Chen v University of New South Wales (No 3)

[2009] NSWADT 305

CITATION:	Chen v University of New South Wales (No 3) [2009] NSWADT 305
DIVISION:	General Division
PARTIES:	APPLICANT Juchuan Chen RESPONDENT University of New South Wales
FILE NUMBER:	053403
HEARING DATES:	30 June 2009 and 18 September 2009
SUBMISSIONS CLOSED:	18 September 2009
DATE OF DECISION:	8 December 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Discretionary power to grant access to exempt documents.
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Chen v University of NSW [2008] NSWADT 244 Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1. The directions hearing listed for 2:30 pm on 09.12.09 is confirmed.

REASONS FOR DECISION

1 The applicant has commenced these proceedings seeking access to certain documents held by the respondent in relation to which the respondent has refused access by relying upon several of the exemptions for which the legislation provides. The documents have been segregated into 8 groups, some groups containing numerous folios and others containing volumes of individual documents.

2 The Tribunal held in an earlier decision in the proceedings, Chen v University of NSW [2008] NSWADT 244, that each of the several documents sought by the applicant fall within the protected disclosures exemption (clause 20(1)(d), Schedule 1, Freedom of Information Act (NSW) 1989), given the breadth of this particular ground for exemption. Consequent upon this decision the parties addressed the question of access being granted upon discretionary grounds. This question arose upon the making of this earlier decision by reason of the power to refuse access being discretionary. A further hearing was convened for this purpose on 30.06.09, this being a course that the parties had earlier requested, following which the Tribunal reserved its decision as noted below.

3 By the time of the hearing on 30.06.09 the respondent had adopted a different position with respect to a number of the documents being sought. In general terms, the respondent was then of the view that, with the exception of document number 3 (containing seven separate reports), it could properly release the documents under review, subject to certain limitations which, the respondent expected, would be acceptable to the applicant. By the time of the hearing though, the position was not entirely clear and it appeared that the parties may well require further discussion and negotiation before this aspect could be determined by consent. For this purpose, the proceedings were stood over for further consideration on 18.09.09. However, as it eventually turned out the parties did not reach a firm consensus in relation to these additional documents sufficient to enable the Tribunal to make any clear determinations by consent. Consequently, all documents require a determination by the Tribunal, although to different extents.

4 As noted above, at the hearing on 30.06.09 the parties treated document number 3 as being in issue in any event, and as being a document in relation to which the Tribunal would eventually have to make a determination. Submissions were made on that day in relation to the grant of access to this particular document, whereupon the Tribunal reserved its decision in relation to this document. The remaining documents were further considered at hearing on 18.09.09.

5 As the authorities now stand, the Tribunal has the power to grant access to documents even though they fall within clause 20(1)(d). The nature of this power, and matters relevant to its exercise, are developing as time goes by. A finding that a document is an exempt one serves to entitle a decision maker to refuse to grant access, but does not require that refusal should follow. Such a finding is a condition precedent to activating the power to refuse. However, it has been authoritatively said that there should be strong grounds justifying the overriding of the exemption (Cianfrano v Director General, Premier’s Department [2007] NSWADT 216). Implicit in this statement is the clear relevance of the circumstances which give rise to the exemption to the exercise of the discretionary power: those circumstances not only enliven the power to refuse access but they play a part in the exercise of the discretion as well. Strong grounds are needed before the power may be properly exercised in favour of granting access.

6 Although the parties submissions to date focussed on the application of the protected disclosures exemption, the respondent has not abandoned the other grounds of exemption that it advanced, namely, that the documents fall within the confidential, personal and business affairs exemptions, although not all of these additional grounds apply to each of the documents in question and although not all grounds were pressed by the respondent with equal strength. The internal working documents exemption, initially claimed, was abandoned at hearing. As the Tribunal has held that the protected disclosures exemption applies to them all it is not strictly necessary to determine whether the other grounds also have application as the protected disclosures exemption is sufficient to engage the power to refuse access. However, the circumstances that are relevant to the respondent’s other claims for exemption remain relevant to the Tribunal’s discretionary powers and must be taken into account with respect to the documents to which they apply.

Document No. 3

7 The general factual background is well known to the parties and has been set out in the Tribunal’s earlier decision. Briefly, the respondent conducted an enquiry into complaints made against one of its senior staff. The several documents under review came into being during the course of this enquiry itself and during the course of a subsequent review of the enquiry process. As the Tribunal has earlier held, the complaints themselves were such that clause 20(1)(d) was brought into play in relation to the documents that the applicant seeks. Document number 3 is a collection of expert reports that were prepared by third parties to advise and assist the respondent as part of the enquiry process. Not all were in fact requested by the respondent. However, by reason of the factual nexus between Document 3 and the complaints, Document 3 itself falls within clause 20(1)(d) for the reasons given in the Tribunal’s earlier decision.

8 There are two matters of relevance pertaining to each of the several reports in Document 3. First, the circumstances relevant to the additional grounds of exemption claimed must be considered. Each report was, more likely than not, given in confidence to some degree, at least. The extent of the confidence, and any qualifications to it, is not dealt with clearly in the evidence and therefore precise factual findings are not properly available. However, the confidential nature of the reports, which is established, must be taken into account when the Tribunal exercises its discretionary powers, as the respondent properly argues. The applicant does not dispute this. Secondly, each report contains the names of the makers of the original complaints so that to disclose the reports in full would clearly identify the persons who made those complaints.

9 These several factual matters, the respondent contends, give rise to public interest considerations that are important in the exercise of the Tribunal’s discretion. First, there is the public interest in maintaining matters of confidence and personal, and business, privacy, otherwise the ability to obtain reports like these is impeded to a significant degree and relevant privacy considerations are ignored. Secondly, the makers of the original complaints are entitled, pursuant to statutory prescription, to maintain their anonymity. Both the factual matters and the public interests they give rise to are, no doubt, important and relevant considerations which favour refusing access to the document under consideration. The respondent has developed these considerations in its submissions (exhibit RD 1) and has set out its arguments in a detailed exposition.

10 It is certainly true that subsequent disclosure of any information given in confidence could possibly impede the giving of information in relation to future matters. This result does not always necessarily follow of course, and much will depend on the circumstances bringing about the act of disclosure and the nature of the confidential information itself. In the present case, the reports were prepared by persons who may be regarded as experts and they were prepared by way of commentary on the acts of the person under review and as commentary on the investigative process itself. The investigation was in fact concluded some time ago. In these circumstances there is very little likelihood that releasing these reports in full would impede in any way the ability of the respondent to obtain similar assistance in the future in relation to any matters that it then has under consideration. In the Tribunal’s view there is no real chance that this detrimental consequence would in fact ensue by granting full access to copies of the particular documents here under consideration even though this would be to reveal the names of the persons who prepared the reports. For the same reasons, granting access to these reports would not unduly reveal matters of personal opinion, nor matters of business importance, given the purpose for which they were prepared. Equally, the fact that these several reports were prepared to assist the respondent’s deliberations, and therefore have the quality of being working documents, in one sense, is not of great moment for discretionary purposes. Reports like these only have any forensic value if they are open to scrutiny: to the extent that they remain secret this fact will detract from the integrity of any investigative process.

11 However, the position of the complainants is of more significance. They are entitled to remain anonymous by statutory prescription, although this entitlement is subject to the provisions of the Freedom of Information Act 1989. Although this point was not the subject of submissions, it appears that the better view is that a protected disclosure is but one of the exemptions in the Freedom of Information Act 1989 which are subject to the discretionary power to release even exempt documents. In the absence of argument, the approach of the Tribunal in earlier decisions on this point should be followed so that the Tribunal accepts that it has a discretionary power to grant access to documents even though they may reveal matter relating to a protected disclosure.

12 However, the anonymity of a maker of a protected disclosure nevertheless remains a matter of significance which tells against the granting of access. There must be good reason why access is granted in face of the statutory protection. In this regard the applicant refers to the developments occurring during the course of the enquiry process itself and the need to ensure the integrity of the process and the reasons for decision in the eyes of interested persons.

13 The investigation undertaken by the respondent was a complicated and protracted matter. Several reports were commissioned from time to time to address issues which the respondent wished to consider. What is important here is that the findings, views and recommendations expressed in the reports were not unanimous: significant differences between some of the reports are clearly evidenced. A natural consequence of this is that interested persons wished to view all documents that came into being during the investigation in order to assess the integrity of the investigative process. The applicant was such a person. Clearly there is a public interest associated with such circumstances: an investigation of this nature, being an investigation into an institution of the respondent’s ilk, and being one conducted by the respondent itself, is one that attracts public interest and concern (see, for example, the discussions in the press releases contained in exhibit AD 2). The applicant’s submissions (exhibit AD 1) elucidate the type of concerns that an interested party may well have with the investigative process undertaken in this case by the respondent. Moreover, given the respondent’s status as a major educational institution, there is a clear public interest favouring the granting of access to the documents: not only must this type of investigation be in fact properly conducted and determined, it must be seen as such. There is no utility, and no public benefit, in conducting an enquiry process that remains obscured by a cloud of suspicion. There is a parity here with the openness of Court proceedings. Legal proceedings cannot be conducted in private as openness is critical to integrity and public acceptance of the process and final determination.

14 This public interest favouring disclosure is quite strong in the circumstances and it is sufficiently strong here so as to be paramount to the interests arising from confidentiality and privacy considerations. It would also be paramount to the protections afforded to the makers of the protected disclosures provided their names and addresses were deleted from the copy documents to which access is given. As noted, the applicant is content with such deletions.

15 The respondent pursuant to direction wrote to each of the seven makers of the reports within document No. 3 advising them that they may appear in the proceedings should they so wish (exhibit RD 1). Six responses were received which appear in exhibit RD 2 (paragraph11 and 12 and annexure at pages 2 to 7). None of the makers appeared in the proceedings. The six responses were as follows: no interest in the proceedings; preferred that name and report not be released as the report was confidential, but if released then so be it; did not wish the report to be released as believed it was a protected disclosure; did not wish the report released, no reason given; will await the Tribunal’s decision without participation; and did not wish identity to be revealed to the Tribunal. Therefore those who raised objection to release of the documents essentially relied upon the promise of confidentiality they had been given, which aspect has been considered above.

16 The Tribunal also notes that pursuant to direction the respondent advised each of the four makers of the original complaints advising them of the status of the proceedings and that they may appear in the proceedings should they wish to (exhibit RD 2). One letter was returned unopened and one was responded to. There was no response by the other two original complainants. Save for the complainant who responded, and consented to release of personal details, the makers of the original complaints did not appear in the proceedings. Consequently, the only circumstance before the Tribunal is the statutory protection afforded to the makers of the original complaints, a matter which has already been considered above.

17 For these reasons access is granted to each of the 7 reports with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the reports. No other deletions are to be made. As a precautionary measure so as to ensure that the names and addresses of these 4 complainants are not revealed inadvertently, this qualification should be made across the board in relation to any documents to which access is granted by the Tribunal

18 These two documents were submitted to the Brennan Inquiry and as such they came within the protected disclosures exemption as the Tribunal has held in its earlier decision. The respondent’s eventual position in relation to these documents was that it was content to release them in full, although it noted that the person who was the subject of the respondent’s investigations did not wish them to be released. The respondent tendered a letter from this person, who was in fact the author of these two documents, being exhibit RD 3, and indicated that it did not wish to be heard on the issue.

19 These submissions by the author essentially note they are draft documents only and that one of them was in fact incorrect. However, they were both employed during the course of the respondent’s enquiry process, despite being drafts only. There is a strong public interest in granting access to these documents, for the reasons given above, which is of much greater significance than the reasons put forward by the author for refusing access. Therefore access should be granted with the names and addresses of each of the makers of the original protected disclosures, save for the applicant’s name and address, being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the reports. No other deletions are to be made.

Documents 4, 5, 6, 7 and 8

20 These several documents have been described in the Tribunal’s earlier decision. They consist of reports of enquiries conducted after the making of the protected disclosures and are more fully described in the respondent’s submissions exhibit R 2 at paragraphs 30 and following. The respondent’s position is that all these documents are already available, although in an edited form. The applicant however argues that the editing in these copies that are available is quite extensive and that this makes the available copies impossible to read clearly. Consequently, he seeks access to the entire documents. Both full copies of these documents and their edited forms are before the Tribunal, and the editing is in fact quite extensive. However, this is only to explain the background why these documents are still being sought and is not the question for decision.

21 The issue before the Tribunal is whether access should be granted on discretionary grounds following the determination that they all fall within the protected disclosures ground of exemption. However, the scope of the dispute is somewhat narrower than this. The respondent in essence accepts that these documents should be made available, but maintains that certain deletions are necessary in order to do this. Therefore the true issue is to determine what deletions are appropriate. These documents all concern investigations by the respondent into allegations of misconduct by one of its employees or commentaries by way of report as to the sufficiency of the investigative process itself. The respondent argues that some aspects of them involve opinions, perhaps given in confidence, and information personal to certain persons caught up in the investigations. In an investigation of this nature it is not surprising that this would be so. The respondent’s submissions (exhibit RD 1 paragraph 6) assert that, in relation to documents 4 and 5, the deletions that have been made are such as to protect the identities of the makers of the protected disclosures and to conceal appropriately withheld personal information. Those submissions also apply this reasoning to the remaining documents in this category (RD 1 paragraph 43, fourth point). Therefore it appears to the Tribunal that it may properly exercise its discretionary powers in relation to all these documents by considering the deletions that have been made for these two reasons.

22 Clearly, for the reasons given above, the names and addresses of the makers of the protected disclosures should not be released. The statutory protection should be maintained in the circumstances. The applicant is in agreement with this point.

23 However, the personal information contained in these documents, which has been deleted in the publicly available copies, falls into a different category. It is certainly desirable to give effect to the privacy of personal information where a greater good is not in play. The respondent’s submissions have not detailed the actual information involved here, nor the identity of the persons to whom such information pertains, however this is discernable by comparing the whole documents with those that are publicly available. It is sufficient here to say that significant parts of the deletions that have been made involve information that may be properly be regarded as personal to particular individuals and that the extent to which this occurs is a factor in favour of refusing access to these parts of the documents. However, there are two points that affect the weight that ought to be given to this factor. First, when the respondent initially determined which deletions it would make in publishing these particular documents it is not obvious that this was done solely with the Freedom of Information Act 1989 requirements as to personal information in mind. It is quite possible that wider considerations were brought to bear in this process. Secondly, and more importantly those who conducted the several enquiries and produced the documents in question obviously were of the view that the information they reported had a bearing on the outcomes they reached. Therefore even though what they related in their reports may have been personal information about individuals they treated it as an integral part of the reporting and determination process. This suggests that to a certain degree at least any understanding of the documents in question would be lessened by not knowing what this personal information is. However, these considerations simply lessen the weight of this factor, but do not negate it entirely.

24 For the reasons given at paragraph 13 above, the public interest served by ensuring that the respondent’s investigations were not only in fact properly and fairly conducted but are seen to be so is paramount. Documents 4 to 8 inclusive are critical in this regard and access to them should be granted even though in part they contain personal information concerning particular individuals. Consequently, access is granted to these documents with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the reports. No other deletions are to be made.

25 The respondent submitted that should the Tribunal be minded to grant access to documents in this category then, to the extent that the documents contain personal information, s.31 of the Freedom of Information Act 1989 requires that the respective individuals should be consulted before access is in fact given. Whilst this is arguable, the better view is that the section does not apply to the Tribunal’s determination. In its terms the section applies only to an agency. Also, the purpose of the section is to enable an individual to pursue rights of review in or appeal to this Tribunal should that person be so minded in circumstances where the agency has decided to grant access to the document containing that person’s personal information. The present matter does not have these features.

26 Should this be incorrect in point of law, the Tribunal is nevertheless of the view that it would not be reasonably practicable to engage in the consultations referred to in the section. This is for three reasons. First, it would take a great deal of time to peruse carefully the voluminous documentation so as to identify all the personal information contained therein and then to engage in the consultations required by the section. This matter has been proceeding for too long now to warrant the expenditure of further time before finality is achieved. Secondly, the subject information must necessarily be read to enable a proper understanding to be achieved and to ensure that the respondent’s investigations and determinations may be seen to have been fair and just. Thirdly, it is more likely than not that any consultations would not affect the outcome of the proceedings in any event, given the significance of the public interest in ensuring that the respondent’s investigative processes and determinations may be seen to have been fair and just.

27 The Tribunal notes that the same considerations apply to the consultation requirement provided by s.32 of the Freedom of Information Act 1989 in relation to business affairs, this aspect of the proceedings being only faintly pressed.

Costs

28 As the applicant was not in an informed position so as to assess whether the disclosures made by the several complainants were in fact protected disclosures, and equally was not in the position where he could form any reasoned view whether such disclosures infected many of the documents he was seeking access to, the Tribunal is not persuaded that the circumstances are such that costs should be awarded against him, even to a limited degree. Consequently, no order is made as to costs.

29 The proceedings presently stand adjourned for directions at 2:30 pm on 09.12.09 to enable the parties to consider the Tribunal’s findings and determination and to make any submissions they so wish in relation to the orders that ought to be made. The proposed orders are that in relation to all documents in each of the 8 categories access is granted to the applicant with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the reports. The Tribunal notes here that the applicant’s name and address need not be deleted from documents 1 and 2. The directions hearing is confirmed. Final orders will be made following that hearing.