Freedman v Macquarie University

[2008] NSWADT 105

CITATION:	Freedman v Macquarie University [2008] NSWADT 105
DIVISION:	General Division
PARTIES:	APPLICANT Craig Farrell Freedman RESPONDENT Macquarie University
FILE NUMBER:	073176
HEARING DATES:	21 September 2007
SUBMISSIONS CLOSED:	14 December 2007
DATE OF DECISION:	8 April 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - personal affairs - confidential material - internal working documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	BW v Registrar New South Wale Medical Board [2002] NSWADT 76 Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25 Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 Commissioner of Police v District Court of NSW and Perrin (1993) 31 NSWLR 606 Director-General of Education and Training v Mullett and Randazzo [2002] NSWADTAP 13 Director-General, Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gilling v Hawkesbury City Council (1999) NSWADT 43 Harris v Australian Broadcasting Corporation (1984) 51 ALR 581 McKinnon v Secretary, Department of Treasury [2006] HCA 45 P v Greater Western Area Health Service [2007] NSWADTAP 57 Re Hutchinson and Department of Human Services (1997) 12 VAR 422 Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Todd v University of New South Wales [2004] NSW ADT 250 TW v TX [2005] NSWADT 262
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 By his application dated 14 August 2006, the Applicant sought access to documents under the Freedom of Information Act 1989 (“the FOI Act”) in the following terms:

“In accordance with the NSW ordinances regarding Freedom of Information, I would like to request and obtain a copy of the Collins report. This was an evaluation of the Division of Economic and Financial Studies as conducted by John Collins in 2005 (“the Collins review”). It was based on a series of interviews and submissions. The report was presented to Vice Chancellor Stephen Schwartz in 2006.”
2 The Applicant subsequently clarified that the application as follows:
“The Collins Report (Review of the Division of Economic and Financial Studies) I have requested is not the version edited by Professor Loxton and presented to the Senate this week. (I might add that it was not accepted by the Senate). I have a copy of this. I am asking to see the penultimate and the final report that was not edited by Professor Loxton. I would consider this Stage 1 of my request.

After thinking about our discussion, I would subsequently like to receive the submissions from staff, both from named staff and unnamed staff (confidential statements number 1-11). That would be the second stage.”

3 The University identified a number of documents as falling within the scope of the application. The Applicant was provided with a schedule of 24 documents. Several were released but the majority were withheld. Included in the schedule of withheld documents was Document 15, identified as ‘ Copy of Draft Report Review of the Division of Economic and Financial Studies 2005’ . Document 15 is the only document in dispute.

4 The Applicant sought an internal review of the initial determination. The internal review was undertaken by Professor Jim Piper, Deputy Vice Chancellor (Research) who determined that Document 15 was exempt under clauses 6(1) and 13(b) of Schedule 1 to the FOI Act.

5 The Applicant then sought an external review of the determination the New South Wales Ombudsman. The Ombudsman’s report concluded that the University’s determination was reasonable but suggested that the University give consideration to releasing parts of Document 15 that are different from the final report provided that such information does not allow people who made submissions to the Review Committee to be identified. It also requested the University consider releasing any submission made to the Review Committee provided that the University considers the person making the submission does not object to its release.

6 The Applicant then sought an external review by this Tribunal.

Applicable Legislation

7 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information.

8 Section 24(1) of the FOI Act provides that after considering an application for access to a document, the agency is to determine whether access to the document is to be given or refused, and any charge payable for giving access and/or dealing with the application. Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document. Grounds on which access may be refused are set out in section 25 and include that a document is ‘an exempt document’. An ‘exempt document’ is defined in section 6 to mean (among other things) a document referred to in any one or more of the provisions of Schedule 1. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified.

9 Clause 6 of Schedule 1 of the FOI Act provides as follows:

6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

10 Clause 9 of Schedule 1 of the FOI Act provides as follows:
9 Internal working documents

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

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place,

in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

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

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

(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.

11 Clause 13(b) of Schedule 1 of the FOI Act provides as follows:
13 Documents containing confidential material

A document is an exempt document:

…

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

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

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

12 Clause 16 of Schedule 1 of the FOI Act provides as follows:
16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

…

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel, or

…

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

The University’s case

13 The University asserts that Document 15 is exempt pursuant to clauses 6, 9, 13(b) and 16(a)(iii) of Schedule 1 to the FOI Act. It relies on a statement of evidence dated 20 September 2007 of Mr Nicholas Crowley, the Employee Relations Manager in the Human Resources Office at the University.

14 Mr Crowley provided a statement concerning the basis on which submissions were made to the review in 2005 of the Division of Economic and Financial Studies, conducted by Professor John Collins, and the adverse impact which release of Document 15 would have upon personnel management in the Division.

15 Ms Allars provided detailed submissions on the legal principles and authorities regarding of each of those clauses and their application to Document 15.

16 The University also asserts that release of Document 15 is not in the public interest.

Clause 6

17 The University argues that the information in issue in the present case is the identities of persons who gave evidence in the course of investigations, their reasons for giving information and its content. It contends that this is not information given in the course of the exercise of any management or investigatory responsibilities of those persons. People who made submissions to the Review did not give information in supervisory capacities as holders of positions or in exercise of official management responsibilities. They made submissions and gave information voluntarily, in a personal capacity, to assist in the investigation of problems in the administration of the Division. Document 15 repeats in a summarised and partial manner, the information that is contained in their confidential submissions.

18 Ms Allars submits that the information is in the same category as that considered in Re Hutchinson and Department of Human Services (1997) 12 VAR 422, Chief Executive Officer, State Rail Authority v Woods [2003] NSWADTAP 25 TW v TX [2005] NSWADT 262 and Todd v University of New South Wales [2004] NSW ADT 250. In P v Greater Western Area Health Service [2007] NSWADTAP 57 the Appeal Panel upheld the Tribunal's decision that the transcripts of interviews and signed statements by nine witnesses in the investigation, who also objected to release of this material, fell within the scope of the personal affairs exemption and it would be unreasonable to disclose that information.

19 Accordingly, it is submitted that of the information in Document 15 is information concerning the personal affairs of those who made the submissions.

20 Ms Allars further submits that in the present case disclosure would be unreasonable. She argues that some of the information in Document 15 is personal information of staff members and that sufficient personal characteristics are given to enable a person who has minimal knowledge of the Division to identify those individuals. Disclosure would have no benefit other than to excite curiosity about the matters of which those staff members have complained and how those matters affect them. It would do harm to those who can be identified, causing them embarrassment and hardship.

21 Ms Allars referred to the decisions in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 and BW v Registrar New South Wale Medical Board [2002] NSWADT 76 in support of her submission that disclosure would be unreasonable. She submits that the public interest in disclosure is outweighed by the fact that Professor Davis, whose administration was the subject of investigation, opposed the disclosure of Document 15, and that the submissions from which the comments were derived for inclusion in the draft report were obtained in circumstances where the complainants understood their submissions would remain confidential.

Clause 9

22 The University argues that Document 15 is exempt under clause 9 of Schedule 1 to the FOI Act. It contends that it is clear from the face of the document that the information is not merely factual or statistical material of the kind referred to in clause 9(2)(b). It contains deliberations and evaluative material. Ms Allars submits that the deliberation referred to in clause 9(1)(a)(ii) refers to the thinking processes of the respondent, including its reflection upon the wisdom and expediency of a proposal, a particular decision or a course of action. She referred to views expressed in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at 606 where the Administrative Appeals Tribunal said:

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
23 Document 15 was authored by a group of academics external to the University and contains opinion, advice and recommendations obtained, prepared and recorded "in the course of, or for the purpose of, the decision-making functions" of the University, in particular for consideration by the University's Council. Ms Allars relies on the Full Federal Court decision in Harris v Australian Broadcasting Corporation (1984) 51 ALR 581 as support for her submission that the scope of clause 9(1) extends to documents which originate outside an agency but which are supplied for use in the agency’s deliberative processes.

24 For an agency to claim that documents are exempt under clause 9, there must be a public interest in non-disclosure that outweighs the public interest in disclosure. The University contends that in the present case disclosure would, on balance, be contrary to the public interest. It argues that as a general principle it is in the public interest that material communicated in confidence be protected from release, and that the disclosure of Document 15 would reasonably be expected to give rise to speculation as to who said what, and what incidents have been described, in the confidential submissions. It would prejudice the ability of the University to obtain from its employees candid comment, given in their personal capacities, about management practices and incidents in the workplace. It further argues that the disclosure of Document 15 would also impair the integrity and viability of the decision-making processes in the University relating to the management and assessment of its personnel. It says that the disclosure would undermine personnel management in the Division built on implementation of the recommendations of the Collins Review.

25 The University contends that there is no countervailing benefit to the public that outweighs this impairment of personnel management in the University; accordingly the public interest in non-disclosure outweighs any interest of the Applicant in obtaining access to Document 15.

Clause 13(b)

26 The University says that the information in Document 15 was obtained in confidence and that staff members expect that their personal information will be kept confidential. It further asserts that unless there is protection, it is likely that such information will not be provided to the University by its staff in response to a request for cooperation with a review of a Division. Therefore, disclosure could reasonably be expected to prejudice the future supply of information to the University from voluntary informers on matters that relate to the proper management of the University. The University also says that disclosure would prejudice its ability to exercise its personnel management functions effectively.

27 The University contends that the public interest in ensuring that prejudice of these kinds does not occur outweighs any competing public interest in disclosure. Accordingly, disclosure would, on balance, be contrary to the public interest.

28 The University says that procedural fairness required that Professor Davis should have an opportunity to comment on the draft report, however that would not prevent the application of clause 13(b). It argues that clause l3(b) requires that the information was obtained in confidence, and this requirement is met irrespective of limited disclosure of the information in a different form for the purposes of meeting the requirements of procedural fairness.

29 The University says that the Applicant's allegation that staff who made submissions to the Collins review fear retribution, if true, supports the University's claim that for the purposes of clause 13(b)(ii), disclosure of Document 15 could reasonably be expected to prejudice the future supply of information to the University by those staff members and others.

Clause 16(a)(iii)

30 The University submits that consideration of whether clause 16(a)(iii) applies requires a two-step process. Firstly, it is necessary to determine whether disclosure of the matter in Document 15 could reasonably be expected to have a substantial adverse effect on the management or assessment by the agency of its personnel. If this is the case, it is then necessary to determine whether disclosure of the matter would, on balance, be contrary to the public interest: Director-General of Education and Training v Mullett and Randazzo [2002] NSWADTAP 13.

31 The University relies on Director-General, Department of Education and Training v Mullett and Randazzo (No 2) [2002] NSWADTAP 29 as support for the submissions that clause 16 is addressed to protection of records connected with various internal processes of agency that are seen as relying significantly for their effectiveness on the maintenance of strict confidentiality. Clause 16(a)(iii) focuses on "systemic considerations. The expression "substantial adverse effect" in clause 16(a)(iii) involves a higher test than mere prejudice and requires an effect sufficiently serious to cause concern to a properly informed reasonable person and must not be irrational or absurd. Prejudice or substantial adverse effect must arise from the disclosure of the particular information in the particular documents but also from the disclosure of documents of a particular kind. The vice of such disclosure lies in the breach of confidential properties, a breach which can for that reason lead to the cessation or diminution of the future flow of information to the agency in question.

32 The University contends that in the present case, maintaining confidentiality of matters contained in submissions made to a review, in confidence, is critical to the management of its personnel. Disclosure of documents relating to an internal investigation would have a substantial adverse effect. Therefore, the test of substantial adverse effect is satisfied.

33 The University says that the Applicant's allegation that staff who made submissions to the Collins review fear retribution, if true, supports the University's claim that for the purposes of clause 16(a)(iii) release of Document 15 would have a substantial adverse effect on management or assessment of personnel. Release could reasonably be expected to fuel speculation within the Division about what comments were made by individual staff in their submissions to the Collins review. Other members of the academic and administrative staff would be able to speculate more accurately as to what was said by others. The University contends that for these reasons Document 15 should be held exempt under clause 16(a)(iii).

34 The University further contends that the disclosure of Document 15 would, by undermining the confidentiality that staff expected to be maintained in relation to the Collins Review, and the resulting damage personnel management, would be contrary to the public interest: It relies on the decision in Todd as support for this submission. Therefore, it is submitted, the test in clause 16(b) is met.

The University’s reply to the Applicant’s evidence

35 The University contends that little weight should be given to unsworn and unsigned evidence filed by the Applicant. However, Ms Allars argues that in any event the evidence supports the University’s contention that most staff members who made submissions to the Collins review did so in strict confidence and that any person who made a submission to the Collins review but remains a member of staff would still seek confidentiality and would regard the release of Document 15 as compromising that confidentiality.

36 In the University’s submission, Document 15 is exempt under clauses 6(1), 9, 13(b) and 16(a)(iii) of Schedule 1 to the FOI Act. Therefore, the internal review determination should be affirmed.

Applicant’s case

37 The Applicant relies on his own evidence and has filed a number of documents, which he submits support his contention that the asserted exemptions do not apply. He further asserts that even if the Tribunal finds that Document 15 is exempt it should nevertheless order its release.

38 The Applicant contends that the statement made by Mr Crowley must be met with a good deal of scepticism. He asserts that by his actions over the last few years Mr Crowley has demonstrated a commitment to simply rationalise any decision the University might make and that he has established no record of making objective statements whatsoever. The Applicant provided communication concerning leave policy between himself and Mr Crowley that he asserts supports this contention.

39 The Applicant further contends that the fact that the University provides as evidence solely the statement of Mr Crowley is perhaps the best indication of the weakness of the its case. He argues that this would indicate that no substantial evidence actually exists that would substantiate the University’s claims. He submits that the failure to provide statements from John Collins, John Loxton, other committee members and at least some of the people who had made the original submissions seems to indicate that these people were either unwilling to make statements or that their statements would not have supported the case that the University is trying to make.

40 In contrast, the Applicant has provided a number of documents from staff and he argues that those documents support his position. He says that staff feared retribution if their confidence was breached and that the feared retribution has in fact occurred.

41 The Applicant says that it is understandable that submissions would not be forthcoming unless confidentially was given. However showing a revealing draft of the report to Professor Davis before it was released blew this confidentiality. He could then make an educated guess of who had submitted negative evaluations. He argues that it therefore makes no sense for the University to claim that Document 15 cannot be released in order to protect the confidentiality of those making submissions.

42 Nevertheless, the Applicant disputes the University’s claim that release of Document 15 would injure those individuals who had made confidential submissions to the Collins review and make it more difficult for future committees to receive confidential submissions in the future. He says that this claim is premised on the assertion that it would be possible to recognise the people who had made statements appearing in Document 15 despite the fact that such statements remain unattributed.

43 He argues that given the hundreds of people working for the division, such identification would be highly unlikely to occur. He says that the only individual that might recognise the origin of such statements would be Professor Davis, to whom Document 15 was shown.

44 The Applicant contends that it is highly irregular to show such a draft to the subject of the management review and to allow that individual a virtual veto power over what the report contained. He argues that Professor Davis had every opportunity to respond to the criticisms made in the submissions and to defend himself. He submits that the University bowdlerised the report because of the fear that Professor Davis created when he threatened to sue for defamation of character if the report was released.

45 The Applicant says that Professor Loxton, who was the immediate supervisor of Professor Davis, did the editing of the final report. He contends that Professor Loxton had every reason to minimise the incompetence of Professor Davis as it reflected badly on his own competence. Thus, he submits if the University had been concerned with any breach of confidentially Professor Loxton would not have been chosen for the editing role. The only logical conclusion is that the University did not believe there was an identification problem.

46 The Applicant argues that the reason the statements were made confidentially was that individuals feared reprisals from Professor Davis should such statements be revealed to him. They were afraid that Professor Davis might be able to identify the source of criticism of his management. In providing the report to Professor Davis before it was submitted to the Academic Senate, the University was acting to thwart the intentions of those making those submissions. He submits that confidentiality cannot be asserted at this point if the one person who should not have been shown these statements has in fact already seen them.

47 The Applicant says that confidentiality in this matter was needed to protect those making submissions from retribution by Professor Davis. He asserts that their fear of retribution was justified and provided examples of how he says that this retribution occurred. He submits that either the University didn't believe that such statements in Document 15 were recognisable when they were shown to Professor Davis or the University deliberately breached its obligation to protect the confidentiality of those statements. In either case the University has no grounds to refuse to release the report since any possible harm from a breach of confidentiality has already occurred. To refuse to release the report would mean that the wishes of those making such submissions had been completely thwarted.

48 The Applicant also disputes the University’s claim that release of Document 15 would undermine the running of the Division and simply serve mischievous purposes. He asserts that even the highly edited Collins report indicates clear mismanagement and that there are other clear indications of persistent mismanagement. He provided examples of how he considers the Division is mismanaged. He says that the Division is still characterised by fear of retribution, a lack of accountability and dubious financial record keeping. He submits that releasing would disclose the misconduct and mismanagement of Professor Davis whereas to withhold the document would serve the interests of Professor Davis and the University.

49 He submits that maintaining such a cover up merely protects the guilty and impairs improvement in any organisation. Such an approach discourages whistle blowing of any kind and translates into a lack of accountability for managers who transgress. It is clearly in the public interest to bring to light serious cases of mismanagement of any organisation. Rather than protecting the confidentiality of those who have made submissions, not releasing this document would thwart the very objectives of those individuals. It would send out a clear signal that it is useless to make such a submission.

50 The Applicant submits that the object of the University has always been to protect itself and Professor Davis by burying the more open and honest evaluation contained in Document 15. The FOI Act is intended to prevent wealthy institutions from using that wealth and power to bury information that reflects badly on it. He asks the Tribunal to allow a bit of sunshine into the workings of the University by the release the requested document.

Findings

51 As I have indicated above, the Applicant has sought access to Document 15. The University asserts that the document sought is exempt under clauses 6, 9, 13(b) and 16(a)(iii) of Schedule 1 to the FOI Act and that release of the document is not in the public interest. The burden of establishing that the determination to decline to release the document is justified lies on the University.

52 One of the stated objects of the FOI Act is to extend, as far as possible, the right of the public to obtain access to information held by the Government. The Act also acknowledges that there are circumstances where providing access to documents may adversely affect the legitimate interests and rights of members of the community. For example, giving access to information may constitute an unwarranted invasion of a person's affairs.

53 The main purpose of the clause 6 exemption is to protect the privacy of individuals. In Commissioner of Police v District Court of NSW and Perrin (1993) 31 NSWLR 606 the former President of the NSW Court of Appeal, Justice Kirby has stated that:

"The general object of the clause is to protect private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the Act".
54 In Gilling v Hawkesbury City Council (1999) NSWADT 43 the Tribunal’s Deputy President stated at paragraph [33]:
33 The purpose of the personal affairs exemption is to allow the public interest in personal privacy to be balanced against the public interest in people having open access to information held by government. Privacy is an important right enshrined in various international human rights instruments including the International Covenant on Civil and Political Rights , art 17. Access to information held by government, reflected in the principles of openness, accountability and responsibility of government, is also a fundamental principle, which the FOI Act seeks to enshrine.
55 I accept the University’s argument that Document 15 includes information that is contained in confidential submissions. I also agree that this information falls within the scope of the personal affairs exemption and that given the circumstances in which the information was provided it would be unreasonable to disclose that information. In my view it is probable that the information to which the clause 6 exemption applies could be excised, however this is effectively what has occurred in the editing process that lead to the final report. In any event, for reasons that will become apparent it is not necessary that I consider this issue.

56 I am also satisfied that Document 15 contains information is not merely factual or statistical material of the kind referred to in clause 9(2)(b) and that it contains deliberations and evaluative material. I also agree that the disclosure of Document 15 would reasonably be expected to give rise to speculation as to who said what, and what incidents have been described, in the confidential submissions. It would prejudice the ability of the University to obtain from its employees candid comment, given in their personal capacities, about management practices and incidents in the workplace. I will discuss this issue further in regard to the Clause 13(b) exemption.

57 To satisfy the requirements for confidentiality in terms of clause 13(b), a document must meet each of the three specified criteria. It must first be established that the information concerned was obtained in confidence. I do not understand the Applicant to contest that this was the case but in any event, on the evidence before me, it is beyond doubt that staff members who made submissions to the Collins review did so on the basis that their submissions were made in strict confidence. It is clear from the material provided by the Applicant that the staff members concerned were anxious that their identities and confidential submissions would not be released. This material tends to support the Applicant’s contention that there was a fear of retaliation amongst staff members who made submissions.

58 For clause 13(b) to apply it must secondly be established that the future supply of such information could reasonably be expected to be prejudiced. Reasonableness must be decided taking into account any relevant evidence that is before the decision-maker and any relevant arguments that have been advanced: McKinnon v Secretary, Department of Treasury [2006] HCA 45 per Hayne J at paragraph [63].

59 the word ‘prejudice’ should be given its common, dictionary meaning – that is ‘to cause detriment or disadvantage’: Re Maher and the Attorney General’s Department (No 2) (1986) 4 AAR 266.

60 The relevant evidence in the present matter includes the evidence that Professor Davis was given Document 15. There is no evidence that names of persons who made confidential submissions were released to Professor Davis, however it appears that it is not in dispute that the provision of Document 15 to Professor Davis would enable him to identify the individuals by reference to the context and the nature of their submissions.

61 The Applicant concedes that it is understandable that voluntary staff submissions would not be forthcoming unless confidentially was given. However he argues that this confidentially was blown by the provision of Document 15 to Professor Davis. Therefore, he says, it makes no sense for the University to claim that Document 15 cannot be released in order to protect the confidentiality of those making submissions.

62 In my view this argument is misconceived. The clause 13(b) exemption will apply if the future supply of such information could reasonably be expected to be prejudiced. In my view, this possibility is not precluded by the fact that Document 15 was provided to Professor Davis.

63 Professor Davis was given the document in an effort to accord him procedural fairness. In contrast, release of Document 15 to the Applicant would be disclosure to the world at large. If the information were released, the possibility exists that a link can be made between the information and known persons.

64 In my view, staff that became aware of this type of disclosure could reasonably be expected to be concerned that any information they might provide in the future would also be released. In turn, this could prejudice the future supply of information to the University from voluntary informers on matters that relate to the proper management of the University.

65 In my view, the test in clause 13(b)(ii) is satisfied.

66 The remaining issue is whether or not the release of Document 15 would, on balance, be contrary to the public interest. In determining this issue it is necessary to take into account public interest considerations that favour disclosure, and balance these against those which tend against disclosure.

67 The public interest considerations include the nature of the information that would be disclosed, the circumstances in which it was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent and the current relevance of the information.

68 One public interest consideration in favour of disclosure will always be the general public interest in the publication of government-held documents, in so far as that is conducive to keeping the community informed and promoting public accountability: General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at 146-151).

69 The Applicant contends that release of Document 15 is in the public interest to bring to light serious cases of mismanagement. He argues that not releasing the document would thwart the very objectives of those individuals who have made submissions, and would send out a clear signal that it is useless to make such a submission.

70 In contrast, the University argues that as a general principle it is in the public interest that material communicated in confidence be protected from release. It contends that the public interest in disclosure is outweighed by the fact that Professor Davis, whose administration was the subject of investigation, opposed the disclosure of Document 15, and that the submissions from which the comments were derived for inclusion the draft report were obtained in circumstances where the complainants understood their submissions would remain confidential. It argues that disclosure could reasonably be expected to prejudice the future supply of information to the University from voluntary informers and would also prejudice the University's ability to exercise its personnel management functions effectively. It submits that the public interest in ensuring that prejudice of these kinds does not occur outweighs any competing public interest in favour of disclosure.

71 I agree with the arguments advanced by the University. In the circumstances of this matter it is my view that the public interest in disclosure is outweighed by the considerations that tend against disclosure.

72 It follows, in my view, that the correct and preferable decision is that Document 15 not be released. Accordingly, the University’s determination should be affirmed. It is unnecessary that I consider whether the clause 16(a)(iii) exemption applies.

Order
The decision under review is affirmed.