOI Act found in the Full Court judgments in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429.

12 I have difficulty conceiving of any material which could have been tendered by the applicant (if she had appeared) which could have altered my opinion. In the event, she did not appear and no such material is before me. Moreover, I considered that the nature of the information in the documents made it is unnecessary to receive any evidence from Mr Drummond or any other third person in support of giving effect to this exemption. I concluded that on the material before me the correct and preferable decision on my part was to affirm the decision under review in so far as it concerned these two documents.

13 There is on the Tribunal’s file a letter from Mr Drummond addressed to the Tribunal and dated 15 November 1999, which supports the decision to refuse access. It is unclear to me how it came to be sent. It was not shown to the applicant, since the President took the view that it carried an implied request that it should be treated as confidential. Dr Lancaster did not tender it nor seek to call any evidence from Mr Drummond. Mr Drummond was given notice that his letter could only be taken into account by being tendered in evidence, and he was invited to attend the hearing for this purpose. He indicated that he was not available, but could be contacted by telephone.

14 As I have indicated, I was able to affirm the decision without the need to rule on whether it would be appropriate for me to take evidence from Mr Drummond by telephone and whether I would receive any of his evidence pursuant to an order under s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) preventing its disclosure to the applicant. In the circumstances of this case, I would have been most reluctant to do either of these things, even if the applicant had attended the hearing. Since I have declined to receive Mr Drummond’s letter in evidence, its tender by him is rejected. I consider that it should in due course be returned to him and that no copy should be kept on the Tribunal’s file.

15 The second aspect of the application before me challenges the decision to give effect to s 31 of the FOI Act by deferring the making of a substantial decision on the giving of access in relation to three documents. The relevant provisions are:

“31 Documents affecting personal affairs

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).

(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

(3) If:

(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and

(b) the views of the person concerned are that the document is an exempt document by virtue of clause6 of Schedule 1,

the agency shall:

(c) forthwith cause written notice to be given to the person concerned:

(i) that the agency has determined that access to the document is to be given, and

(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman,

conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and

(iii) of the procedures to be followed for the purpose of exercising those rights, and

(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.”

16 The effect of s 31(3)(d) is that a deferral of giving access is mandatory if the section’s preconditions have been correctly found to exist. The Act gives no discretion to give access before the expiry of the time indicated, which is designed to give the third person who is to be consulted time to exhaust his or her appeal rights. In my opinion, on review of a decision to implement such a deferral the Tribunal’s function under s 63 of the Administrative Decisions Tribunal Act 1997 (NSW) is to decide whether the agency decision-makers have correctly invoked s 31(3)(d) when refusing access.

17 In the present case, I have briefly inspected the three documents access to which was deferred, and am satisfied that each contained “information concerning the personal affairs of any person” other than the applicant. I am therefore satisfied that the decision-makers correctly found that they were obliged to follow the s 31 deferral and consultation procedure.

18 It would seem that a written notice was given to Mr Drummond in terms of s 31(3)(c) at the same time when the present decision under review was made, i.e. 12 July 1999. Plainly the time for him to apply for internal review pursuant to s 34(1)(ii) and (7)(b) had not then expired, so that the decision correctly decided that access to these three documents could not be given to the applicant. The decision under review foreshadowed an intention to release the three documents to the applicant with deletions, but this release and the ambit of any deletions was subject to the outcome of any appeals by Mr Drummond. As to these issues, the decision under review therefore contained only a preliminary or provisional decision.

19 At the time that the decision refusing access was affirmed on internal review, 5 August 1999, there was an outstanding application made by Mr Drummond on 3 August 1999 for internal review of the provisional decision. Access to the document was, therefore, still correctly being refused to the applicant at that time. The same situation also prevailed when the applicant sought review by the Tribunal on 11 August 1999 in terms set out above.

20 I therefore consider that the applicant’s challenge to the invocation of the deferral required by s 31 must fail, and the decisions under review should be affirmed in this respect.

21 A possible complication in the matter might appear to have arisen from the fact that, subsequent to the application to the Tribunal, on 15 October 1999 a 60 day time limit expired for Mr Drummond to appeal to this Tribunal from a decision notified to him on 16 August 1999 which affirmed the decision to release the three documents to the applicant with deletions. He made no such appeal before 15 October, and the documents were released to the applicant at some time thereafter. She was then, for the first time, in a position to discover the deletions which had been made and to consider whether she wished to appeal the merits of these. The question arises: did her present application raise this issue for the Tribunal’s consideration or did she seek to extend her application to this issue?

22 Although the decisions under review foreshadowed the making of deletions to the three documents if they were eventually released, this could only be a provisional decision, since the question of access to any or the whole of the documents had to await a final decision on the objections of Mr Drummond. A first instance decision on the material whose release was to be refused did not take its final form and effect until the expiration of the s 31(3)(d) period. In my opinion, the applicant then accrued a right to appeal that final decision on internal review and then before this tribunal. The time for such an appeal has not yet expired and in the circumstances some extension of that time might also be appropriate. In my opinion, the present application cannot be amended to include an appeal from that final decision since it occurred after the bringing of the present application. Moreover, a Tribunal review of the final decision is barred by s 53(2) which preconditions a right of appeal on internal review.

23 This reasoning might not have prevented the applicant from including in her application brought before the expiry of the deferral period a challenge to the merits of the provisional or foreshadowed decision on deletions. However, in the present case, I do not read the applicant’s application as doing this. I read it as only challenging the invocation of a deferral period, and this reading appears to be confirmed by the absence of the applicant arguing for a broader interpretation of her application for review.

24 There are some statements made by the applicant at the directions hearing on 22 November 1999, after she had received the documents, which suggest that she was going to ask the Tribunal at the hearing to rule upon the merits of the deletions. However, if she wished to do this, in my opinion it was necessary that she should appear at the hearing and apply to amend her application to extend it to the merits of the deletions. In the event, she did not appear and made no such application.

25 I therefore considered that I was not obliged to examine the merits of the deletions made to the three documents which have recently been released to the applicant, and I have not done so. I am confirmed in this approach since, as I have opined above, the applicant retains a right to seek internal review and then come back to this Tribunal on the final decision as to the ambit of the access which was given to her upon the expiry of the s 31(3)(6) deferral period.

26 For the above reasons I affirmed the decision under review.