CDJR and Australian Research Council

[2012] AATA 524

[2012] AATA 524

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1331
Re	CDJR
APPLICANT
And	Australian Research Council
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	9 August 2012
Place	Hobart

The Tribunal grants the application for confidentiality and makes the following orders:

1. That the publication of the applicant’s name be prohibited. 

2. That the name of any university referred to in the interlocutory reasons for decision in the application to reinstate and the application for an extension of time be identified as “the university”.

[Sgd Ms A F Cunningham]

Senior Member

FREEDOM OF INFORMATION – application for confidentiality - not opposed by respondent – applicant contends detrimental impact on career - application granted

Freedom of Information Act 1982

Administrative Appeals Tribunal Act 1975, ss 35(2), (3)

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

REASONS FOR INTERLOCUTORY DECISION

Ms A F Cunningham (Senior Member)

1. The applicant had filed an application for the review of a decision of the Australian Research Council (ARC) with respect to a request under the Freedom of Information Act 1982 (FOI Act). Following a request from the applicant to withdraw, the Tribunal dismissed his application for review on 14 May 2010. On 15 February 2012 the applicant advised the Tribunal that he had been misled into withdrawing his application and subsequently made an application for reinstatement or alternatively, an extension of time in which to lodge a new application. The applications were opposed by the respondent.

2. Just prior to the Tribunal handing down its decision on the applications for reinstatement and extension of time, the applicant made an application for a confidentiality order prohibiting the publication of his name and the name of any university in which he had previously or currently been employed. 

3. The reasons for his application can be relevantly summarised as follows: 

• as a teaching academic with more than 500 students per year and in his current role as head of a large university department, the publication of his name might influence his relationship with his students and compromise his leadership role. 

• knowledge of his application may impact on his future career prospects. 

• knowledge of his application and dispute with the ARC may influence the decision of the many consultants who are contracted to the ARC.  

• publication of his name may confuse the public and cause them to question his achievements which were recently referred to in a publication in the Canberra Times.  The publication of his name may have a detrimental effect on his career prospects.

• publication of the names of universities where he has been or is currently employed may detrimentally impact on his career prospects.

1. In considering an application to prohibit or restrict the publication of the names of persons appearing before the Tribunal, section 35(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), subsection (3) directs that:

   “The Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings or proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted”.

2. From the outset the applicant has asked that his FOI request be kept confidential.   His stated reasons being the potential impacts on his career and future applications for funding.  The applicant was advised by the ARC in a letter dated 5 November 2009 that it could not guarantee confidentiality and that the relevant university may be made aware of his request for access to certain documents.  Prior to this letter being sent to the applicant however, the university had been made aware of his FOI request.  This caused the applicant to make a complaint to the Privacy Commissioner and was the subject of a separate application to the AAT.  The applicant contended that this breach of privacy had caused him a deal of trouble.

3. The Tribunal acknowledges the principle that the Tribunal must generally conduct its proceedings in public and that the interests of maintaining public confidence in the fairness and integrity of proceedings demands that the Tribunal should only depart from such an approach if it is satisfied that there are proper and cogent reasons for doing so.  As the Tribunal commented in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at page 55 the powers conferred by section 35(2) “are there to be exercised, albeit sparingly”.

4. The applicant submits that it is important that the reasons for the Tribunals decision be published but contends that publication of his name could have a detrimental impact on his career.  It is relevant to consider the nature of the application before the Tribunal in the context of public accessibility to the Tribunal proceedings.  The nature of the application before the Tribunal is one made pursuant to the provisions of the FOI Act which contains provisions with respect to restricted release of information, personal privacy, public interest and so forth.  The applicant’s request for privacy which accompanied his request for information, was acknowledged by the ARC which accepted that it could not reveal the identity of an FOI applicant to third parties.

5. The applicant’s application for confidentiality was not opposed by the respondent.  On balance the Tribunal finds that the potential for a detrimental impact on the applicant’s career outweighs any public interest in requiring that the applicant’s name be published. 

6. For these reasons the Tribunal grants the application and makes the following orders:

   1.        That the publication of the applicant’s name be prohibited. 

   2.That the name of any university referred to in the interlocutory reasons for decision in the application to reinstate and the application for an extension of time be identified as “the university”.

I certify that the preceding 9 (nine) paragraphs are a true copy of the interlocutory reasons for the decision herein of Ms A F Cunningham (Senior Member)

[Sgd]

Administrative Assistant

Dated 9 August 2012