Edwards and Secretary, Department of Health and Ageing

[2010] AATA 768

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL           )

)         No. 2010/1416

GENERAL ADMINISTRATIVE DIVISION             )

Re        THOMAS EDWARDS

Applicant

AndSECRETARY, DEPARTMENT OF HEALTH AND AGEING

Respondent

INTERLOCUTORY DECISION

TribunalMs N Isenberg, Senior Member

Date6 October 2010           

PlaceSydney

DecisionInterlocutory relief sought by the Applicant to preclude the Respondent from access to documents produced by the University of Sydney in folders marked A and B should not be granted, other than in relation to the documents identified as File 2001/54689 folios 51-56 and File 2001/54689 folios 57-59.  The Respondent is therefore to have immediate access to the balance of the documents: folders A and B.

.................[sgd]...............

Ms N Isenberg

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – confidentiality – documents disclosing private information including academic record – whether documents are relevant – whether access should be precluded – orders of confidentiality made in relation to documents that are not relevant –  access to documents otherwise granted.

Administrative Appeals Tribunal Act 1975, s 35

Freedom of Information Act 1982

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130

The Fishing Party and Australian Electoral Commission and Australian Fishing and Lifestyle Party [2008] AATA 377

R v Saleam [1989] 16 NSWLR14

Re Pochi and Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247

REASONS FOR DECISION

October 2010 Ms N Isenberg, Senior Member

Background

1.      In 2001 Mr Edwards entered into a contract with the Commonwealth under the Medical Rural Bonded Scholarship Scheme (MRBSS) (‘the scholarship’) and enrolled at the University of Sydney to study medicine.  After two years of study he withdrew from the scholarship scheme and subsequently his enrolment at the university‘s medical program was cancelled.

2. On 2 October 2009 Mr Edwards asked the Respondent, under section 48 of the Freedom of Information Act 1982 to amend any information it held that showed otherwise than:

[1] Mr Edwards met the requirement for, or was eligible for what the University of Sydney terms a ‘Standard HECS Place’.

[2] Mr Edwards met the requirement for a firm MBBS [sic] offer.

3.      On 18 November 2009 the Respondent made a determination refusing to amend the documents on the basis that the material relevant to the request was not incomplete, incorrect, out-of-date or misleading.  That decision was affirmed on internal review.  Mr Edwards then sought review by this Tribunal.

The matter under consideration

4.      The Respondent, in the course of preparation of its case before the Tribunal, summonsed material from the University of Sydney in the following terms:

1.        Copies of all documents and records relating to:

(a)an offer for a place in the medical school of the University of Sydney (the University) to Mr Thomas Edwards (a previous Medical Rural Bonded Scholarship Scheme (MRBSS) student, MSAT No 15514) for the application year 2000;

(b)Mr Edwards’ eligibility (if any) and ranking for a ‘standard HECS place’ at the time, and the ranking required at that time to be offered a ‘standard HECS place’ or a MRBSS place as a route into the medical program;

(c)Mr Edwards’ acceptance of any offer by the University; and

(d)correspondence to and from Mr Edwards about his application for, and admission, to the medical program.

but not including any privileged legal advice or the names, or other identifying personal information, of any other students (which my be appropriately redacted).

2.Copies of documents or records such as lists that show the eligibility and/or ranking of students for the application year 2000.

3.‘Documents’ and ‘records’ include material in electronic form.

5. On 26 August 2010 the Tribunal made Directions giving the parties access to two volumes marked A and B of the documents produced by the university. In accordance with the Directions Mr Edwards had first access to the documents. After inspecting the documents Mr Edwards sought orders under section 35 of the Administrative Appeals Tribunal Act 1975 (the Act) so as to preclude the Respondent from having access to some of the documents. 

6.      Mr Edwards helpfully provided a schedule of the documents to which he objected being made available to the Respondent.  At the interlocutory hearing he agreed these fell into what may be described as three main categories:

·those that contained private information.

·those that were irrelevant to the matter at hand.

·those that related to earlier degrees.

7.      The Respondent submitted that it should have access to whatever documents the university considered relevant, as its role is to assist the Tribunal in coming to a view with regard to the basis on which Mr Edwards held his place in the university’s medical program.  If the documents are likely to assist the Tribunal in coming to its view, then they will be tendered; if they do not assist, then they will not be tendered.  Without examining the documents, the Respondent submitted, it would be limited in its ability to assist the Tribunal.  

8.      I was referred by the Respondent’s solicitor to R v Saleam [1989] 16 NSWLR 14 to the effect that if a legitimate forensic purpose is identified, access should not be withheld (assuming there is no public interest immunity or other privilege), simply on the basis that the judge can see nothing in the documents to assist the requesting party’s case, and the requesting party should decide for themselves when the documents have been inspected. Mr Edwards correctly pointed out that this case refers to a criminal matter where access was sought to police files in circumstances where there were allegations of perjury.

9.      The Respondent further submitted, most relevantly, that Mr Edwards had put in issue his status at the university and it was incongruous for him to now seek to limit the Respondent’s access to material that related to that status.

Consideration  

10.     There is no doubt, having regard to the recent decision of the Full Federal Court of Australia in Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 that the Tribunal has power to make the orders as sought. The question is whether it is appropriate that do so.

11. Under section 35 of the AAT Act, the Tribunal may, where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence before it, give directions restricting disclosure to some or all of the parties to proceedings of evidence or of the contents of documents lodged with the Tribunal. The section was considered by Brennan J in Re Pochi and Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247 in the context of a deportation order and submissions as to procedural fairness. After observing that the power to prevent disclosure was one to be exercised sparingly and with caution, his Honour said at 272:

“The purpose … is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.”

12.     His Honour then observed that where the public interest requires that information be kept confidential, such a consideration may outweigh even the public interest in the administration of justice. 

13.     In The Fishing Party and Australian Electoral Commission and Australian Fishing and Lifestyle Party [2008] AATA 377, the Tribunal made confidentiality orders in respect of the membership lists of the Australian Fishing and Lifestyle Party, which contained personal information about persons who were not parties to the proceedings. In addition to disclosing political affiliations, the lists also contained members’ residential and email addresses, telephone numbers, and the dates on which they joined the party. In the present matter there was no material which was of that level of sensitivity. Indeed, the majority of the material was either generated by Mr Edwards himself or by the university in response to his correspondence.

14.     As I understand Mr Edwards’ substantive complaint, he claims, in essence, that he held a place in the medicine faculty on his own merits, and not just because he was a scholarship recipient.  The latter appears to be the position maintained by the Respondent, apparently acting upon advice from the university.  As I observed at the interlocutory hearing, I thought it may have been in Mr Edwards’ interests to have as much information as possible from the university available to the Respondent if he considered that his status had been mis-recorded by the Respondent, and he wanted the Respondent to correct its records accordingly.

15.     The Respondent did not press access to documents that related to Mr Edwards’ academic record in his earlier degree: File 2001/54689 folios 51-56.  I direct that these documents be excised from the folders and marked as confidential.

16.     I carefully examined the balance of the documents to which Mr Edwards has objected.  There was some duplication in the documents.  

17.     There were documents generated by Mr Edwards himself, including documents in which Mr Edwards sought to have the university amend its records, and the university’s response.  There was also correspondence between the university and the Respondent.  This material was relevant, in my view, in that the Respondent’s position seems to be significantly reliant upon that of the university.  Consequently, what the university has to say about its understanding of Mr Edwards’ status is clearly relevant in the matter before this Tribunal.  Some documents referred to subsequent events, but in nearly every case the document or the documents in response harked back to the scholarship scheme. 

18.     The only material which, in my view, was clearly irrelevant, was File 2001/54689 folios 57-59 which appeared to relate to a PhD proposal made by Mr Edwards.  These documents are outside the scope of the summons and should be excised.

19.     Having examined all the documents which are the subject of Mr Edwards’ claim for confidentiality and taking into account the parties’ submissions, I am not persuaded that the balance of the material should be confidential.  In particular, I do not consider that it is appropriate for the Respondent to be precluded from having access to the material provided by the university, in order to properly conduct its case.  Accordingly, I decline to grant the interlocutory relief sought by Mr Edwards relating to confidentiality, other than: documents that related to Mr Edwards’ academic record in his earlier degree, identified as File 2001/54689 folios 51-56; and documents that related to his PhD proposal, identified as File 2001/54689 folios 57-59.  The Respondent is therefore to have immediate access to the balance of the documents: folders A and B

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:   .................[sgd]...................................................
               Associate

Date of interlocutory hearing:    22 September 2010
Date of Decision:  6 October 2010
The Applicant:  Self represented
Solicitor for the Respondent:     Mr J Davidson