Bennett v Vice Chancellor, University of New England

[2000] NSWADT 8

CITATION:	Bennett -v- Vice Chancellor, University of New England [2000] NSWADT 8
DIVISION:	General Division
PARTIES:	APPLICANT Dr William Bennett RESPONDENT Vice Chancellor, University of New England
FILE NUMBER:	993116
HEARING DATES:	07/10/1999
SUBMISSIONS CLOSED:	10/07/1999
DATE OF DECISION:	01/12/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Re Maher and Attorney General’s Department (1985) 7 ALD 731 Wiseman v Commonwealth, unreported, Federal Court (24 October 1989) Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 Re Burns and Australian National University (No 2) (1985) 7 ALD 425 Re Murgagh and Commr of Taxation (1984) 6 ALD 112 Re Dillon and Department of the Treasury (1986) 4 AAR 320 Re Howard and Treasurer of the Commonwealth (1985) 7 ALD 626
REPRESENTATION:	APPLICANT In person RESPONDENT A Bell (barrister) Minter Ellison, solicitors
ORDERS:	1. By consent, the University’s decision not to grant access to the two passages in the Lancaster Report identified in paragraph 10 of this decision is set aside. Instead, access is granted to these passages. ; 2. The University’s decision not to grant access to the remainder of the Lancaster Report is set aside. Instead access is granted to the entire Report.

Background

1 Dr Bennett was a Doctorate of Philosophy (PhD) student at the University of New England (the University). His thesis was initially examined in 1983 and rejected in 1990. After a series of inquiries, the University Council (the Council) resolved to award Dr Bennett a PhD on 29 July 1997.

2 On 3 August 1998 Dr Bennett lodged an application with the University under the Freedom of Information Act 1989 (“the FOI Act”). Part of the application related to a two page Report (the Lancaster Report) provided by Dr Brian Lancaster to the Council at its meeting in August 1997. Council had requested that Dr Lancaster conduct an investigation into some of the circumstances associated with the examination of Dr Bennett’s thesis.

3 The University made its decision in relation to Dr Bennett’s FOI application on 27 August 1998. That decision was to release the Lancaster Report with certain deletions. The deletions were based on exemptions in Cl 13(b) of Schedule 1 to the FOI Act which relate to confidential material and Cl 9 of Schedule 1 which relates to internal working documents.

4 On 24 September 1998 Dr Bennett requested an internal review of this decision. In seeking this review Dr Bennett made written submissions stating that the decision was contrary to an “overriding precedent” that his previous request under the Act for a similar Report, the Bryce Report, was granted in full.

5 The University communicated the result of the internal review to the applicant by letter dated 22 October 1998. That review affirmed the original decision except that two passages in the Lancaster Report which had previously been deleted were released. Apart from distinguishing between the Bryce and the Lancaster Reports, the internal review did not contain any reasoning justifying the administrator’s decision.

6 On 9 June 1999 Dr Bennett lodged an application with the Tribunal seeking a review of the administrator’s decision to refuse access to parts of the Lancaster Report. For convenience I will identify the passages over which an exemption is claimed as Items 1 to 8.

Jurisdiction

7 The Tribunal has the power to hear this matter under s 38(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 53(1) of the FOI Act. Section 38 of the ADT Act confers power on the Tribunal to review a decision if the enactment provides that applications may be made to it for a review of any such decision made by an administrator. The enactment in this case is the FOI Act. Section 53(1) of the FOI Act states that “A person who is aggrieved by a determination made by an agency or Minister under s 24 or 43 may apply to the Tribunal for a review of the determination.” In this case a determination was made under s 24 to refuse access to parts of a document. Under s 63 of the ADT Act the Tribunal may exercise all of the functions held by the administrator who made the decision and may affirm, vary or set aside the administrator’s decision.

Scheme of the FOI Act

8 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act. The agency must determine whether access is to be given or refused (s 24). One ground on which an agency may refuse access to a document is if it is an exempt document (s 25(1)(a)). An exempt document is defined in s 6 to include “a document referred to in any one or more of the provisions of Schedule 1”.

9 Section 61 of the FOI Act provides that the burden of establishing that a determination is justified lies on the agency.

Conduct of the proceedings

10 At the hearing each party was given an opportunity to speak to their written submissions. At one stage during the proceedings, I decided that it would be useful to hear the University’s specific submissions on each of the deleted passages so, pursuant to s 55 of the FOI Act, I requested that Dr Bennett and members of the public leave the room while those submissions were put. These sections of the transcript should not be made available to any person or organisation other than the University. During the closed session the University consented to the release of some parts of the document which had previously been deleted. These passages were the identification of the author of the document as “Dr BW Lancaster, Secretary to Council” and passages in the report itself. The first of these passages appeared in the third paragraph and read: “Many participants are not available to be consulted.” The second passage appeared in the first paragraph on the second page and read “A motion to award the degree was defeated. A motion to fail the thesis was defeated.”

11 Consequently, pursuant to s 63(d)(c) of the ADT Act I order, by consent, that the agency’s decision to refuse access to those parts of the document identified above is set aside and in its place a decision to give access to those parts of the document is made.

12 After the completion of the hearing a Further Statement of Professor Klaus Rohde was lodged with the Tribunal. Dr Bennett was given an opportunity to make submissions on the admissibility of this evidence and to respond. Dr Bennett lodged a Further Statement on 16 October 1999. I have taken both these statements into account in reaching my decision.

Legislation and issues

13 The exemptions on which the University relies are those set out in Cl 9 and Cl 13(b) of Schedule 1 to the FOI Act. Those clauses state that:

9(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:


(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and

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

(2) a document is not an exempt document by virtue of this clause if it merely consists of:

(a) matter that appears in an agency’s policy document; or
(b) factual or statistical material.

13. A document is an exempt document:


(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence; and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency; and
(iii) would, on balance, be contrary to the public interest.

14 The purpose of Cl 9 is to “protect the processes involved in government decision-making, by preventing disclosure of information which relates to all stages of decision-making before an actual decision is made, so as to preserve the integrity of those processes.” (Cossins A, Annotated Freedom of Information Act New South Wales History and Analysis LBC Information Services 1997 at 399) The function of Clause 13(b) is to “preserve and protect the flow of confidential information to government” where an action for breach of confidence cannot be made out. (Cossins at 349)

15 The issue to be determined is whether either or both of the exemptions set out above apply to the eight passages in the Lancaster Report which remain deleted.

Evidence and findings of fact

16 The Council is the governing body of the University pursuant to s 8 of The University of New England Act 1993. Its functions include the control and management of the affairs and concerns of the University. It comprises parliamentary members, official members (including the Chancellor and the Vice Chancellor), six members appointed by the Minister, two elected members of academic staff, two members elected by Convocation, an elected member of the non-academic staff, an elected post-graduate student and an elected under-graduate student.

17 At a Council meeting on 11 June 1997 a Notice of Motion by Mr Everett, the post-graduate representative on the Council, was listed under the heading “Confidential Agenda”. The motion was: “That council establish an appropriate body and authorise it to undertake a thorough review of all procedural issues relating to the submission and examination of Mr SR Bennett’s PhD thesis.” Council passed the motion.

18 Council appointed Dr Lancaster, the Secretary to the Council, to conduct an investigation and prepare a report. The report was a review of the processes and procedures previously adopted by Council and other committees involved in considering Dr Bennett’s thesis. The Lancaster Report was a two page report with appendices and contained factual information, expressions of opinion based on those facts, conclusions and a recommendation.

19 At the 29 July 1997 meeting of Council “Investigation of Case - Mr WR Bennett” was listed on the agenda under the heading “Confidential Items”. Council resolved at this meeting to confer a Doctorate of Philosophy on Dr Bennett.

20 In his statement of 6 October 1999, Dr Lancaster states that the Report was confidential as it was both “raised and commissioned and later presented during the confidential sessions of Council.” Mr Harris, a grazier who is a Ministerial member of the Council, stated that by listing the matter on the meeting under Confidential Items, he understood that he was not to discuss any of these matters outside Council. He says he did not discuss the matter with any person outside Council apart from the Dr Bennett.

21 There is some conflict in the evidence as to whether all non-Council members were required to leave the meeting when confidential items were being discussed. Mr Harris stated that his recollection was that at all meetings where the examination of Dr Bennett’s thesis was discussed, including the meeting of 20 June 1997, all non-Council members were required to leave the meeting.

22 Contrary to Mr Harris’ recollection, Dr Lancaster noted in his statement that “At one time it was not uncommon for the two Deputy Vice-Chancellors and the Pro-Vice Chancellor (Research) to be present during confidential sessions of Council despite not being Council members.” Dr Lancaster stated that non-Council members were bound by the same rules of confidentiality as Council members.

23 Mr Everett recalls that during the course of speaking to his motion that a review be conducted he was “challenged” by a member of the Senior Executive who was an observer during the confidential session. He states that he had previously expressed concern to Council at the practice of allowing senior staff to remain as observers during confidential sessions.

24 I prefer the evidence of Mr Everett over that of Mr Harris. Mr Everett’s recollection is more likely to be accurate because he has a specific recollection of a non-Council member being present and “challenging” him. Mr Harris was merely observing the proceedings. Furthermore, Mr Everett had raised this issue with Council previously. I also accept Dr Lancaster’s evidence that non-Council members were told that they were bound by the same rules of confidentiality as Council members.

25 The second matter which was the subject of conflicting evidence was the extent to which the Lancaster Report itself was kept confidential by Council. Dr Lancaster says that the only way the Report could be released outside of Council would be for Council to decide it was not confidential and for it to be released through the offices of the Chancellor. According to Mr Harris, Council members were given a copy of the Lancaster Report prior to the meeting. Mr Harris says that he handed back his copy of the report at the end of the meeting.

26 Mr Everett states that he retained his copy of the Report after the meeting and that Council members “routinely keep their copy of the Confidential Matters Business Paper.”

27 It is clear from Professor Klaus Rohde’s second statement that distribution of the Report was not confined to council members. Professor Rohde was Dr Bennett’s supervisor in the Department of Zoology for a number of years. He was not a member of Council. In his first statement dated 6 October 1999 Professor Klaus stated that “to the best of my recollection I have never seen the Lancaster Report.” However, in a second statement dated 11 October 1999 which was filed after the hearing, he said that he had found a copy of the Report among his files. He stated that he does not recall where he got the Report but to the best of his recollection he was not provided with a copy by the University.

28 Despite the understanding of Dr Lancaster and Mr Harris about the confidentiality of the Report, strict confidentiality between council members was not maintained. Non-council members were present during the “confidential sessions”; some council members retained their copies of the Report after the meeting and the Report was distributed to at least one non-Council member.

29 At the Council meeting in October 1997, Council discussed a request from Dr Bennett for a copy of the Lancaster Report. Mr Harris’ recollection of that meeting is that, “the strong view of the Chancellor and the rest of the Council was that the Report was produced solely for Council. It was also felt that were the Report to be released, in future, it would be difficult for any one preparing such a Report for Council to elicit full and frank information or for any such report to be prepared on a full and frank basis.”

30 Mr Everett’s recollection of the October meeting is slightly different. He recalled strong views being expressed for both releasing and not releasing the Report. Mr Everett took the view that “the prospect of disclosure would work to encourage comprehensiveness, candour, accuracy and honesty in the materials provided to Council.”

31 Dr Lancaster said in his statement that “. . . the release of this and other such ‘confidential’ documents will hinder the full and frank exchange of information within the University environment. People are obviously more guarded about what they say if it is to be released to others than those to whom they say it. Therefore, if Council wants unvarnished views and opinions provided to it in the conduct of its inquiries, then it must be able to ask for that information without concern of consequences such as public embarrassment or threat of legal action.” Similar views were put forward by Mr Harris.

32 On 24 October 1997 the Chancellor, Dr Pat O’Shane, wrote a letter to Dr Bennett declining his request for a copy of the Report. Dr O’Shane wrote, in part, that:

“Dr Lancaster’s report was considered in a confidential session of Council so that there could be an unfettered discussion of the issues. The report itself does not necessarily represent the views of Council expressed in that confidential session nor does it present any rationale for the council’s decision. To release it would give it a prominence which it does not warrant.”

Application of the law

33 Cl 13(1)(b) has three elements. An agency must establish that disclosure:

· would reveal information obtained in confidence;

· could reasonably be expected to prejudice the future supply of such information to Government or an agency; and

· would, on balance, be contrary to the public interest.

34 In order to be “obtained in confidence” the University must establish that it was “communicated and received under an express or inferred understanding that [it] would be kept confidential” (Re Maher and Attorney General’s Department (1985) 7 ALD 731 at 737). It is not necessary to consider whether any legal obligations of confidence would arise. Confidentiality need not be express and can be inferred from all the circumstances (Wiseman v Commonwealth, unreported, Federal Court 24 October 1989).

35 There are a number of factors which suggest that the Report was “obtained in confidence.” Council requested the Report and discussed it in meetings where the items were listed as “confidential.” I accept that this was intended to convey to members that the items discussed in those sessions was to be kept confidential to Council members. Although at least one non-Council member was present, I accept Dr Lancaster’s evidence that they were instructed from time to time that the discussion was confidential. Significantly, Dr Lancaster himself regarded the Report as confidential.

36 There is no direct evidence as to how the Report came into the hands of Professor Rohde. Clearly someone with access to the Report has breached confidentiality by providing him with a copy. Despite this breach of strict confidentiality among Council members, I am satisfied that information in relation to the Report was communicated and received under at least an inferred understanding that it would be kept confidential. Consequently the first element of Cl 13(b) has been satisfied.

37 The second element is that disclosure could reasonably be expected to prejudice the future supply of such information to Government or an agency. In Re B and Brisbane North Regional Health Authority ((1994) 1 QAR 279 at 341)the Queensland Information Commissioner stated that:

Where persons are under an obligation to continue to supply such confidential information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or persons must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged by withholding information) then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information. In my opinion, the test is not to be applied by reference to whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency.

38 The Lancaster Report inquired into the procedures followed by employees of the university when assessing Dr Bennett’s PhD. There are two sources of information and advice in the Report. The first is information obtained from employees who had a role in assessing Dr Bennett’s thesis. The second is the opinions and recommendation of Dr Lancaster.

39 Assessing a student’s work is part of the normal duties of academics employed by the University. Dr Lancaster was not asking them to disclose sensitive or confidential information. They were merely being asked to detail the process by which they assessed a student. It is part of the duty of every employee to obey any lawful and reasonable instructions given by their employer. An instruction by an employer such as the University to its employees to disclose the manner in which they have assessed a student is a lawful and reasonable instruction. Disclosure of information obtained from employees of the University in these circumstances could not reasonably be expected to prejudice the future supply of such information to the University.

40 The opinions expressed in the Report are those of Dr Lancaster. He does not say in his statement that he would be reluctant to provide information to Council in the future if the Report was disclosed. His statement focuses on the reluctance of “people” who are “obviously more guarded about what they say if it is to be released to others.” He went on to say that “if Council wants unvarnished views and opinions provided to it in the conduct of its inquiries then it must be able to ask for that information without concern of consequences such as public embarrassment or threat of legal action.”

41 Even if Dr Lancaster meant to imply that he, or others in a similar position, would be reluctant to provide such information in the future, I do not accept that this is the case. As an employee of the University and a member of Council, it is part of Dr Lancaster’s role to provide such opinions when requested. Dr Lancaster’s concerns about embarrassment and possible legal action are not legitimate reasons for withholding information. Consequently, disclosure of information and opinions obtained from Dr Lancaster (and others in a similar situation) could not reasonably be expected to prejudice the future supply of such information to the University.

42 Having made this finding it is not necessary to consider whether disclosure would be contrary to the public interest under this Cl 13(1)(b).

43 The second exemption clause on which the University relied was Clause 9 which relates to internal working documents. The elements of this exemption are that disclosure must:

· disclose an opinion, advice or recommendation; or

· any consultation or deliberation that has taken place

· in the course of, or for the purpose of, the decision making functions of an agency and

· would, on balance be contrary to the public interest.

44 A document is not exempt by virtue of Cl 9 if it merely consists of matters that appear in an agency’s policy document or factual or statistical material (Cl 9(2)).

45 The Lancaster Report contains factual information, expressions of opinion based on those facts, conclusions and a recommendation. It does not contain merely factual material. It was requested to assist in a decision making function of the University, namely whether to confer a Doctorate of Philosophy on one of its students. Consequently I am satisfied that the Lancaster Report complies with the conditions of Cl 9(1)(a). The next question is whether disclosure would, on balance, be contrary to the public interest.

Meaning of “public interest”

46 Public interest is not defined in the FOI Act. However, s 59A states that:

For the purpose of determining under this Act whether the disclosure of a document would be contrary to the public interest it is irrelevant that the disclosure may:

a) cause embarrassment to the Government or a loss of confidence in the Government, or
b) cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

47 In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs ((1993) 1 QAR 60) the Queensland Information Commissioner undertook a comprehensive examination of the meaning of “public interest” in relation to internal working documents.

48 I agree with the views of the Commissioner in that case and, in particular, with the view that “Unless the exemption provisions, and s.41 in particular, (the equivalent of Cl 9 of the NSW FOI Act) are applied in a manner which accords appropriate weight to the public interest objects sought to be achieved by the FOI Act, the traditions of government secrecy are likely to continue unchanged.” (para [75].Words in brackets added.)

49 In the New South Wales context, one of the objects of the FOI Act is to “obtain access to information held by Government” (s 5(1)(a)). The Act seeks to achieve this by means which include “conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (s 5(2)(b)).

50 The former Deputy Premier of New South Wales, Mr Wal Murray, made the following comments when introducing the Freedom of Information Bill to the New South Wales Parliament in June 1988:

This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility . . . It has become common place to remark upon the degree of apathy and cynicism which the typical citizen feels about the democratic process . . . This feeling of powerlessness stems from the fact electors know that many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public. The government is committed to remedying this situation." (Legislative Assembly Debates, New South Wales, 2 June 1988, p. 1399).

51 The University quoted Re Burns and Australian National University (No 2) ((1985) 7 ALD 425) in support of the proposition that public interest consideration in relation to a University differ from those applicable to government. In that case the Administrative Appeals Tribunal (AAT) considered an application by a university Professor for tapes of a University Council meeting and an external report. When examining the public interest considerations relating to a University, Deputy President Todd stated that:

But when dealing with the council of a university we are not dealing with the processes of government in the ordinary way . . . Where such a general concept as that of public interest comes to be considered in a university context that context must be taken into account. In particular, when debate and deliberation at a meeting of university council is in question, its essential character is much more like that of debate within a cabinet than within public service administration. (at 440)

52 I agree that the university context must be taken into account when applying the public interest test, but I do not agree that a University Council should be equated with or likened to Cabinet deliberations. The framers of the FOI Act did not consider the Council of a university to be sufficiently similar to Cabinet to afford such Councils the protections that are afforded to Cabinet documents and deliberations in Cl 1 of Schedule 1 to the FOI Act.

53 In Re Murgagh and Commr of Taxation ((1984) 6 ALD 112 at 123) the AAT made the following point in relation to the equivalent provision in the Freedom of Information Act 1982(Cth):

Broadly speaking, s 36 can be seen as an attempt by the legislature to protect the integrity and viability of the decision-making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs that impairment then it would be contrary to the public interest to grant access.

54 I agree with Deputy President Todd’s criticism of this passage in a subsequent case, Re Dillon and Department of the Treasury ((1986) 4 AAR 320 at 330). Todd DP commented on the vagueness of the public interest ground identified in the first sentence of the passage quoted above in the following terms:

The first public interest ground offered [by the respondent] was that there was a public interest in "protecting the viability of the decision-making process". Without more, this is too vague and amorphous a concept to be considered a legitimate public interest. It is, moreover, a tag which an agency could easily attach to any document which is sought not to be disclosed and which, if accepted, would greatly reduce the review function of the Tribunal in this jurisdiction.

Public interest considerations in this case

55 An administrator must identify the competing public interests for and against disclosure and weigh them up before determining whether to provide access to a document or part of a document (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306).

56 In their written submissions, the University identified the “two public interests in favour of disclosure” as “the public interest in the applicant having a ‘right to know’ of the information as well as the public interest in the transparency of the decision making processes of public authorities.” The University went on to submit that these factors “must be weighed against the contrary public interest of the maintenance of the ability of a university Council to effectively exercise its powers and functions.” The University maintained that: “In sensitive matters, the importance of maintaining the integrity and authority of Council’s decision-making process, is essential to its (sic) effectiveness of the process and overall stability of the University.”

57 Focusing first on the public interests in disclosure, in general these interests are in enhancing the openness, accountability and responsibility of an agency. There was no evidence that the University had provided Dr Bennett with any reasons for deciding to award him a PhD 14 years after it was submitted and 7 years after it was “finally” rejected. Consequently Dr Bennett has no way of knowing the reasons for this inordinate delay or the basis for the final decision. Dr O’Shane has stated that the reasons for the Council’s decision are not necessarily based on Dr Lancaster’s views. Nevertheless they are views of a member of Council based on his investigation of the process. In the particular circumstances of this case the revelation of the facts and opinions in the Report will assist Dr Bennett in determining whether the University has acted in accordance with the principles of sound administration in assessing his thesis. If the University does not believe that the Report reflects the real reasons for their decision, it would be open to them to provide those reasons.

58 Even though this interest appears to relate only to Dr Bennett, closer examination reveals that it has wider community implications. The Queensland Information Commissioner stated in Re Eccleston that:

While in general terms, a matter of public interest must be a matter that concerns the interests of the community generally, the courts have recognised that: "the public interest necessarily comprehends an element of justice to the individual" (per Mason CJ in Attorney-General (NSW) v Quin (1990) 64 ALJR 627). Thus, there is a public interest in individuals receiving fair treatment in accordance with the law in their dealings with government, as this is an interest common to all members of the community. (at para [55])

59 Despite the fact that Dr Bennett has now been awarded a PhD, there is a public interest in him and others have access to information which is relevant to the question of whether he was treated fairly by the University in the manner in which they assessed his PhD.

60 The public interest considerations which support non-disclosure were set out in the University’s evidence and submissions. Although the University’s submissions did not mention the case of Re Howard and Treasurer of the Commonwealth ((1985) 7 ALD 626) several of their arguments correspond with factors listed by the AAT in that case as being relevant to the public interest test. The third of the Howard factors is that disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.

61 Part of the University’s evidence, given by Dr Lancaster was that, “if Council wants unvarnished views and opinions provided to it in the conduct of its inquiries, then it must be able to ask for that information without concern of consequences such as public embarrassment or threat of legal action.” As discussed above, s 59A specifically excludes the issue of public embarrassment as a factor to be considered in determining whether disclosure would be contrary to the public interest. The threat of legal action is not a legitimate basis for withholding information.

62 I note the comment of the Queensland Information Commissioner expressed in Re Eccleston in relation to the “candour and frankness” argument:

The third of the five Howard criteria, the "candour and frankness" argument has been viewed with a healthy scepticism by most presiding members of the Commonwealth AAT. Indeed some have made remarks which suggest that inhibition of candour and frankness is unlikely ever to suffice as a ground of injury to the public interest that would justify non-disclosure of documents under FOI legislation (see for example Re VXF and Human Rights and Equal Opportunity Commission (1989) 17 ALD 491 at p.504-5, paragraphs 48 and 52; Re Sunderland and Department of Defence (1986) 11 ALD 258 at 263) (at para [124]).

63 I share the Queensland Information Commissioner’s opinion expressed later in the decision.

Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. . . . In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act. (para [134])

64 Dr Lancaster’s position as Director of Human Resource Services with the University and Secretary to the Council, is analogous to that of a professional public servant. There is an absence of “clear, specific and credible evidence” that the substance or quality of his advice (or the advice of employees in a similar position) would suffer by the threat of disclosure under the FOI Act. As discussed above at para 40-41, there was no direct evidence that Dr Lancaster or others in a similar position would be reluctant to provide advice to the Council in future. Even if it is accepted that they would not be as open in their comments, the rationale given for this (embarrassment and the threat of legal action) are not legitimate. Nor is there any direct evidence (as distinct from assertion) that disclosure could inhibit candour and frankness from other employees, such as academics, whose duty it is to assess the work of students.

65 The fifth factor mentioned in Re Howard and reflected in the University’s submissions is that disclosure of documents which do not fairly represent the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision making process. Dr O’Shane made the point in her letter to Dr Bennett that “The report itself does not necessarily represent the views of Council expressed in that confidential session nor does it present any rationale for the council’s decision.”

66 Dr O’Shane appears to be inferring that if the Report was disclosed, Dr Bennett and others would assume that Dr Lancaster’s views are the views of Council. I do not think that such an inference is open. The Report discloses that Dr Lancaster is the author and that he is making recommendations to Council. In addition, Dr Bennett knows that Council came to an independent decision at a Council meeting.

67 A second implication which may be read into Dr O’Shane’s statement is that Dr Lancaster’s Report should not be given prominence because it was merely a preliminary document which was subsequently subsumed by Council’s decision. The Lancaster Report was not an interim or preliminary document in any sense. It represents the views of Dr Lancaster and is a final Report to Council. Consequently this case can be distinguished from the situation in Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589, where the AAT found that the release of drafts of correspondence would damage the integrity of the decision making process.

68 The final public interest consideration given by the University to justify non-disclosure was the preservation of the integrity and authority of the decision making process of Council. They submitted that it is essential that “Council is able to freely request investigations and review any matters of significance to the University and its operations. . . Without the ability to exercise its investigative and decision-making powers uninhibited, the Council would not be able to make decisions on matters with serious implications for the operation and responsible management of the University.” They go on to submit that “disclosure of the material in question would seriously damage the relationship between the arms of the University - the Council, the Executive and the University community at large.”

69 As pointed out by Todd DP in Re Dillon, (and quoted at para 54 above) the integrity or viability of the decision making process is “too vague and amorphous a concept to be considered a legitimate public interest.” However, when the University’s submission is analysed further it is based, to some extent, on the impact on “frankness and candour” which disclosure would mean. This argument has been dealt with and rejected in paragraphs 61-64 above.

70 The University relied on the decision in Re Burns and Australian National University (No 2) ((1985) 7 ALD 425) to support their submissions in relation to public interest. In that case the AAT held that tapes of meetings of the Australian National University Council amounted to internal working documents and that there is a public interest in non-disclosure of tapes of council meetings. Todd DP stated that:

There is in my opinion a public interest in the governing bodies of Australian universities, largely public funded, performing their statutory duties efficiently and properly. Given the nature of such governing bodies, and the weight and variety of problems with which they have to deal there are reasonable grounds for a claim that they would be seriously inhibited in their decision-making processes if the free flow of debate and deliberation at Council meetings were impeded by making that debate and deliberation public.” (at 339-440)

71 This analysis is consistent with the policy basis of Cl 9 which is to protect the processes involved in government decision-making, by preventing disclosure of information which relates to all stages of decision-making before an actual decision is made, so as to preserve the integrity of those processes. However, the passage quoted above relates to tapes of the actual conversations in a council meeting, not to the contents of a report before Council.

72 The Council should be able to commission and take into account investigations, opinions and recommendations before coming to a decision on any matter. They should not have to reveal their “thought processes” in coming to such a decision. However, they are not being asked to do so in this case. All that is being requested is access to a document which represents the views of one council member. Disclosure of this document cannot affect the integrity of the decision making process, especially when the decision has now been made. If the Report was still under consideration, there would be a stronger argument for non-disclosure on the basis that the integrity of the process should be preserved. (See Re Lianos (1985) 2 AAR 503.)

73 The University also submits that disclosure would undermine the “authority” of Council’s decisions. Reference is also made to maintaining the “overall stability of the University.” Neither of these arguments is convincing. It is not in the public interest that the community should unquestionably accept the “authority” of Council decisions. Neither can the fact that disclosure may de-stabilise relationships between the executive, Council and the community be a reason for non-disclosure. Freedom of Information legislation is designed to open up the decision making process of agencies and allow those processes to be scrutinised so that agencies are accountable for those decisions. These objectives are not consistent with promoting blind acceptance of Council’s authority or avoiding instability.

Balancing the public interest considerations - factual material

74 In relation to the factual material, no specific submissions were put by the University as to the public interest considerations for or against disclosure. In Re Eccleston, the Queensland Information Commissioner stated in relation to factual material that:

Disclosure of the kind of information referred to in s.41(2) will not compromise the deliberative processes of government agencies, and will serve to some extent to inform members of the public of the nature of those processes, and perhaps if they are so inclined, to contest the validity of, or seek to correct errors in, the factual and technical assumptions on which government decisions are made. (at para [32])

75 Based on this reasoning, I can see no justification for withholding any factual material contained in the Report. The integrity of the Council’s decision making processes cannot be adversely affected by disclosure of factual information about the process by which Dr Bennett’s thesis was assessed. Furthermore there is a strong competing public interest which favours disclosure, namely assisting in the process of discovering whether the University has acted in accordance with the principles of fairness and sound administration in assessing Dr Bennett’s thesis.

76 Consequently Item 5, the second and third sentences in the final paragraph on page 1 of the Report, and the first sentence of Item 6 which is the second last sentence of the first paragraph of page 2 of the Report, should be disclosed.

77 Based on the information presented to me and discussed above, I can see no genuine public interest argument which should outweigh the public interest in disclosure of the relevant passages of the Report. The fact that the decision is that of a University Council is not, in my view, materially different from a decision made by a government agency. Dr Lancaster’s opinions and recommendation do not reflect favourably on the University’s processes. Their disclosure will no doubt cause some embarrassment to the University. But I have been unable to identify any other consequence which would outweigh the public interest in enhancing the openness, accountability and responsibility of the University.