EMC v University of Sydney

[2021] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EMC v The University of Sydney [2021] NSWCATAD 234

Hearing dates:

2 November 2020; Written submissions by 16 March 2021

Date of orders:

16 August 2021

Decision date:

16 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Wall, Senior Member

Decision:

The Tribunal Orders that:

(1)   The decision under review dated 2 April 2020 is varied to the following effect:

   (a)   Items [1.7], [3], [4], [5], and [6] listed in the Schedule be released to the Applicant within 28 days of these orders.

   (b)   the decision under review is otherwise affirmed.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of:

   (a)   the material filed by the respondent on a confidential basis,

   (b)   those paragraphs of these reasons identified as [NOT FOR PUBLICATION],

   (c)   the submissions made in private before the Tribunal, and

(d) the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013,

   is prohibited. That material is not to be released to the Applicant or the public.

(3) Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

   (a)   The Applicant is to be identified by the pseudonym ‘EMC’ at all times in this decision and in the proceedings             generally.

   (b)   The identity of the Applicant is not to be  disclosed by the Respondent, or by any other persons and she is to be referred          to as ‘EMC.’

Catchwords:

GOVERNMENT INFORMATION PUBLIC ACCESS – information for which there is a conclusive public interest against disclosure (privileged information) - client privilege –in-house lawyers –independence -–improper purpose. Non-disclosure order – anonymisation order. Information for which there is an overriding public interest against disclosure (cl 1(e), (f) and (g) and cl 3(a) and (b) and of the table to s 14(2) of the Government Information (Public Access) Act 2009). Balancing public interest considerations. Allegations of misconduct - failure to exercise in good faith - function conferred on officer –s112 referral to Minister.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW) (repealed)

University of Sydney Act 1989 (NSW)

Cases Cited:

Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Grant v Downs [1976] HCA 63

Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204

Hurst v Wagga City Council [2011] NSWADT 307

Transport for NSW v Searle [2018] NSWCATAP 93

Destination NSW v Taylor [2019] NSWCATAP 123

Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317

Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18

Taylor v Office of Destination NSW [2018] NSWCATAD 195

Page v Commissioner of Police [2020] NSWCATAD 163

Meacham v Commissioner of Police [2020] NSWCATAP 107

Griffin v Sydney Trains [2020] NSWCATAD 234 ;

EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94.

CVV v United Resource Management Pty Ltd (URM) [2016] NSWCATAD 271

Mr X v Teachers Mutual Bank Limited [2020] NSWCATAD 218

ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77

LD v Director-General, Dept of Education and Training [2009] NSWADT 14

Re VC and Australian Federal Police (1985) 8 ALD 587

AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police [2020] NSWCATAD 84

Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2003] NSWCAT 257

O’Grady v Sutherland Shine Council [2020] NSWCATAD 50

Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 183

Walker v NSW Department of Premier and Cabinet [2018] NSWCATAD 178

Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138

Fisher v Commissioner of Police [2021] NSWCATAD 44

Betzis v Commissioner of Police [2020] NSWCATAD 71

Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286

NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245

ECN v Commissioner of Police [2020] NSWCATAP 267

Transport for NSW v Robinson [2018] NSWCATAP 123

Jackson v University of New South Wales [2019] NSWCATAD 224

Rich v Harrington [2007] FCA 1987

Archer Capital v Sage Group (No 2) [2013] FCA 1098

P v Western NSW Local Health District [2016] NSWCATAD

AWB Ltd v Cole [2006] FCA 571

Holman v Warringah Council [2015] NSWCATAD 215

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325;

Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 683

Balabel v Air India 1988] Ch 317, 330;

Commissioner of Taxation v Pratt Holdings Pty Ltd [2004] FCAFC 122 at [87];

DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796

Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495

AIN v Medical Council (NSW) [2015] NSWCATAP 241

Friday v Minister for Primary Industry and Resources [2020] FCA 984

Howell v Macquarie University [2008] NSWCA 26.

Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 7) [2012] FCA 1185

Barrett v Department of Planning, Industry and Environment [2020] NSWCATAD 196

ECN v Commissioner of Police [2020] NSWCATAD 153

McGuirk v Director-General, Attorney General's Department [2006] NSWADT 265;

Franks v Warringah Council [2006] NSWADT 124

Saggers v Director General, Department of Premier & Cabinet Ministerial & Parliamentary Services [2008] NSWADT 164

Schreuder v Murray (No 2) [2009] WASCA 145

Barnes v Commissioner of Taxation [2007] FCAFC 88

Westgate Finance v May [2012] NSWSC 806

Kreutzer v University of Sydney [2015] NSWCATAD 270

Kang v Kwan [2001] NSWSC 698

Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305.

Re Global Advanced Metals Pty Ltd [2019] NSWSC 1545

Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002

Seven Network Ltd v News Ltd [2005] FCA 142;

Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95;

Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218).

Generate Group Pty Ltd v Sea-Tech Automation Pty Ltd [2017] FCA 1261

Seven Network Ltd v News Ltd [2005] FCA 142

Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817

JY v Commissioner of Police [2008] NSWADT 306,

Rae v Commissioner of Police [2020] NSWCATAD 189

McKean v Attorney-General & Justice [2015] NSWCATAD 176

EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94,

APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42

Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Danis v Commissioner of Police [2021] NSWCATAP 23

Polden v University of Sydney [2016] NSWCATAD 201

Thomson v Commissioner of Police [2021] NSWCATAD 53

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13

Pemberton v Macquarie University [2014] NSWCATAD 76

Noble v University of New South Wales [2017] NSWCATAD 2

Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29

Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19

DQN v University of Sydney [2019] NSWCATAD 159

McKinnon v Blacktown City Council [2012] NSWDAT 44

Commissioner of Police (NSW) v Field [2016] NSWCATAP 59

Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37

Lonsdale v University of Sydney [2016] NSWCATAD 176

Anderson v Tweed Shire Council [2017] NSWCATAD 61

Warren v NSW Trustee and Guardian [2014] NSWCATAP 20;

Alam v Insurance and Care NSW [2020] NSWCATAP 215;

Zonnevylle v Department of Justice [2019] NSWCATAP 44

Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303

Watson & Anor. v. McLernon & 26 Ors.Watson v. McLernon & 27 Ors. [2000] NSWSC 19

Applicants v Commissioner of Police [2015] NSWCATAD 22

Texts Cited:

The Information Commissioner’s Guideline 4 – Personal information as a public interest consideration under the GIPA Act.

Category:

Principal judgment

Parties:

EMC (Applicant)
The University of Sydney (Respondent)

Representation:

Counsel:
C Trahanas (Respondent)

Solicitors:
Applicant: (Self-represented).
Heesom Legal (Respondent)

File Number(s):

2020/00222420

Publication restriction:

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013:
(a) The Applicant is to be identified by the pseudonym ‘EMC at all times in this decision and in the proceedings generally.
(b) The identity of the Applicant is not to be disclosed by the Respondent to these proceedings, or by any other persons and she is to be referred to as ‘EMC.
(3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of:
(a) the material filed by the respondent on a confidential basis,
(b) those paragraphs of these reasons identified as [NOT FOR PUBLICATION],
(d) the submissions made in private before the Tribunal, and
(e) the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013,
is prohibited. That material is not to be released to the Applicant or the public.

reasons for decision

Introduction

Background

The issues for determination

Relevant Legislation

The public interest considerations against disclosure nominated by University in the Table in s14.

Balancing the competing public interests

Burden and standard of proof

Unconditional release of government information

Conclusive presumption against disclosure of privileged information.

Section 112 referral – whether an officer has failed to exercise a function in good faith.

Confidential material

The hearing and material before the Tribunal

Non-publication/ anonymisation orders

Raising additional grounds

The University’s Evidence

The Applicant ’s case

Submissions and Findings

Conclusive presumption against disclosure: Legal professional privilege.

Legal professional privilege - applicable principles.

Lawyer/ client relationship

Dominant purpose

Legal Advice

Proof of purpose

Does the Privilege extend to the email chains and copy documents?

Inspection of privileged documents

Improper or unlawful purpose

Submissions and Findings on LPP

Challenges to Mr Fry’s evidence

Was there a lawyer/ client relationship?

Independence

Are the email communications confidential?

Were the emails prepared for the dominant purpose of receiving or providing legal advice?

The Documents

Items 1.1 and 1.7

Item 1.2

Item 1.3

Item 1.4

Item 1.5

Item 1.6

Item 1.7

Item 1.8

Item 1.9

Item 1.10

Item 1.11

Item 1.12

Item 1.13

Item 2.1

Item 2.2

Item 2.3

Item 2.4

Item 2.5

Item 2.6

Item 2.7

Item 2.8

Items 2.9 and 2.10

Item 2.11

Item 7

Improper purpose

Findings on the conclusive presumption

Public Interest considerations in favour of disclosure

Consideration

General public interest in favour of the disclosure of government information

Disclosure of information would promote accountability and transparency of the University’s complaints process and recruitment and selection functions.

Some of the withheld information is personal information of the Applicant

Disclosure would ensure effective oversight of the expenditure of public funds.

Disclosure of information that could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct

Other considerations in support of disclosure.

Public interest considerations against disclosure in the Table to s14 of the GIPA Act.

Clause 1(e) of the table to s14 - Prejudice the supply of confidential information, the deliberative processes or effective exercise of the functions of the University.

Submissions

Consideration

Clause 1(f) of the Table - Prejudice the effective exercise by an agency of the agency’s functions - Cl 1 (f).

Submissions

Consideration

Clause 1(g) of the Table - Disclosure of information provided to the agency in confidence.

Submissions

Consideration

Weighing the considerations for and against disclosure of items 1.7, 4, 5 and 6

Submissions

Clause 3(b) of the Table - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

Submissions

Consideration

Weighing the considerations for and against disclosure of item 3

Referral under s 112 – whether an officer has failed to exercise a function in good faith

Submissions

Consideration

Conclusion and orders

Introduction

1. By application filed on 30 July 2019, the Applicant commenced proceedings in the Tribunal for administrative review of a notice of decision by the University of Sydney (the “University”) dated 2 April 2020 made under the Government Information (Public Access) Act 2009 NSW (“the GIPA Act).

2. On 2 November 2020, the Tribunal made a non-publication order relating to the Applicant ’s name under s64(1)(a) of the Civil and Administrative Tribunal Act 2013; (“the NCAT Act”). The Tribunal ordered that the Applicant shall be referred in these proceedings under the pseudonym “EMC”. In this decision, the Applicant shall be referred to as the “Applicant” or “EMC”.

Background

3. The following summary is largely taken from the parties’ submissions to the extent that they record facts not in dispute and from parts of the evidence not in dispute.

4. In August 2018 the Applicant applied for a position with the University as a Senior Workplace Relations Advisor through a recruitment consultant firm, Peoplecorp. The Applicant was not short listed for interview and her application was unsuccessful. The Applicant requested feedback from the University, through the recruitment consultant, (Ms Jenna Flamsteed) on her job application and why she was unsuccessful.

5. Dissatisfied with the feedback she received; in September 2018 and in January 2019, the Applicant made two applications under the GIPA Act for documents relating to University’s recruitment decision.

6. In response to the first application (made on 26 September 2018), the University released a number of emails between Ms Jodi Dickson and the Recruitment consultant (Ms Jenna Flamsteed) in relation to the Applicant ’s job application. In response to a second access application dated 21 January 2019, the University provided some additional documents to the Applicant on 12 March 2019 and, following an external review by the Information and Privacy Commission (“the IPC”), released two additional documents on 9 May 2019. It is not necessary, for the purposes of these proceedings, to outline in any detail the background to those earlier GIPA Act applications other than to note that the University released seven documents in response to these access applications. These documents are annexed to Mr Fry’s affidavit.

7. In May 2019, the University received a request for information from the NSW Independent Commission Against Corruption (“the ICAC”) in response to a complaint from the Applicant.

8. On 4 June 2019, the Applicant submitted a written complaint to the University’s Chief Human Resources Officer, Ms Haywood, alleging a breach of the University’s Code of Conduct by two senior employees within the University’s Workplace relations unit, Ms Dickson and Mr Strbik.

9. On 19 August 2019, the Applicant made a third application pursuant to s41 of the GIPA Act for access to government information held by the University as follows, (“the access application”):

Personal information held about me by the following individuals from 01/09/18:

Jodi Dickson.

Frank Strbik.

Lisa Buckley (an employee of the University).

Melaine Leshetz (an employee of the University).

Dominic Stewart (a senior solicitor with the Office of General Counsel).

Karen Haywood.

Lis (Lisa) Carroli (a former employee of the University).

Ben Duggan (a Workplace Relations Advisor at the University.

Radha Sharma (a former contractor for the University.

10. On 24 September 2019, and pursuant to s58 of the GIPA Act, the University’s Group Secretary, Mr Alex Maitland, decided to provide full access to some of the information falling within the scope of the Applicant ’s access application. However, access to a number of email chains was refused on the basis that there was an overriding public interest against disclosure of the information; (the original decision).

11. The original decision was a reviewable decision under s80(d) of the GIPA Act. On 30 September 2019, the Applicant sought an external review of the original decision by the IPC.

12. On 30 January 2020, the IPC reviewed the original decision and recommended, pursuant to s93 of the GIPA Act, that the University make a new decision by way of internal review, (“the First IPC Report”).

13. On 2 April 2020, a delegate of the University, Mr Peter Dowdall, the Acting Group Secretary, made a new decision following an internal review, (“the internal review decision”). The internal review decision was to refuse access to the relevant email chains on the basis that there was overriding public interest against disclosure. A schedule of documents withheld by the University was attached to the internal review decision, (“the Schedule”).

14. On 6 May 2020, the Applicant applied to the IPC for external review of the internal review decision pursuant to s89 of the GIPA Act.

15. On 7 July 2020, the IPC produced a further report recommending that the University reconsider the internal review decision; (“the Second IPC Report”).

16. On 16 July 2020, the University notified the Applicant and the IPC that it would take no further action in relation to the recommendations in the Second IPC Report.

17. On 30 July 2020, the Applicant exercised her rights under s100 of the GIPA Act by commencing proceedings in the Tribunal for a review of the internal review decision to refuse access to the email chains. The internal review decision is a reviewable decision under s80(d) of the GIPA Act. The Tribunal has the jurisdiction to conduct an administrative review of a reviewable decision pursuant to s28 of the NCAT Act and s 9 of the Administrative Decisions Review Act 1997 (NSW) (the “ADR Act”).

18. On 2 November 2020, the matter proceeded to hearing. Both parties appeared by telephone in accordance with the COVID health orders. At the conclusion of the hearing the Tribunal made orders that the parties file and serve any additional submissions on matters arising during the hearing including whether the Tribunal should make a referral to the relevant Minister under s112 of the GIPA Act. Both parties complied with that direction.

The issues for determination

19. The issues for determination in these proceedings are as follows:

1. Whether the Tribunal should make an order restricting the publication of the Applicant’s name, that is make an anonymisation order.

2. Whether the University should be permitted to raise additional grounds not relied on in its reviewable decision as public interest considerations against disclosure.

3. Whether there is a presumed conclusive overriding public interest against disclosure of the information in the emails listed as items 1, 2 and 7 in the Schedule on the grounds of legal professional privilege: GIPA Act, s 14(1), Sch 1, cl 5.

4. To identify the public interest considerations in favour of disclosure of the information, including any personal factors of the application that support disclosure.

5. Whether the public interest against disclosure in cl 1(e), 1(f) and/or 1(g) of the Table to s 14(2) applies to the information in items 4, 5 and 6 listed in the Schedule (and in the event the Tribunal finds against the University in relation to issue (a) above, the information in items 1, 2 and 7) and, on balance, whether those public interest considerations against disclosure outweigh the public interest in favour of disclosure.

1. Whether the public interest against disclosure in cl 3(a) and 3(b) of the Table to s 14(2) applies to the redacted information listed in item 3 of the Schedule and, on balance, whether that public interest consideration against disclosure outweighs the public interest in favour of disclosure.

2. Whether as a result of this review, the Tribunal is satisfied that any or all of Ms Dickson, Mr Stewart or Mr Strbik (all senior employees and officers of the University) have failed to exercise in good faith a function conferred on them by or under the GIPA Act and, if so, whether the evidence warrants the matter being referred to the attention of the Minister under section 112 of the GIPA Act.

20. With two limited exceptions, it is not the function of the Tribunal in this proceeding to consider the merits of the Applicant’s complaints against the University (or its officers) in relation to the recruitment process (either specifically or generally) or its investigation of the Applicant’s code of conduct complaints. Nor does the Tribunal have the power to resolve any grievances or sense of disquiet the Applicant may have about the conduct of some of the University’s senior employees. This is because, as the Tribunal has noted in Kreutzer v University of Sydney [2015] NSWCATAD 270 at [72]; Raven v University of Sydney [2015] NSWCATAD 104, [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11]; and Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [117], proceedings for administrative review under the GIPA Act should not be used as “a vehicle for the collateral review of the merits or validity of the official actions taken by an agency”.

21. The first exception concerns the potential application of a public interest consideration in favour of disclosure that could reasonably be expected to reveal or substantiate that the University (or a staff member of the University) has engaged in misconduct, improper or unlawful conduct. I will consider the Applicant ’s submissions on this issue below under the heading ‘Public interest considerations in favour of disclosure’.

22. The second exception is noted in Kreutzer in which Senior Member Walker says at [72] that: “Such criticisms may, however, be relevant on the question of improper purpose under s 125” (of the Evidence Act in relation to a claim for legal advice/ legal professional privilege). I will return to the Applicant’s submission that the University’s claim for legal advice privilege is defeated because of improper purpose below.

23. It is also important to note that while the Applicant has adopted the recommendations and findings of the IPC in the two written reports - to the extent they support disclosure – the function of the Tribunal in these proceedings is to make ‘the correct and preferable decision’ having regard to all the material before it, including the parties’ submissions and the confidential documents; at the time it makes the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Danis at [34]. It is not the Tribunal’s role in these proceedings, as the University submitted, to weigh the conclusions and recommendations of the IPC against the University’s submissions or the evidence of Mr Fry or to consider the merits of or to review the recommendations or findings made by the IPC.

Relevant Legislation

24. In Veall v Department of Planning and Environment [2018] NSWCATAD 47 , Senior Member Dinnen summarised the relevant legislative provisions and legal principles in an application for release of information under the GIPA Act at [7]-[23] as follows:

Tribunal’s jurisdiction and powers

7. The Tribunal’s jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

8. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier’s Department [2002] NSWADT 277 at [57] and [59].

9. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).

10. In determining the application, the Tribunal 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: s 107(1) of the GIPA Act.

The GIPA Act

11. Section 3(1) of the GIPA Act provides:

3 Object of Act   (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.

12. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.

13. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access Applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

14. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.

15. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision-maker to:

(1)    identify relevant public interest considerations in favour of disclosure,

(2)    identify relevant public interest considerations against disclosure,

(3)    attribute weight to each consideration for and against disclosure, and

(4)    determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

16. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. (Omitted).

17. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.

18. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act.

19. Section 54 of the GIPA Act requires an agency to take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application.

20. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant 's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.

“Could reasonably be expected…”

21. The words “could reasonably be expected to” have been held to require “something more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived”:Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a “real” risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase “‘simply calls for an “objective assessment’, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is, of course, a question of fact”: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].

22. In Attorney General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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...

23. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk, or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

The public interest considerations against disclosure nominated by University in the Table in s14.

25. The considerations listed in the Table to s 14 which are relevant to this application are as follows:

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):

(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f) prejudice the effective exercise by an agency of the agency’s functions,

(g)… 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,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.

Balancing the competing public interests

26. In balancing the competing public interest for and against disclosure, the Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 (at [104]) explained that, while s13 of the GIPA Act requires the Tribunal to make a broad value judgment:

[104] “ … it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act”.

27. In Destination NSW v Taylor [2019] NSWCATAP 123, the Appeal Panel observed that, in ascribing weight to the competing public interest considerations under s13 of the GIPA Act:

[69] … the weight to be attributed to each pubic interest consideration depends on the effect of disclosing each particular piece of information. The Tribunal carefully assessed the public interest considerations for each piece of information. The weight that the Tribunal gave to the considerations against disclosure depended on the probative value of the evidence about the effect of disclosing that information.

Burden and standard of proof

28. In Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317, Senior Member Goodman SC observed at [36] that:

[36] The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].

29. As to the standard of evidence required to establish that disclosure could reasonably be expected to have a nominated effect, Principal Member Pearson in Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 said at [67]:

[67] In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table to s 14, referring to Searle and the authorities discussed in that decision, and held:

59.   Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

30. In Page v Commissioner of Police [2020] NSWCATAD 163 at [58], Senior Member Goodman SC referred to the reasoning of the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83] as to the requirements for proof of questions of fact in administrative review proceedings generally:

[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

Unconditional release of government information

31. Under s73 (and s15(e]) of the GIPA Act an agency (in this matter, the University) is not entitled to impose any conditions on the Applicant ’s use or subsequent disclosure of the information released under a GIPA Act access application. The Tribunal has held that disclosure under the GIPA Act is in effect a release to the public at large: Danis at [86]; Griffin v Sydney Trains [2020] NSWCATAD 234 at [28]; EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [59].

Conclusive presumption against disclosure of privileged information.

32. Under s14(1) of the GIPA Act, an overriding public interest against disclosure is conclusively presumed in respect of government information described in Schedule 1. Relevantly, clause 5 of Schedule 1 provides:

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.

Section 112 referral – whether an officer has failed to exercise a function in good faith.

33. Section 112 of the GIPA Act provides:

If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Confidential material

34. The University provided to the Tribunal on a confidential basis a copy of the withheld documents in items 1, 2, 3, 4, 5, 6 and 7 in the Schedule of Documents. Items 1, 2 and 7 were contained in two sealed envelopes marked: ’confidential: conclusive presumption documents’. Items 3, 4, 5 and 6 were contained in a sealed envelope marked: ’confidential: non-disclosure documents’. The Tribunal was taken to this material, and submissions were received in a confidential session in the absence of the Applicant and the public on the day of the hearing. Under s107(1) of the GIPA Act the Tribunal must not, on review of an agency’s decision, disclose any information for which there is an overriding public interest against disclosure, and must receive evidence and hear argument in the absence of the public, the review Applicant and the Applicant ’s representative if it forms the opinion that this is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure.

34. To give effect to the prohibition in s107, the Tribunal made a confidentiality order under section 64 of the NCAT Act that the confidential material referred to above not be disclosed except to the University.

The hearing and material before the Tribunal

36. In addition to the confidential documents, the University relied on the following written material:

1. Affidavit of Ashley Anderson Fry sworn on 23 September 2020 and annexures.

2. Submissions dated 23 September 2020.

3. Respondent’s Submissions in Reply dated 22 October 2020.

4. Respondent’s Further Submissions dated 16 November 2020.

5. Respondent’s Further Submissions in Reply dated 5 February 2021.

37. The University also relied on the oral evidence given by Mr Ashley Fry as well as the oral submissions of counsel during the hearing on 2 November 2020. Mr Fry was also cross-examined by the Applicant.

38. The Applicant relied on the following written material:

1. Application for administrative review filed on 30 July 2019 (which attached a bundle of documents including: the original decision dated 24 September 2019; the IPC report dated 30 January 2020; letter from University to the IPC advising that a new decision will be made in response to the first IPC report; the internal review decision, the IPC Report dated 7 July 2019 and a letter dated 16 July 2019 from the University’s Group Secretary in relation to the Second IPC Report.

2. Submissions dated 14 October 2020 (which attached a bundle of documents including the Position Description for the Senior Workplace Advisor roles; emails from Ms Flamsteed (the recruitment consultant); the University Recruitment and Selection Policy and Code of Conduct.

3. The two IPC Reports, the first report dated 30 January 2020; the second report dated 7 July 2020– to the extent they supported disclosure.

4. Applicant’s Further Submissions filed on 17 December 2020.

5. Applicant’s Further Submissions in Reply filed on 16 March 2021.

6. The documents previously released by the University which are annexed to Mr Fry’s affidavit, including emails from senior employees of the University (which I will return to below).

39. The Applicant also made oral submissions at the hearing on 2 November 2020, and cross-examined Mr Fry on his affidavit evidence.

Non-publication/ anonymisation orders

40. At the hearing, the Applicant sought an order for non-disclosure (anonymisation) of her name. She submitted that the order was necessary because there was a real risk that her future employment prospects, particularly within the university sector, could be prejudiced. The Applicant submitted that two emails by senior members of staff, Mr Strbik and Ms Dickson both dated 7 August 2018 (which are set out below in my summary of the Applicant’s case) contained sensitive and disparaging remarks about her suitability for employment with the University. The Applicant submitted, and I accept, that she holds a genuine concern that the publication of her name could affect her future career prospects. The Applicant also submitted, and I accept that her last name is not a common one.

41. The University neither consented to nor opposed the request for a non-publication order. Nor did it challenge the reasons given by the Applicant in support of the non-disclosure order.

42. The applicable legal principles were summarised in CVV v United Resource Management Pty Ltd (URM) [2016] NSWCATAD 271 at [4]-[10] as follows:

[4] The Tribunal usually proceeds in accordance with the principles of “open justice”.

[5] Section 64(1)(a) of the NCAT Act provides that:

64 The Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

[6] The Tribunal accepts the principles set out in State of New South Wales (Justice Health) and anor v Dezfouli (‘Dezfouli’) [2008] NSWADTAP 69 interpreting a similar provision in the Administrative Decisions Tribunal Act 1997 (NSW). As the Appeal Panel observed in Dezfouli [at 58]:

'... it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).'

[7] That remains the case under the NCAT Act.

[8] As stated in that Dezfouli at [81]:

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an Applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression  order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

[9] As stated in Carroll v Tokdogan & Anor [2015] NSWCATAD 200 (2 October 2015) at [8]:

“Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, the power contained in s 64 should be exercised sparingly.”

[10] Nevertheless, there are instances where it is appropriate to suppress details of a party’s or other name and address. This has occurred in a variety of situations in NCAT and, prior to that, in the ADT (See for example LD v Director-General DET and Anor [2009] NSWADT14; JQ v Double Bay Out of School Hours Inc [2008] NSWADT337; ACE v State of NSW (Tafe Commission and DET) (No 2) [2011] NSWADT77; OV and anor v QZ and Anor (No 2) [2008] NSWADT 195.

43. In accordance with the principle of open justice, it is the usual practice of the Tribunal to publish all decisions relating to GIPA Act proceedings electronically on the Caselaw.nsw.gov.au website and for the decisions to be re-published on the and BarNetJade websites: Mr X v Teachers Mutual Bank Limited [2020] NSWCATAD 218 at [1]and [18], per Deputy President Hennessy.

44. As the Appeal Panel observed in ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77 at [20], endorsing the reasoning of Deputy President Hennessy in LD v Director-General, Dept of Education and Training [2009] NSWADT 14 at [23], “there can be little doubt that publication of the reasons for decision on the internet permits almost universal access to the information they contain …”. The Appeal Panel then said at [21,] that the “improved efficiency and sensitivity of search engines available on the internet makes it likely that anyone desiring information about the Applicant for any purpose - including purposes unconnected with these proceedings - can easily find and access the published information concerning … (the Applicant) at any time”.

45. Having considered the application I am satisfied, for the purposes of these proceedings, applying the reasoning in the authorities referred to above, and adopting the approach of Deputy President Hennessy in Mr X, that it is desirable to make a non-publication in this matter because:

1. Firstly, while there was no other evidence, I accept the Applicant has genuine concerns that future searches of her name on the internet could negatively affect her future employment opportunities, particularly within the university sector. In this connection, I note that the emails from Mr Strbik and Ms Dickson both dated 7 August 2018 (set out below at [63]-[75]) raise sensitive questions about the Applicant ’s suitability for “any type of employment” within the University although it is not clear from the emails themselves why those views have been expressed. Given the focus of these proceedings, none of the University staff responsible for the recruitment decision have given evidence or been tested publicly on the statements made in the email documents relating to the Applicant’s suitability for employment with the University. I also accept that disclosure of the Applicant’s name could enable a third party to search for and access information about the nature of Tribunal proceedings, the evidence filed and exhibits of documents tendered at the hearing. I also accept that the Applicant has expressed genuine concerns that this information could potentially be used by recruitment consultants (and I paraphrase) to screen out or blacklist the Applicant in relation to future employment opportunities and recruitment decisions. Nonetheless, it is not “necessary to make any factual findings as to the correctness of [the Applicant’s] assertions” (Mr X [24]) but rather to find that the Applicant has genuine concerns that the relevant information could be used as a basis (and I paraphrase) for effectively ‘backlisting’ her from future employment within the University sector based on the comments in the emails.

2. Secondly, decisions published online can be searched by any member of the public, including potential employers, using keywords, including a party’s name, type of case and date: LD at [23].

3. Thirdly, that there will be minimal interference with the principle of open justice by removing the Applicant ’s name from the decision given that the hearing was held in public and the Tribunal’s decision will, as noted above, be published online and publicly available. In this connection, I note that the Appeal Panel in State of New South Wales (Justice Health) and anor v Dezfouli (‘Dezfouli’) [2008] NSWADTAP 69 referred to, with approval, the observation of the Administrative Appeals Tribunal (Cth) in Re VC and Australian Federal Police (1985) 8 ALD 587:

'the public interest in having information about the identity of an Applicant ... is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny'.

46. For all of these reasons, I am satisfied that it is 'desirable' to make an order that the Applicant be referred to in these reasons and in the proceedings generally by the pseudonym ”EMC”.

Raising additional grounds

47. At the hearing, and in further submissions in reply, the Applicant opposed the University relying on additional grounds to withhold the disclosure of the information in items 1, 2 and 7 of the Schedule. In its written submissions, the University submitted that in the event the Tribunal decided the conclusive presumption against disclosure did not apply to any of items 1, 2 and 7 on the basis that the communications within the documents were not protected by legal professional privilege, that there is nonetheless an overriding public interest against disclosure of those documents under clauses 1 (e], (f) and (g) of the table in s14 of the GIPA Act.

48. In support of its submission, the University relied on the Tribunal decision in AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police [2020] NSWCATAD 84 at [23] which cited and applied the reasoning in Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277. In Public Service Association, which concerned an application under the (then) Freedom of Information Act 1989 (NSW), (“FOI Act”) the Tribunal, after considering the decision of the Full Federal Court in Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 in relation to the Commonwealth Freedom of Information legislation, stated (at [57] and [59]) that:

57 Searle is also relevant in these proceedings in relation to the question whether this Tribunal ought consider grounds other than those relied upon by the original decision-maker. In that case, the Full Court held that the AAT was not limited to considering the grounds of exemption relied upon by the original decision-maker because, as it said (at 113) "the function of the Tribunal is to hear matters de novo and to reach a view itself, untrammelled by the view taken by the primary decision-maker."

59 The Applicant submits that the respondent ought be limited to arguing its case under cl.13(b) of Schedule 1. This argument cannot be made out. This case is on all fours with Searle. The Tribunal may consider other grounds of exemption. The only limitation on the Tribunal in this regard is that, pursuant to the rules of natural justice, it must allow the parties a fair opportunity to argue the application of other grounds.

49. In summary, the Applicant submitted that the University should not be permitted to rely on new grounds to withhold disclosure of the relevant information because:

1. Firstly, AIG followed the reasoning in Public Service which concerned an application under the FOI Act (now repealed) and not the GIPA Act. The FOI legislation is outdated and cases decided under that Act can be distinguished from cases decided under the GIPA Act.

2. Secondly, the Applicant is unrepresented and would be disadvantaged if the University was allowed to raise new grounds that had not been considered by the IPC as part of its external review of the original decision and the internal review decision. It is apparent from the written submissions that the Applicant has relied upon the reasoning in the IPC reports in relation to the current application. This submission raises the question of procedural fairness. The complaint of the Applicant is, as I understand it, that she was denied a reasonable opportunity to present her case at the Tribunal because she did not have the ‘expert’ opinion of the IPC (pursuant to an external review) on the new grounds raised by the University.

50. In relation to the first point, I disagree with the Applicant ’s submissions. While Public Service concerned an application under the repealed FOI Act, I am satisfied that the principles explained by the Tribunal apply equally under the GIPA Act. As the Tribunal explained, applying the principles of the Full Federal Court in Searle, the Tribunal is required to make the correct and preferable decision on all the material before it at the time of the Tribunal review and is not constrained to have regard to only the material put before, or the grounds relied upon by, the original decision-maker provided the requirements of procedural fairness were met in the proceedings before the Tribunal itself.

51. The Tribunal’s function to make the ‘correct and preferable decision’ has not changed under the GIPA Act: s63(1)&(2) of the ADR Act;O’Grady v Sutherland Shine Council [2020] NSWCATAD 50 at [17]; Danis v Commissioner of Police [2021] NSWCATAP 23, (“Danis Appeal”) at [37]-[38]; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [138]. In making a determination of what is the correct and preferable decision on administrative review under s100(1) of the GIPA Act, the Tribunal can take into account any consideration which could have been taken into account by the University in the reviewable decision under the GIPA Act, even those matters or considerations that were not taken into account by the original decision maker. That is subject, of course, to the requirement that the Applicant is afforded procedural fairness before the Tribunal itself.

52. Accordingly, the reasoning in both Public Service and Searle cannot be distinguished from the current matter and should be followed. I am fortified in that conclusion by the fact that Public Service has been considered and applied by the Tribunal in the context of applications under the GIPA Act in a number of decisions: Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 183 at [31]; Walker v NSW Department of Premier and Cabinet [2018] NSWCATAD 178 at [15]; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]; Fisher v Commissioner of Police [2021] NSWCATAD 44 at [101]. Veall at [8].

53. As to the Applicant being unrepresented and the question of procedural fairness, I accept the University’s submission that the Applicant was provided with a copy of the University’s submissions and evidence in support of the new grounds (at the time it filed its submissions on 24 September 2020) well in advance of the hearing and has been given a fair and reasonable opportunity to put on evidence and make submissions in opposition to those new grounds. In addition, the Applicant was also given the opportunity to file further written submissions after the hearing (which she did). It is well established that procedural fairness requires that a party be made aware of the case against them, and given a fair opportunity to meet that case with evidence and/or submissions. In my view, that requirement was met in this case. To the extent the Applicant submitted that she was entitled, as an unrepresented litigant, as a matter of procedural fairness in the context of a GIPA Act application and in the circumstances of this case, to have the new grounds nominated by the University considered by the IPC before they can be put to and considered by the Tribunal, I do not agree. The parties did not take me to any authorities that have considered this proposition, and there is nothing in the text or policy of the GIPA Act that would require this limitation. In any event, the Applicant did have the benefit of the IPC’s summary of principles and reasoning on the same public interest considerations under clause 1(e), (f) and (g) in relation to items 4, 5 and 6 of the Schedule and having regard to the various matters to which I have referred above, I do not consider the Applicant has been denied procedural fairness in relation to these additional grounds.

54. Accordingly, the Tribunal will consider whether the additional public interest considerations against disclosure nominated by the University in clauses 1(e), (f) and (g) of the Table apply to the documents in items 1 ,2 and 7 of the Schedule, to the extent that the conclusive presumption against disclosure of those items does not apply.

The University’s Evidence

55. The University read and relied on the affidavit of Ashley Anderson Fry sworn on 23 September 2020. Mr Fry also gave oral evidence at the Hearing and was cross-examined by the Applicant. Mr Fry told the Tribunal that his evidence is based on his review of the documents held by the University. Mr Fry is an Acting Senior Solicitor employed within the University’s Office of General Counsel (“OGC”) and is responsible for providing legal advice to the Vice Chancellor, senior executives and other officers of the University. He has been acting in that position since 4 May 2020 and has been a solicitor with the University since 16 March 2015. Prior to his appointment to the University, he was employed as a solicitor at FCB Workplace Law. He holds an unrestricted practising as a solicitor in NSW. He states that Mr Dominic Stewart, who has authored and received a number of documents from University staff (and the Applicant) in relation to the Applicant ’s complaint and GIPA Act application, is employed as a Senior Solicitor within the OGC, holds a current practising certificate and reports directly to General Counsel. He states that Mr Stewart is on extended leave and is not available to give evidence in these proceedings.

56. Mr Fry describes the structure of the OGC. He states that all solicitors employed within OGC report to the General Counsel (Mr Richard Fisher AM), who in turn has an ‘administrative reporting line’ to the Vice Chancellor. The Vice Chancellor does not supervise the legal advice and services provided by the OGC. All employed lawyers within the OGC hold a current practising certificate and are officers of the court who must comply with the legal and ethical professional standards of conduct required of legal practitioners. Mr Fry stated a core aspect of those standards is an obligation to provide independent, honest and professional legal advice to the University.

57. Mr Fry then states that all legal files held by the OGC are held in a secure environment and that only legal officers and administrative staff within the OGC have access to the electronic and physical files. He states that the OGC is not co-located with any other professional service provider or academic faculty within the University.

58. Next, Mr Fry describes the background to these proceedings (which is summarised above under the heading background). He then provides a brief description of two previous access applications made by the Applicant. In response to the first application (made on 26 September 2018), the University released a number of emails between Ms Jodi Dickson and the Recruitment consultant (Ms Jenna Flamsteed) in relation to the Applicant ’s job application. In response to a second access application dated 21 January 2019, the University provided some additional documents to the Applicant on 12 March 2019 and, following an external review by the IPC, released two additional documents on 9 May 2019.

59. Next, Mr Fry addresses the University’s claim that the emails in items 1, 2 and 7 of the Schedule of documents contain either a request for legal advice or the resulting legal advice. He states that both the requests and the legal advice given were provided for the dominant purpose of the OGC or its external lawyers, providing legal advice to the University or in contemplation of litigation regarding the Applicant’s complaints. He states that, based on his experience as an in-house lawyer and his review of the documents on the University file, the emails in items 1, 2 and 7 are protected by legal professional privilege.

60. Next, Mr Fry deals with the content of the documents in items 3, 4, 5 and 6. In relation to item 3, he states that the email records personal information of third parties and that one of them has objected to the release of the email. He then states that items 4-6 contain information provided by staff in confidence regarding the Applicant ’s complaint about senior staff to the ICAC. I will discuss his evidence on these matters below.

61. Under cross-examination by the Applicant, Mr Fry acknowledged that as an employee of the University he owed a duty of loyalty and fidelity to the University; disagreed that there was a conflict of interest between his duty as a legal practitioner and his obligations to the University as an employee; and rejected the proposition that he subordinated his duty to provide independent advice as a legal practitioner to his obligation of loyalty to the University as an employee. Mr Fry then confirmed his evidence that it is essential that the consultations and communications with staff concerning a request for information from an external agency, such as the ICAC, be kept confidential. He further gave evidence that disclosure of the emails from staff in connection with an ICAC request would prejudice the deliberative and consultation processes adopted by the University in response to requests from external agencies, including the ICAC, undermine staff confidence in that process and inhibit and discourage staff from co-operating in relation to future requests.

The Applicant’s case

62. While the Applicant did not give a statement or oral evidence in a formal sense, she made, as I have already noted above, oral and written submissions and relied on the IPC Reports to the extent they supported her access application. In her submissions, the Applicant submitted that disclosure of the withheld documents would: firstly, establish official misconduct by senior officers in the exercise of the University’s human resources functions in relation to the recruitment process for the Senior Workplace Advisor role; secondly, establish misconduct by senior officers of the University in investigating and responding the Applicant ’s written complaints concerning the recruitment process; thirdly, demonstrate that nominated senior officers of the University had failed to exercise their functions under the GIPA Act in good faith by deliberately withholding or concealing documents that responded to the access application including by making an improper claim for legal professional privilege in relation to some of the withheld documents. The Applicant further submitted that disclosure of the withheld documents could reasonably be expected to show that the University has an entrenched culture of non-disclosure and of withholding information that should be disclosed under the GIPA Act.

63. In support of these submissions, the Applicant referred to and relied on a number of specific emails written or received by senior University staff, annexed to Mr Fry’s affidavit. In circumstances where the evidence about the contents of most of the emails is not relevant to the issues to be resolved in these proceedings and in any event is uncontradicted, (because they annexed to Mr Fry’s affidavit) it is unnecessary to set that evidence out in any detail in these reasons. However, it is appropriate, in my view, to mention the substance of the following emails which are central to and underpin the Applicant ’s submissions on para [e) of the Note in s12(2), s112 and clause 5 of Schedule 1 of the GIPA Act.

64. Firstly, an email dated 7 August 2018 from Ms Jenna Flamsteed, an external recruitment consultant engaged by the University to Ms Jodi Dickson (Director, Workplace Relations at the University) in relation to the Senior Workplace Relations role applied for by the Applicant. The email is annexed to Mr Fry’s affidavit as AAF5 (at page 12) and is in the following terms:

Please see attached for the CV of [the Applicant]. She definitely comes with my recommendation and I think she could be a good option for the change role.

Please let me know if we can schedule and interview.

65. Secondly, an email dated 7 August 2018 from Ms Dickson responding to Ms Flamsteed’s email regarding the Applicant ’s job application. The email is annexed to Mr Fry’s affidavit as AAF5 (at page 11) and is in the following terms:

[the Applicant] is known to me.

[the Applicant] is not a fit for my team and I will not consider her for any type of employment.

66. Thirdly, an email dated 7 August 2018 from Mr Frank Strbik (Associate Director, Workplace Relations) to Ms Flamsteed, which is annexed to Mr Fry’s affidavit as AAP4 (at page 15), in the following terms:

I mentioned this person to you before at our previous meeting. She is not suitable for any role here.

67. Fourthly, an email dated 22 August 2018 from Ms Dickson copied to Mr Dominic Stewart, (a Senior Solicitor employed by the University) and Mr Strbik (annexure AAF5 at page 8 of Mr Fry’s affidavit)) in the following terms:

“I just wanted to give some feedback on this. I am not happy at all about this. Frank and I made it clear at the meeting had with Jenna and Diana for which you were present that we were not interested in seeing this candidate. Much to my surprise a week later Jenna send me through her application with a ringing endorsement. Both Frank and I then responded again being quite open with Jenna about why we did not want to see her. Now as you can (and this is no surprise to me given my knowledge of the candidate) … we are at threat of a GIPA application and if she gets one I am personally going to be very exposed because of what I said in the email …

I am copying in Dominic on this so that this email may be covered under privilege if this gets GIPAD. Dom I might need some advice on how to try and stop her getting access.

Not happy at all.”

68. Fifthly, an email dated 22 August 2018 from Mr Stewart to Ms Dickson (annexure AAF5 at page 10 of Mr Fry’s affidavit) as follows:

Agreed, it does not look too bad. We may be able to seek an exemption from GIPA on the suitability for public sector employment ground, but let’s see what happens. We can’t stop an application being made!

69. Mr Stewart is responding to an email from Ms Dickson of the same date in which (at annexure AAF5, page 10) she says:

“Just to round out my last rant of an email this is what I sent to the recruiter.

Actually its not as bad as I thought”.

70. Sixthly, an email dated 22 August 2018 from Ms Flamsteed to Ms Dickson (annexed at AAF5, page 9) as follows:

Can we please catch up on [Applicant ]? She is insisting on feedback on her application, see below.

[Extract of an email from the Applicant to Ms Flamsteed included in the email]:

Can you please contact them and get me some feedback? If the university declines to provide feedback, I can put in a Government Information (Public Access) Act 2009 (GIPA Act) application. However, I would prefer to not to have to take such a formal approach.

I have pushed back and said her CV simply wasn’t reviewed because you had already identified preferred candidates and as such no feedback is available, but she is insistent.

71. Seventh, an email dated 22 August 2018 from Ms Dickson responding to Ms Flamsteed’s email (annexure AAF4, page 22) as follows:

The feedback I have for [the Applicant ] is that compared to other candidates she does not appear to have the fit in terms of complaint management, and working with people managers that we require, and that by the time we received her application we had already settled on appropriate candidate and did not wish to see any further Applicant s.

72. Eight, an email dated 23 October 2018 from Mr Tim Robinson (Manager of the University’s Archives and Records Management Services) to Mr Stewart and Ms Dickson which attaches a copy of documents which were released to the Applicant in response to the earlier GIPA Act access applications, (annexure AAF7, page 28).

73. Ninth, Ms Dickson’s’ email of 23 October 2018 to Mr Stewart and Mr Strbik (annexure AAF7, page 28) as follows:

Excellent – can’t wait to get the follow up call from [the Applicant]. (Emoji face).

74. Tenth, an email from Mr Strbik to Ms Dickson of 30 January 2019 as follows:

Is this the second GIPA by [the Applicant]?

75. Eleven, Ms Dickson email response to Mr Strbik of 30 January 2019 as follows:

It sure is.

Do you have the email with her CV on it?

Submissions and Findings

Conclusive presumption against disclosure: Legal professional privilege.

76. The University submitted that there was a conclusive presumption against disclosure of the information in items 1, 2 and 7 of the Schedule of Documents on the basis that the information falls within client legal privilege because they were prepared for the dominant purpose of the University’s lawyers providing legal advice. Clause 5 of Schedule 1 to the GIPA Act provides for a conclusive presumption against disclosure if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. In these reasons, legal advice privilege, and legal professional privilege shall be referred to as “privilege” or “LPP”.

77. As the Tribunal stated in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31]:

"The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information."

Legal professional privilege - applicable principles.

78. In Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [85]-[86], the Appeal Panel observed that:

[85] Legal professional privilege is a long-standing rule of law. At common law, the privilege protects confidential communications between legal practitioners and their clients from disclosure under compulsion of a court or statute. The privilege protects two kinds of confidential communication between a client and his or her lawyer. These are confidential communications that are made for the dominant purpose of seeking or being provided with legal advice (advice privilege) and confidential communications that are made for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings.

[86] Sections 118 and 119 of the Evidence Act 1975 (NSW) are a reflection of the common law doctrine of legal professional privilege. However, the terminology that is used in these sections is “client legal privilege”, which is an appropriate description as the privilege, or right is that of the client and not the lawyer. In this case, the right to make a claim for privilege was that of the respondent, who bore the onus of establishing that the information for which it sought to make that claim was a confidential communication made with its lawyers for the dominant purpose of seeking or for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings and that privilege had not been waived.

79. In NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245, Senior Member Ransome said at [15]:

[15] The weight of authority is that privilege under the GIPA Act refers to the concept of client legal privilege as defined in the Evidence Act 1995: Larsson v Office of Environment and Heritage [2014] NSWCATD 136 at [25]; Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [61]; Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [27]; Hargreaves v University of New England [2013] NSWADT 233 at [19] and Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [26].

80. However, as the Appeal Panel noted recently in ECN v Commissioner of Police [2020] NSWCATAP 267 (at [42]):

The position was questioned on appeal in Transport for NSW v Robinson [2018] NSWCA TAP 123, however, ultimately, the Appeal Panel determined that it was not necessary to determine whether the application of cl. 5 is by reference to the common law or Evidence Act for the purpose of resolving the appeal (at (43]).

81. Nonetheless the Tribunal has also accepted that, for the purposes of proceedings under the GIPA Act, the principles under the Evidence Act are effectively the same as those that apply under the common law: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43].

82. In NuCoal, Senior Member Ransome stated at [16]-[17] that:

[16] The essential elements of client legal privilege as set out in sections 118 and 119 of the Evidence Act are:

▪   the existence of a client and lawyer relationship;

▪   the confidential nature of the communication or document; and

▪   the communication or document was brought into existence for the dominant purpose of either, (a) enabling the client to obtain, or the lawyer to give, legal advice or provide legal services, or, (b) for use in existing or anticipated litigation.

[17] Section 117 of the Evidence Act, which defines “client” to include an employer of a lawyer if the employer is a State or a body established by a law of a State, confirms that in-house lawyers and their internal client may be subject to a claim of client legal privilege. The provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 (see, for example, Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 and Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218). It is important to note that in-house lawyers must possess the requisite independence in respect of the advice being given: Seven Network Ltd v News Ltd [2005] FCA 142.

Lawyer/ client relationship

83. In Jackson v University of New South Wales [2019] NSWCATAD 224, Senior Member Higgins observed at [105]-[106] that:

[105] Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged.

[106] Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the ‘dominant purpose’ of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.

84. In Rich v Harrington [2007] FCA 1987 at [46], Branson J stated that the requirement that in-house lawyers act independently will be satisfied if personal loyalties, duties or interests do not influence the professional legal advice given. (This approach was also adopted in Aquila Coal v Bowen Central Coal Pty Ltd [2013] QSC 82 at [9], citing Telstra Corporation Ltd v Minister for Communications Information Technology and the Arts (No 2) [2007] FCA 1445 at [35]). In Archer Capital v Sage Group (No 2) [2013] FCA 1098 (at [44], Wigney J went a step further and expressed the view, in obiter, that there is in fact no separate requirement of independence in the case of privilege claims regarding an employed or in-house lawyer:

[44] … if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client.

Dominant purpose

85. In P v Western NSW Local Health District [2016] NSWCATAD 109, Senior Member Molony stated at [48] that:

[48] 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].

278. It submitted that the personal information in item 3 was provided for the purpose of enquiring in to the Applicant ’s complaint about the people identified in the email. It submitted that disclosure to the Applicant in response to her access application under the GIPA Act would not be directly related to that purpose: s18(1)(a) of the PIPPA Act. In his affidavit, Mr Fry states that one of the individuals named in the email has objected to the release of their personal information.

279. The University also submitted that it is not usual practice to disclose personal information provided in relation to a complaint about staff in response to a GIPA Act application: s18(1)(b) of the PIPPA Act. In its further submissions in reply, the University argued that the exception in s18(1)(b) is directed to information that is collected in a systematic way, (for example in a data base) rather than an email and accordingly its staff would not be aware that any personal information in an email would usually be disclosed in response to an access application under the GIPA Act. In support of this contention, the University relied on the reasoning of the Appeal Panel in Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 at [27].

280. Put against this, the Applicant submitted that the exception in s18(1)(b) of the PIPPA Act would apply. This is because the individuals referred to in the email are staff of the University and would be aware that their names and other personal information recorded in an email would usually be disclosed to a person who makes an application under the GIPA Act.

281. The Applicant also submitted that the University’s contention that it is not reasonably likely that staff would be aware that personal information of the kind recorded in an email (rather than in a data base) would be publicly disclosed is an argument unsupported by evidence. The Applicant submitted that the University did not put on any evidence from university staff to explain their understanding about what information would usually be disclosed in response to a GIPA application and nor has Mr Fry addressed the matter in his evidence. The Applicant submitted that the University has failed to discharge the onus of proof under s105 and that its argument that the exception in clause 18(1)(b) of the PIPPA Act does not apply to personal information in an email must be rejected.

Consideration

284. I am satisfied, for the reasons I have given above in relation to clause 3(a), that the information that has not been disclosed in item 3 is personal information of the individuals named in the email.

285. I am also satisfied that the permitted disclosure in the exception in s18(1)(a) of the PIPPA Act does not apply. On the material before the Tribunal, the personal information in item 3 was collected for the purpose of enquiring about a complaint made by the Applicant and not for the purpose of disclosing it to the Applicant pursuant to an application under the GIPA Act. Accordingly, I am satisfied that disclosure of the personal information in item 3 in response to an application under the GIPA Act would not be directly related to the purpose for which the information was collected.

286. I also find that that it is not reasonably likely that University staff, in sending and receiving emails concerning a complaint about a university employee, would be aware that personal information recorded in such an email would be disclosed to a person who makes an application under the GIPA Act.

287. Accordingly, I am satisfied the University has established that clause 3(b) applies as a public interest against disclosure of item 3.

Weighing the considerations for and against disclosure of item 3

288. Having come to the conclusion that clause 3(a) and 3(b) apply to the personal information in item 3, I turn now to the balancing exercise required by s13 of the GIPA Act. In weighing the countervailing considerations, I have taken into account the principles summarised above at [27]-[30], the presumption in favour of disclosure, the effect of disclosing the particular information recorded in the relevant emails (Destination NSW at [69]; Forbidden Foods at [52]; Taylor at [20]); and the fact that disclosure under the GIPA Act is in effect disclosure to the public at large and cannot be subject to conditions and restrictions.

289. The University submitted that there is a significant public interest against disclosure of personal information of the people named in the email because: (a) they are the subject of a complaint and the allegations the subject of the complaint have not been tested, (b) one person identified in the email has objected to the release of their personal information, (c) there can be no restrictions imposed on the Applicant ’s use or subsequent disclosure of the personal information; (d) disclosure of the names of staff against whom a complaint has been made does not advance the public interest consideration in the transparency and accountability of the University’s complaint management and human resources functions particularly given that the Applicant already knows the identity of the staff the subject of the complaint.

290. The fact that personal information is disclosed in the email and one person has objected to disclosure of their personal information is not determinative of the matter: Lonsdale v University of Sydney [2016] NSWCATAD 176 at [91], Anderson v Tweed Shire Council [2017] NSWCATAD 61 at [19]; IPC Guideline 4 at [3.9]. Having considered the contents of the email, the personal information recorded in it is, to adopt the description of Senior Member McAteer in Lonsdale, ‘fairly benign’. While the email identifies the two staff against whom a complaint has been made, it discloses nothing more than the fact a complaint has been made. The email does not disclose the nature or content of the alleged misconduct or disclose any sensitive personal information about the individuals referred to in the document. On that basis, I do not consider the disclosure of the personal information of the two employees to be a particularly strong or persuasive consideration against disclosure in the circumstances of this application and is therefore entitled to minimal weight.

291. The public interest considerations in favour of disclosure are, however, not entitled to a great deal of weight either. This is because the effect of disclosing the particular information recorded in the relevant email is not going to: (a) contribute in any substantial way to the public interest of enhancing transparency and accountability of the University’s complaint handling and recruitment functions and decision making, both in the circumstances of this particular case, and at a broader, more systemic level, (b) advance the Applicant’s understanding as to the integrity or thoroughness of the University’s investigation of the complaints or help her understand its complaint handling processes more broadly, and (c) because, as the University submitted, the Applicant already knows the names of the people against whom the complaints have been made.

292. That being so, I do not find the evidence and submissions as to the expected effects of disclosing the limited personal information recorded in the relevant email as weighing in favour of a conclusion one way or the other. Put slightly differently, I have concluded that the considerations for and against disclosure of item 3 are evenly balanced. The test under s105 of the GIPA Act however requires the University to justify its decision to withhold the email on the basis that the public interest consideration against disclosure outweigh those in favour. The University has not discharged that onus. It has not persuaded me that the public interest consideration against disclosure of the personal information in the withheld email outweighs the public interest considerations for disclosure and accordingly item 3 should be released to the Applicant.

Referral under s 112 – whether an officer has failed to exercise a function in good faith

293. The next issue to be considered is whether as a result of this review, the Tribunal is satisfied that any or all of Ms Dickson, Mr Stewart or Mr Strbik have failed to exercise in good faith a function conferred on them by or under the GIPA Act and, if so, whether the matter should be brought to the attention of the Minister under section 112. Section 112 of the GIPA Act permits but does not require the Tribunal to bring a matter to the attention of the relevant Minister if an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act.

294. Section 112 has been considered by the Appeal Panel in a number of decisions: Warren v NSW Trustee and Guardian [2014] NSWCATAP 20; Alam v Insurance and Care NSW [2020] NSWCATAP 215; and Zonnevylle v Department of Justice [2019] NSWCATAP 44.

295. In Zonnevylle at [87], the Appeal Panel summarised the principles relevant to a referral under s112 of the GIPA Act. At [48]-[50] and [58], the Appeal Panel said:

[48] The Tribunal has administrative review jurisdiction to exercise the powers under s 111 and s 112 of the GIPA Act. The discretion to refer any matter to the Information Commissioner or to bring certain matters to the attention of the Attorney General are functions conferred on the Tribunal by ‘enabling legislation’ (the GIPA Act), in connection with the conduct or resolution of administrative review proceedings: NCAT Act, s 30(2).

[49] Section 112 has four elements:

1. the formation of the opinion (“if NCAT is of the opinion”);

2. the circumstances in which the opinion may be formed (“as a result of an NCAT administrative review”);

3. the nature of the opinion (“that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act”); and

4. the fact that bringing the matter to the attention of the Minister is discretionary (“may bring the matter to the attention of the Minister”).

[50] The second element is that the opinion must be formed “as a result of an NCAT administrative review”. The administrative review is the review of any reviewable decision the Department has made under the GIPA Act. We agree with the Tribunal’s finding that s 112 does not give the Tribunal power to carry out an inquiry into the officer’s conduct that is separate from or additional to the administrative review proceedings.

[58] The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications …”. The power in s 112 is to bring to the Minister’s attention a failure of an officer to exercise in good faith a function conferred on the officer. Although s 112 is headed ‘improper conduct’, headings to these sections are not part of the GIPA Act: Interpretation Act 1987, s 35(2). The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is “a failure to exercise in good faith a function conferred on the officer”. Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112. The same reasoning applies to s 111.

296. In Alam, the Appeal Panel stated at [26]:

[34] The issues the subject of s 112 of the GIPA Act are not issues which are intended to be dealt with by the Tribunal in a decision on an administrative review. What is contemplated by the plain words of the section is that, on the completion of an administrative review, NCAT may, on its own initiative, bring the matters set out in the section to the attention of the Minister who has responsibility for the agency in question. The issues the subject of s 112 of the GIPA Act are not issues which are intended to be decided in an administrative review decision concerning an Applicant for information and an agency.

297. In Warren, the Appeal Panel observed at [41]:

[41] embarking an inquiry of the kind that s 112 contemplates would be a grave step reserved for very rare cases.

298. The concept of ‘good faith’ was considered by Senior Member Montgomery in Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303 at [99]-[105] as follows:

[99] In Zonnevylle from paragraph [27]I also considered thestandard to be applied in relation to the question of good faith.

[100] What is required for something to be done or omitted in good faith may vary from one case to the next. I have previously expressed the view that the test of good faith is predominantly subjective: Saggers v Environment Protection Authority [2013] NSWADT 204; Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189.

[101] However, there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. Further, serious and careful consideration must be given to the application; there must be more than a cursory review. The GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements: Shoebridge at paragraphs [37], [40] – [42].

[102] An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account.

[103] It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received

[104] The obligation to perform their task in good faith will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures. The exercise of a power in good faith requires an honest and conscientious approach.

[105] However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer’s conduct demonstrates something more than honest ineptitude.

Submissions

299. At the invitation of the Tribunal both parties filed detailed written submissions on whether a referral under s112 should be made. I have read those submissions carefully however I do not propose to set out all of the arguments in detail.

300. In summary, the Applicant submitted that:

1. As a threshold issue, s112 applies to the conduct of an officer who has exercised a function under the GIPA Act in connection with any access application made by the Applicant and is not limited to aspects of the reviewable decision the subject of these proceedings. The Tribunal is also entitled to consider the conduct of relevant officers in relation to the earlier access applications because the decisions made, and the documents released under those applications, are in evidence in these proceedings. In addition, the Applicant submitted that s112 extends to the conduct of an officer in relation to a proposed access application. The Applicant submitted that the concept of exercising a ‘function’ under the Act should not be interpreted narrowly.

2. she does not bear the burden of proving that the officers have failed to act in good faith because she did not make the request of the Tribunal to refer the matter to the Minister under s112.

3. Three officers of the University, Ms Jodi Dickson, Mr Frank Strbik and Mr Dominic Stewart failed to exercise functions conferred on them under the GIPA Act in good faith. I will consider the specific allegations below.

4. The Applicant submitted that the ‘grave and serious cases’ threshold referred to in Warren is met, because the evidence demonstrates that the nominated officers deliberately and intentionally concealed and withheld documents and conspired to limit and obstruct access to information that the Applicant was entitled to under the GIPA Act.

301. Put against this, the University submitted that:

1. The Applicant bears the onus of establishing the facts on which she relies to support a referral under s112. The University submitted that given the Applicant ’s repeated allegations of serious misconduct by nominated officers of the University, both in the written submissions and at the hearing, the Applicant in effect has requested a referral to the Minister under s112 and accordingly has taken on a role “comparable to that of a prosecutor;” Saggers at [28].

2. A referral under s112 “is a very grave step, reserved for very rare cases” (Warren at [41]) which must be proved to a high standard (Zonnevylle at [14]).

3. The power in s112 is limited to a review of the exercise of specific functions by specific officers which are connected to the reviewable decision and not in relation to any other conduct. The Tribunal can only have regard to the material before it in relation to the reviewable decision. In addition, the Tribunal cannot have regard to conduct that predates the making of an access application under the GIPA Act.

4. The Tribunal must be satisfied that the nominated officers of the University were exercising a function under the GIPA Act. It submitted that a function under the Act is defined under s9 to include a power, authority or duty exercised under the Act. Referring to Zonnevylle at [32]-[36], the University submitted that those functions include: (a) providing reasonable advice and assistance so as to enable a person to make an access application, (s16); (b) decide whether an access application is valid (s51); (c) undertaking reasonable searches to find information that responds to the access application, (s53); (d) decide an access application, (s57-58); and, (e) refuse to deal with an application, (s60).

5. It submitted that the fact a person authored or received an email that refers to the GIPA Act does not necessarily mean that person was exercising a function under the Act. It further submitted that none of the conduct complained of, with one possible exception, involved the exercise of a function by the nominated officers under the GIPA Act. I will return to the University’s submissions about whether the nominated individuals were exercising a function below.

6. Even if the officers were exercising a relevant function:

1. there is no evidence that they were not exercising those functions in good faith;

2. the Tribunal retains a discretion about whether to refer a matter under s112.

7. That the allegations of general misconduct by the University and alleged ‘obstructive behaviour’ of officers in relation to GIPA Act applications, unrelated to the reviewable decision, are irrelevant and beyond the jurisdiction of the Tribunal under s112. In any event, the University submitted that there is no evidence to support the Applicant ’s generalised allegations of misconduct.

302. On the basis of the Applicant ’s submissions, and the University’s response, the specific conduct that is alleged to have constituted a failure to exercise a function under the GPA Act in good faith can be summarised as follows:

303. Ms Jodi Dickson: The Applicant makes a number of serious allegations that Ms Dickson, who as mentioned above is the Director, Workplace Relations at the University, exercised functions under the GIPA Act to conceal and undermine the Applicant ’s access to information. The Applicant submitted that the email from Ms Dickson dated 22 August 2018 (which is set out at [67] above) demonstrates that she was attempting to improperly influence the outcome of the Applicant ’s access application and furthermore, directing one of the University’s senior in-house lawyers, Mr Stewart, to prevent the Applicant’s access to that information by making an improper claim for LPP.

302. Next, the Applicant submitted that Ms Dickson’s ‘bad faith’ in relation to the Applicant ’s access request can be discerned from an email chain dated 23 October 2018 between her, Mr Stewart and the archives manager, Mr Robinson, (which is set out above in my discussion of the Applicant’s case) in which Ms Dickson was provided with a copy of the documents released to the Applicant in response to the first access application. The Applicant submitted that Ms Dickson violated her ‘privacy rights’ by seeking access to her personal information in those documents. The Applicant then submitted that Ms Dickson’s ‘subjective bad faith’ and hostility towards the Applicant – and her rights under the GIPA Act - is evident from her (brief) email to Mr Stewart dated 23 October 2018 (which is set out at above).

303. Against this, the University submitted that Ms Dickson was not exercising a function under the GIPA Act in relation to the email dated 22 August 2018 because firstly, it predates the first access application, dated 26 September 2018, and accordingly there is no nexus between the conduct and the reviewable decision. Secondly, that Ms Dickson was not exercising any of the specific functions under the Act (outlined above) in relation to the application in that email because she not conducting a search under s53, or deciding the application under ss 57-58.

304. In relation to email chain dated 23 October 2018, the University submitted that the Applicant has not identified what function Ms Dickson was exercising under the GIPA Act in accessing information released to the Applicant in a previous GIPA request (even if that included the Applicant ’s personal information). It further submitted that there was nothing improper about Ms Dickinson seeking access to the documents released in response to a previous GIPA Act application because documents released under the GIPA Act are taken to have been released to the public at large without any restrictions: ss15(e) and 73 of the GIPA Act; Danis at [86].

305. Next, the University submitted that, in any event, neither email chain was evidence that Ms Dickson was obstructing the Applicant’s access to, or concealing documents that responded to, the application.

306. Mr Dominic Stewart: In essence, the Applicant submitted that Mr Stewart acted in bad faith by making an improper claim for LPP in relation to information sought by the Applicant; acted in concert with Ms Dickson to conceal that information (the email chain dated 22 August 2018 (set out above at [67]]); and improperly sought and was given a copy of information previously released to the Applicant without her consent (email dated 4 April 2019 from Mr Robinson to Mr Stewart, enclosing the relevant information).

307. Put against this, the University submitted firstly, that in relation to the conduct recorded in the email of 22 August 2018, Mr Stewart was not exercising a function under the GIPA Act because his email predated the GIPA Act application. Secondly, that the email chain dated 4 April 2019 related to the Applicant ’s complaint to the ICAC and not the Applicant ’s access application and did not involve the exercise of a function under the GIPA Act. Thirdly, and in an event, that the email chains were not evidence of the serious allegations of bad faith and misconduct by Mr Stewart as alleged by the Applicant.

308. Mr Frank Strbik: In essence, the Applicant submitted that Mr Strbik exercised a function under the GIPA Act in bad faith in an email exchange with Ms Dickson dated 30 January 2019 (set out at [74] above) in which he says he is trying to locate a copy of the Applicant’s CV. The Applicant contends that the email demonstrates that Mr Strbik was acting in concert with Ms Dickson to conceal information and, by searching for a copy of the Applicant ’s CV, he had violated the Applicant ’s right to privacy in exercising a function under the Act.

309. As against this, the University submitted while it is arguable Mr Strbik was exercising a function under s53 of the GIPA Act by undertaking searches for information applied for by the Applicant, there is no evidence that he did not exercise those functions in good faith.

Consideration

312. I can dispose of the s112 referral issue about whether the nominated persons employed by the University have failed to exercise a function in good faith shortly. In doing so, I do not consider it necessary to address the disagreement between the parties as to the correct interpretation of s112 to the specific conduct alleged. That is because even if I consider all of the conduct alleged to involve the exercise of a function under the GIPA Act, the circumstances and evidence set out above, cumulatively considered, falls well short of establishing that Ms Dickson, Mr Strbik or Mr Stewart exercised any statutory function under the GIPA Act other than in good faith.

313. I will now turn to the specific allegations against each officer.

314. Ms Dickson: As I have already found above in relation to para (e),of the Note in s12(2), some of the comments in Ms Dickson’s emails of 22 August 2018 were incautious and inelegant. However, in my view, based on all of the material before the Tribunal, I am not satisfied that there is evidence sufficient to support a conclusion that she was attempting to influence the outcome of the access application; conceal documents relating to the recruitment decision, including concealing the sharp views expressed in her email of 22 August 2018, or directing Mr Stewart to claim the documents were privileged as a device to avoid disclosure. Nor does any of the evidence before me support a conclusion that the emails sent by Ms Dickson had the practical effect of interfering with the proper discharge by officers of the University of their obligations in dealing with and determining the Applicant ’s access applications. To similar effect, there is no rational basis on which the Tribunal could conclude that Ms Dickson, in receiving information about the Applicant ’s previous access applications in the email chain of 23 October 2019, was obstructing the release of information to the Applicant, or involved the exercise of any other function under the GIPA Act in bad faith even if, as the Applicant alleges, her access was in breach of the Applicant’s privacy rights.

315. Mr Stewart: In my view, the Applicant has made a number of serious allegations against Mr Stewart, without proof. In his email of 22 August 2018, Mr Stewart acknowledges receipt of the emails from Ms Dickson about the recruitment process and possible GIPA Act application; makes the uncontroversial statement that the University “may be able to seek an exemption from GIPA” but that the University “can’t stop an application being made”. There is nothing in that email or any of the other material before the Tribunal that supports the Applicant ’s allegations that Mr Stewart exercised a function under the Act in bad faith. As to the allegation that Mr Stewart made an improper and unlawful claim for LPP under direction from, or in concert with Ms Dickson (or on his own initiative) in order to conceal information from the Applicant, or cover up the alleged misconduct by Ms Dickson and others in relation to the recruitment process or the University’s investigation of the Applicant ’s complaints, there is no evidence to support that conclusion, for the reasons I have given above.

316. Mr Strbik: The allegations against Mr Strbik do not rise above the level of suspicion or assertion. There is nothing in the email exchange dated 30 January 2019 that is reasonably capable of supporting the conclusion or inference that Mr Strbik, in searching for an email attaching the Applicant ’s CV, was not exercising a function under the GIPA Act in good faith. It cannot be said that the comments made in Mr Strbik’s email to the recruitment consultant about the suitability of the Applicant for employment with the University (set out at [66] above) involved the exercise of a power or function under the GIPA Act.

317. As outlined above, the Tribunal's jurisdiction to refer a matter to the relevant Minister is limited to that set out under s112 of the GIPA Act. The Applicant’s submissions that some of the documents already disclosed suggests serious maladministration within the University in relation to its recruitment processes, complaints handling and investigation processes and other allegations of misconduct by senior staff are issues that are outside the Tribunal's jurisdiction.

318. Using the language of the Appeal Panel in Warren, referring a matter to the Minister under s112 would be a grave step reserved for very rare cases. This is not such a case. For the reasons I have given above, I am not satisfied on the material before me that any of the nominated officers has failed to exercise a function under the GIPA Act in good faith.

Conclusion and orders

319. For the reasons given above, I have concluded that the correct and preferable decision is to withhold disclosure of the emails listed in items 1, 2 and 7 of the Schedule (except for item 1.7) and for the documents identified at Items 1.7, 3, 4, 5 and 6 of the Schedule to be released to the Applicant within 28 days of the publication of these reasons.

320. Accordingly, the Tribunal Orders that:

1. The decision under review dated 2 April 2020 is varied to the following effect:

1. Items [1.7], [3], [4], [5], and [6] listed in the Schedule be released to the Applicant within 28 days of these orders.

2. the decision under review is otherwise affirmed.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of:

1. the material filed by the respondent on a confidential basis,

2. those paragraphs of these reasons identified as [NOT FOR PUBLICATION],

3. the submissions made in private before the Tribunal, and

4. the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013,

is prohibited. That material is not to be released to the Applicant or the public.

3. Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

1. The Applicant is to be identified by the pseudonym ‘EMC’ at all times in this decision and in the proceedings generally.

2. The identity of the Applicant is not to be disclosed by the Respondent, or by any other persons and she is to be referred to as ‘EMC.’

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

16 August 2021 - Fixed gaps formatting on coversheet.