Battin v University of New England
[2013] NSWADT 73
•05 April 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Battin v University of New England [2013] NSWADT 73 Hearing dates: On the papers Decision date: 05 April 2013 Jurisdiction: General Division Before: P H. Molony, Judicial Member Decision: 1.Set aside the decision under review
2.Remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 28 days of publication.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
University of New England Act 1993Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180
AWB v Cole [2006] FCA 1234
Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
FCT v Pratt Holdings at 279-280
Hurst v Wagga Wagga City Council [2011] NSWADT 307.
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Seven Network Limited v News Limited [2005] FCA 142
Waterford v Commonwealth [1987] HCA 25
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2Category: Principal judgment Parties: Dr Tim Battin (Applicant)
The University of New England (Respondent)Representation: T Battin (Applicant, In person)
University of New England , Legal Officer (Respondent)
File Number(s): 123150
REasons for decision
Introduction
Tim Battin has made an application to the Tribunal to review a decision made by University of New England (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 23 May 2011.
Dr Battin sought access to information relating to complaints about an Internet survey "Perceptions of Bullying in the Workplace" that he and a number of other researchers had obtained research approval for from the Agency's Human Research Ethics Committee (HERC). That approval was revoked following the complaints.
The Agency identified 44 documents as responsive to the request. Of those Dr Battin was:
- Granted access to six documents.
- Refused access to thirteen documents on the ground that there was a conclusive presumption that their release is not in the public interest because they are subject to legal professional privilege.
- Refused access to the remaining documents on the basis that on balance the public interest consideration against disclosure outweighed those in favour of disclosure.
That decision was then the subject of a review by the Information Commissioner who made certain recommendations to the Agency on 14 May 2012.
Following the review Dr Battin applied for external review of the Agency's decision by this Tribunal on 6 June 2012.
Material before the Tribunal
In making this determination the Tribunal has considered the following material:
- The internal review decision.
- The Information Commissioner's recommendation on review.
- Dr Battin's original and supplementary submissions.
- The Agency's original and supplementary submissions.
- The documents identified by the Agency as responsive to the request that were provided to the Tribunal on a confidential basis.
Despite being given an opportunity to do so neither party filed any witness statements. Essentially. The Agency relied on the information in issue, supported by submissions, to demonstrate its case.
With the parties agreement I determined that this was a matter that could be determined without a hearing, on the papers. I remain of that view.
The Government Information (Public Access) Act 2009
The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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.
'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(c) a public authority." Public authority is in turn is defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Agency is such a body being established by the University of New England Act 1993. It is therefore an agency to which the GIPA Act applies.
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 that information, 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' that are set out in Schedule 1 (s 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (s 14(1)).
With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -
Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct
There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -
There is an overriding public interest against disclosure of 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.
In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply -
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -
The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has not issued any such guidelines.
The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Responsible and effective government", "Individual rights, judicial processes and natural justice" and "Business interests of agencies and other persons in the Table to s 14. They are -
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
...
(f) 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 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
...
(f) expose a person to a risk of harm or of serious harassment or serious intimidation,
...
4. Business interests of agencies and other persons
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
...
(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
...
Personal information is defined in clause 4 of Schedule 4 -
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
Reveal' is defined in Clause 1 of Schedule 4 -
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5).
Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides -
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
An access application is to be determined in accordance with s 58 -
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
In exercising functions under the Act s 3(2) instructs that -
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.
Section 73 requires that access be unconditional. Section 78 is concerned with the form of access.
Section 80 sets out a series of decisions that are reviewable decisions under the Act. It provides -
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).
Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).
Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -
(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides -
(1) In determining an application for ADT review, the ADT 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.
(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
...
LEGAL PROFESSIONAL PRIVILEGE
Clause 5 of Schedule 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.
In the present case the privilege is claimed with respect to nine documents. Those nine can be divided into two bundles for the purpose of consideration. First documents 1,2, 3, 4, 7, 10, 11,12 and 15 which relate to events that occurred before the HERC decided to revoke research approval, and, secondly, documents 40, 42, 43, and 44 which that occurred after that event.
As there is no suggestion that there was any litigation in progress or prospect with respect to the research survey the Agency's privilege claim must be based on legal advice privilege, rather than litigation privilege. Section 118 of the Evidence Act 1995 provides:
'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.'
A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides:
(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) ...
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means:
(a) an Australian lawyer, and
(b) an Australian-registered foreign lawyer, and
(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and
(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
...
It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of the GIPA Act reviews that is consistent with the burden placed on the Agency by s 105(1).
In some cases it will be obvious from an examination the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the documents created after HERC revoked the research approval (documents 40, 42, 43, and 44). It is not however the case with the documents created before the revocation, where the precise nature of the communications, and of any advice sought, is unclear.
A factor common to all of the documents created before HERC revoked approval, is that a legal officer in the employ of the Agency was either the recipient (or one of them) or the creator of them. The fact that an in house legal officer is a party to a communication does not automatically mean that communication relates to the provision of legal advice. In house legal officers can perform a variety of functions, be they administrative, commercial or legal, and can express view with respect to each of those matters. It is incumbent on an agency asserting that a legal officer has given legal advice to demonstrate that dominant purpose of the communication was the provision of legal advice, and that the legal officer concerned had an appropriate degree of independence: see Seven Network Limited v News Limited [2005] FCA 142 at [4], per Tamberlin J, and Waterford v Commonwealth [1987] HCA 25.
The documents created before the revocation of the research approval by HERC (documents 1, 2, 3, 4, 7, 10, 11 ,12 and 15) do not obviously relate to the provisions of legal advice. The Agency has not adduced any evidence concerning the dominant purpose for which the communications were created. While there is a reference to legal advice having been sought in one of those documents, there is no indication of what advice was sought and no evidence that the provision of legal advice was the dominant purpose of the communications. The Agency has not put on any evidence that would justify that conclusion. As a consequence its claim for legal advice privilege with respect to documents 1, 2, 3, 4, 7, 10, 11,12 and 15 fails.
Public interest consideration in favour of disclosure
With respect to the remaining documents, the Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5).
Public interest considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited.
In my view the following public interest considerations in favour of disclosure apply when considering documents 4 and 5 -
- The general public interest in favour of disclosure of government information.
- Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance the Agency's accountability, and contribute to positive and informed debate on decision making by the Agency's HERC, an issues of public importance. It is also clear that the efficient, effective, and ethical fair consideration of human research proposals is of importance to the community general, and to the academic and research community in particular..
- Disclosure of the information could reasonably be expected to inform the public about the operations of the Agency, particularly with respect to its HERC. The information is in issue concerns the investigation and consideration of complaints to the HERC concerning a research proposal, examining bullying within the Agency, for which it had already granted research approval. It is reasonable to conclude that disclosure of that information will inform public debate about those processes and promote discussion of a matter of public concern: the revocation of research approval for research into workplace bullying at the University by the University's own HERC.
Public interest considerations against disclosure
The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Dr Battin access to information, it has the burden of establishing that each of the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
In submissions the agency identified four public interests considerations against disclosure upon which it relied. They are that disclosure of the information could reasonably be expected to have one or more of the following effects:
- found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,
- reveal an individual's personal information,
- expose a person to a risk of harm or of serious harassment or serious intimidation,
- prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
It is necessary to consider each of those public interests considerations against disclosure separately.
Could reasonably be expected
Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. 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 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (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.
Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] -
... 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" when it is used in s 58(5) of the Act.
See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.
It is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.
Disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence
This is found at point 1(f) of the Table to s 14.
In submissions the Agency noted that a number of complainants had indicated that they wished to have their complaints treated in confidence. It argued that release of all the remaining information would disclose documents provided to the Agency in confidence.
On my reading of the information it appears that one complainant has asked that his complaints be treated confidentially on a number of occasions. Other complainants have not. Not all the remaining documents are complaints. Only parts of documents 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26, 29, 30, 31, 33, 34, 35 and 36 contain complaints, or information relating to them.
In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 the Appeal Panel said with respect to confidential information that at [33] -
In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received
The Agency has referred me to its Code of Conduct for Research which sets out principles and requirements applicable to research conducted by students and staff, defines research misconduct, and provides procedures for dealing with complaints in research matters. This document does not specifically deal with HERC, or make provision as to complaints to HERC. Interestingly it does provide that persons who are the subject of a complaint leading to a research misconduct inquiry should be informed of the complaint (5.2.2) which is to be completed with "such confidentiality as the circumstances of the complaint permit." I note that the Agency's general Code of Conduct contains a number of provisions aimed at ensuring the confidentiality of personal and confidential information.
The Agency noted that the survey in issue advised that complaints "about the manner in which this research is conducted" should be referred to the Research Ethic's Officer. It submitted that this suggested that complaints would be confidential from the researchers.
The Agency has not filed any other evidence going to the issue of confidentiality. This is unfortunate.
Having read the documents concerning which confidentiality is claimed and the various codes of conduct, I have come to the conclusion that the confidentiality which the Agency accords to complaints relates to identifying information relating to the complainants, rather than the substance of the complaints.
I accept that there is a public interest consideration against disclosure of identifying information relating to complainants. By identifying information I refer not only to directory information (name, address, phone number, age and birthdates) but to information that would allow the identity of the complainant to be reasonably ascertained.
I also note that disclosure of the documents over which the Agency claims legal professional privilege alone would result in the disclosure of identifying information relating to complainants.
Disclosure of the information could reasonably be expected to reveal an individual's personal information
Personal information is defined in clause 4 of Schedule 4 of the GIPA Act -
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The agency submits that documents remaining (excluding those it claimed where subject to legal professional privilege or has released) all contain personal information relating to complainants. I accept that is the case with respect to documents 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26, 29, 30, 31, 33, 34, 35 and 36.
I also note that disclosure of the documents over which the Agency claim legal professional privilege alone would result in the disclosure of personal information relating to complainants.
Disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation
Once again the Agency claims that this public interest consideration against disclosure applies to all the information (excluding that it claimed was subject to legal professional privilege or has released).
In submissions the Agency wrote -
Again, as evidence by the Documents, many of the complainants expressed their concern that a disclosure of their complaint could result in retribution of the NTEU. Accordingly there is a public interest consideration against disclosing the identity f the complainant ...
I do note the internal review determined that Dr Battin was associated with the union (NTEU).
Having read the documents I do not accept that many of the complainants have expressed concern about retribution: only a number have.
Once again the Agency has not put on any evidence in support of this claim that would enable me to form a view as to the likelihood of such retribution, and whether it would constitute a risk of harm or of serious harassment or serious intimidation. In the absence of such evidence I am not satisfied that this public interest consideration against disclosure is made out.
Disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
The Agency claims that this public interest consideration against disclosure applies to all documents remaining (excluding those it claimed where subject to legal professional privilege or has released). It made a series of submissions going to the need to ensure the integrity and effectiveness of the HERC's processes by ensuring the confidentiality of complainants.
Irrespective of the correctness or otherwise of that submission, this public interest consideration against disclosure is specifically concerned with protecting the conduct, effectiveness and integrity of any research by revealing its purpose, conduct or results. Here it is not the research that the Agency is seeking to invoke the public interest consideration against disclosure in aid of, but the processes of a separate ethic committee. What is sought to be protected are the process and conduct of that committee, not the research.
In my opinion this public interest consideration against disclosure has no application in these circumstances.
Balancing the public interests
I found that legal professional privilege attached to documents 40 to 44 and as a result there is a conclusive presumption that their release is not in the public interest.
I have found the following public interests considerations against disclosure apply to a large number documents (including some originally claimed to be privileged):
- Disclosure of identifying information with respect to complainants could reasonably be expected to disclose information provided to the agency in confidence.
- Disclosure of the information could reasonably be expected to reveal an individual's personal information
In my view, given the nature of the information in issue, these factors carry significant weight.
The public interests considerations against disclosure are to be weighed against the public interests in favour of disclosure of information outlined above. Each of them carries its own weight in favour of disclosure which is real and not insignificant. Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council [2011] NSWADT 307.
In my judgment the public interests considerations against disclosure outweigh those in favour of disclosure in this case with respect to the information in issue. There is therefore an overriding public interest against disclosure of the identifying information.
I do note however that s 74 relevantly provides -
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
In my view identifying information relating to complainants could be readily deleted from those documents, without rendering them nonsensical. The release of the balance of the documents would clearly be in the public interest and in accordance with the principles underlying the GIPA Act.
Conclusion
I summary it is my view that the correct and preferable decision in this case is to:
Set aside the decision under review
Remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 28 days of their publication.
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Decision last updated: 05 April 2013
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