GA v The University of Sydney - [2010] NSWADT 76

No judgment structure available for this case.

CITATION: GA v The University of Sydney [2010] NSWADT 76

DIVISION: General Division

PARTIES:
APPLICANT
GA
RESPONDENT
The University of Sydney

FILE NUMBER: 093131, 093192,093193

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 October 2009

DATE OF DECISION:
23 March 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of information – access to documents – amendment Personal information and privacy - amendment

LEGISLATION CITED: Freedom of Information Act 1989
Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997

CASES CITED: Commissioner of Police v Perrin (1993) 31 NSWLR 606
Crewdson v Central Sydney AHS [2002] NSWCA 345
EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150
GA v The University of Sydney [2009] NSWADT 230
Martin v Commissioner of Police [2005] NSWADT 23
News Corporation Ltd v NCSC (1984) 52 ALR
Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647
Re Stewart v Department of Transport (1993) 1 QAR 225
Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219
Simring v Commissioner of Police [2006] NSWADT 331
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172
WL v Randwick City Council [2007] NSW ADTAP 58
Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253

REPRESENTATION:
APPLICANT
In person
RESPONDENT
S Heesom, solicitor

ORDERS: 1.GA's application on file number 093131 is dismissed as misconceived under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997
2.GA’s applications on file numbers 093192 and 093192 are dismissed because the Tribunal does not have jurisdiction to hear them.

REASONS FOR DECISION

Background

1 In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs.

2 For some years GA has been in dispute with the University concerning its cancellation of his enrolment in its Graduate Medical Program in 2004. The background to and course of that dispute are more fully discussed in GA v The University of Sydney [2009] NSWADT 230 at [2] – [25].

3 On 16 March 2009, GA made a request under the Freedom of Information Act 1989 ('the FOIA') for access to documents held by the University. He subsequently amended this by an email dated 30 March 2009. The amended request read:

4 On 7 April 2009 the Acting Deputy Registrar of the University determined that request. He advised:

5 On 16 April 2009, by email, GA sought to ‘appeal’ that decision, which request the University took as a request for internal review.

6 On 28 April 2009 the Deputy Registrar completed the internal review. She wrote:

Freedom of Information Act

7 On 20 May 2009 GA made an application for external review of that decision on Tribunal file number 093131.

8 On 28 April 2009 GA, by email, sought to ‘appeal’ the Acting Deputy Registrar’s letter of 7 April 2009. He did so in reliance on ‘the amendment power’ under the Privacy and Personal Information Protection Act 1998 (the PPIPA). The focus of his ‘appeal’ was the statement that his FOI request contained assumptions or implications that the University did not accept.

9 On 4 May 2009 GA, by email, ‘entirely replaced’ that request with a similar request this time relying on the amendment powers contained in both the FOIA and the PPIPA. That new request read:

10 On 12 May 2009 the Deputy Registrar responded. She treated GA’s email as a request to amend her letter of 28 April 2009, as well as the Acting Deputy Registrar‘s letter, insofar as they referred to implications or assumption contained in GA’s entail FOI request. She wrote:

11 On 13 May 2009 GA sought an internal review of that decision under the FOIA and the PPIPA.

12 On 18 May 2009 the Deputy Registrar confirmed her earlier advice that the University did not accept that its records, to the extent that GA sought to have them amended, contained information concerning his 'personal affairs' or 'personal information' for the purposes of the FOIA and the PPIPA respectively. The Deputy Registrar advised the Applicant that the University did not consider that he had a right of internal review arising under the FOIA or the PPIPA and, accordingly, that the University had declined to assess or make a determination in respect of any such application for review.

13 On 31 July 2009 GA filed applications to review those decisions. The review under the FOIA is on Tribunal file number 093192, while the PPIPA review is file number 093191.

14 At a planning meeting held on its was agreed that I should determine the University’s applications to have GA’s applications for review dismissed for want of jurisdiction (093912 and 093913) or on the basis that they are misconceived or lacking in substance under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (the ADTA) – all applications. The parties were given an opportunity to make written submissions on the issues.

Consideration - 093131

15 The issue here is whether this application should be dismissed under s 73(5)(g)(ii) on the ground that it is misconceived or lacking in substance.

16 When the Acting Deputy Registrar considered GA’s initial FOI request he did so under s 24 of the FOIA. It relevantly provides:

17 The Acting Deputy Registrar found the University had previously supplied GA with the documents relevant to his enrolment, and specifically chose not to admit ‘any assumption made or implied in your FOI application.’ The University’s submissions make it clear this denial or rider (‘the rider’) was included because the University was concerned that GA had framed his FOI application so as ‘to elicit admissions from the University for use in other litigation.’

18 GA then sought internal review under s 34 of the FOIA. In his request for internal review GA did not claim to be aggrieved by the University’s failure to provide him with the information he sought. Rather his internal review sought that, ‘Any and all commentary of the University be redacted from the FOI response.’ While the request was two pages long, the balance of it was an explanation of his objection to the ‘commentary.’

19 In his submissions to the Tribunal GA explained, at [80]:

20 Section 34 of the FOIA is concerned with internal reviews. Relevantly, it provides:

21 While the effect of the Acting Deputy Registrar’s decision was to refuse GA access to the documents he sought, on the basis that he had already been provided with documents relating to his enrolment, there is no dispute that this was not the basis on which GA sought the internal review. Rather GA was aggrieved by the inclusion in the decisions of the rider in the original decision.

22 On the internal review the Deputy Registrar found that he was not a person ‘aggrieved by a determination’ but for the purposes of expediency confirmed the Acting Deputy Registrar’s decision. She also confirmed the rider.

23 GA then sought external review by this Tribunal under s 53 of the FOIA. The section relevantly provides:

24 In his application for external review, and in his written submissions in support of it, GA has agitated and pressed his grievance with respect to the rider. His submissions are replete with arguments advancing the proposition that the inclusion of such a rider in a determination under the FOIA is contrary to and not authorised by the Act.

25 GA argues that the inclusion of the rider renders the decisions invalid. He says its inclusion results in non-compliance with s 24, s 27, s 28, and s 34 among others. This is an extreme, black letter law view of the FOIA. It would result in a decision which contains any additional, or unnecessary, statements or commentary being rendered invalid, despite the decisions otherwise complying with the requirements of the Act. There is nothing in any of those sections which prohibits the inclusion in an original or internal review decision of additional communications or commentary, such as that contained in the rider. There is nothing in the Act which suggests it should be construed as strictly as GA contends.

26 Indeed, s 4(3) contains a declaration of legislative intention which indicates that the Act is to be interpreted so as to facilitate access, in a prompt and low cost manner. It provides:

27 The inclusion of the rider in the original decision and internal review did not result in those decisions being void, voidable or otherwise invalid.

28 The University submits that GA’s application should be dismissed under s 73(5)(g)(ii) on the ground that it is misconceived or lacking in substance for two reasons.

29 First, it argues that that GA already has been given access to all documents relating to his enrolment and that the present FOI application is framed in such a way as to enable him - if access were granted to the same documents in response to that request - to argue that the University has made admissions of fact contrary to its long held position regarding GA’s enrolment. This, it submits, is an improper use of the FOIA.

30 Secondly, the University submits that when reviewing a determination under the FOIA the Tribunal’s powers are limited to those which could have been made by the original decision maker.

31 Section 63 of the ADTA provides:

32 In making a decision under sub-sections (3)(a)(b) and (c) the Tribunal is constrained by the same limitations as those imposed under the FOIA on the original decision maker. As a result, the University submits:

“In relation to the review of an agency's decision concerning an application for access to documents under the FOI Act, the Tribunal's power is limited to deciding whether access should or should not be provided, and on what conditions. The Tribunal does not, in the University's respectful submission, have power to address the Applicant's objection to the written form of its decision. The University submits that the Applicant has misapprehended the powers of the Tribunal in this regard, with the effect that the application is `misconceived or lacking in substance' for the purposes of s73(5)(g)(ii) of the ADT Act.”

33 In relation to what is meant by the terms misconceived and lacking in substance Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (at 108-109) said, with respect to a similar provision found in the Equal Opportunity Act 1984 (Vic):

““Frivolous” and “vexatious” are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of “abuse of process”, but the terms “misconceived” and “lacking in substance” have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then “misconceived” would represent a claim which did “not disclose a cause of action” (as in para. (1)(a) of r. 23.01), whereas “lacking in substance” might be seen to represent a claim where the defendant could obtain summary judgment, …”

34 The majority of reported decisions in this Tribunal relating to the power to dismiss an application as misconceived or lacking in substance are to be found in the Equal Opportunity Division. Those decisions often address the President of the ADB’s power to summarily dismiss under similar provisions in the Anti-Discrimination Act 1997. With respect to that power, in Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172, the Tribunal took the evidence relied on by an Applicant at its highest in determining “determine whether he could possibly substantiate a complaint under the Act.” This cautious approach has been followed since.

35 Central to the concerns I hold with respect to the present application is GA's insistence that the issue he wishes to agitate before the Tribunal is the inclusion of the rider in both the original decision and the internal review. He did not press for access to the information he sought in his internal review application, and does not do so now. Rather, he relies on the failure to give him access to the documents he sought, and the fact that he is thereby aggrieved, as a vehicle to agitate issues with respect to the rider.

36 I am also aware that many of the documents that one might expect to be produced in response to GA’s request are already in his possession. They were the subject of his unsuccessful applications for their amendment considered in GA v The University of Sydney [2009] NSWADT 230. This lends weight to the University’s contention that by framing his request in the manner he did, GA is engaged in an attempt to obtain admissions from the University contrary to its long held position. Such a use of the FOIA for collateral purposes is to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.

37 Issues with respect to the rider are not issues which this Tribunal, on a merits review of the Deputy Registrar’s internal review decision, is required to consider. The review conducted by the Tribunal under the FOIA is not based on error of law, but is a merits review in which the Tribunal makes the correct and preferable decision. It is not a forum at which the issue GA wishes to agitate with respect to the rider can be determined. Rather, it is a forum in which his access to documents (which he does not press) could be determined on a merits review basis.

38 As a result GA’s application is misconceived in the sense discussed by Ormiston JA. The issues he seeks to agitate are not ones for the Tribunal. The issue for the Tribunal on external review is whether or not GA should have access to the documents requested, not whether or not the rider is or is not authorised by the Act.

39 It follows that GA's application will be dismissed as misconceived.

093193 - Consideration

40 This relates to GA's request under s 39 of the FOIA to amend the Acting Deputy Registrar’s decision of by redacting the sentence containing the rider.

41 Section 39 of the FOIA provides:

42 Section 40 provides for the making of amendment application. Section 43 provides:

43 The reasons for which an amendment application may be refused as set out in s 44:

44 Section 45 makes provision for the giving of notices of determination, while s 46 gives a person whose request for amendment has been refused a right to add to those records a notation:

45 Section 47 gives persons aggrieved by such a determination a right to seek internal review, while s 53 then gives a right to seek review in this Tribunal.

46 Central to the consideration of an application to amend under the FOIA is the requirement that the document contain information concerning the person’s personal affairs.

47 The term “personal affairs” is not defined in the Act. As was observed by the Queensland Information Commissioner in Re Stewart v Department of Transport (1993) 1 QAR 225 at [18] there has been a consistent disinclination by courts and tribunals “from attempting any comprehensive explanation of what is encompassed by the phrase.” There it was held that held that information about family, marital and other relationships with emotional ties is information about the “personal affairs” of the people concerned.

48 In Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Beaumont J, sitting as a presidential member of the Commonwealth AAT, said, at 221, personal affairs “refer to matters of private concern to an individual.” Thus because a persons “vocational competence in not something that is ordinarily treated as confidential” it is not, “prima facie at least” part of person’s personal affair.”

49 In News Corporation Ltd v NCSC (1984) 52 ALR 277 the Full Court of the Federal Court, at 283, found that personal affairs refers to the affairs of a natural person and not a corporation.

50 In NSW the ambit of the phrase was considered by the Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 where the issue was whether the name and rank of investigating Police officers constituted their personal affairs. In affirming that they do not Kirby P traversed the authorities and said, at 625:

“The ordinary dictionary meaning of “personal affairs” has been held to involve “matters of private concern to an individual”: see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219; 3 AAR 529; Young v Wicks (1986) 13 FCR 85 at 88-89; 79 ALR 448 at 452. However, it has been suggested that this might be too narrow a paraphrase: see Department of Social Security v Dyrenfurth (1988) 80 ALR 533 at 539; cf Director of Public Prosecutions v Smith [1991] 1 VR 63 at 69. In its context, the words “personal affairs” mean the composite collection of activities personal to the individual concerned.

51 The question of whether a document contains “information concerning the personal affairs” of a person is a question of fact that is determined from the circumstances of each individual case: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. In Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79], it was said that where a document contains a statement about a person’s private life, which is widely known, “this does not deprive it of the character of information relating to the person’s ‘personal affairs.’”

52 In Martin v Commissioner of Police [2005] NSWADT 23 Higgins JM considered an application for the release of witness statements relating to allegations of assault made against her by neighbours. The Tribunal found at [65] that “while the statements do contain information concerning the personal affairs of third persons, the majority of the information also concerns the personal affairs of the applicant.” That information concerning the applicant was not exempt: clause 6(2). Higgins JM concluded, at [66]:

“…the information that concerns the personal affairs of the applicant, in particular the information that records the events involving the applicant on 19 November 2003 (which forms the bulk of the information in both statements) is not exempt under cl.6 of Schedule 1 of the FOI Act. The fact that this information is provided by a third party does not make it personal information of that third party exclusively.”

53 In Simring v Commissioner of Police [2006] NSWADT 331 the applicant sought access to statement prepared and used in the course of a completed and successful prosecution of the applicant. Pearson JM said of the statements, at [24]:

“I am satisfied that they contain information or opinion about the applicant, and information about individuals other than the applicant. Disclosure of these documents would reveal the identity of the authors of the documents, and identify others, as well as reveal the personal reasons for the creation of the documents. As such, disclosure of these documents would involve disclosure of personal information about persons other than the applicant: Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 . ”

54 In the present case the University submits that the rider did not contain any information in relation to GA's personal affairs. It submits that the words, “The University does not admit any assumption made or implied in your FOI application,” does not contain information personal to or private concern to GA.

55 In response GA made a series of arguments. The first of these repeated his earlier argument that the inclusion of the rider in the determination rendered the determination invalid. As already indicated I do not accept this.

56 Next GA submitted, at [257] – [258]:

57 In support of this GA argued that there were no assumptions or implications of any type contained in his FOI request. He said that the description of the documents in his request contain no assumptions, just factual descriptions. As GA is well aware, the University has a different view as to what those documents show: see GA v The University of Sydney [2009] NSWADT 230. This differing view underlies the University’s inclusion of the rider in its decisions.

58 I agree with the University that the rider does not contain information about GA’s personal affairs. It is an expression of the University’s position in respect of assumptions or implications that it might be argued are contained in GA’s FOI request. It does not reveal or deal with events or information concerning GA’s private life. It does not attribute specific opinions or assumption to GA, but simply states that the University does not admit any assumption made or implied in his FOI application. It does not say what those assumptions or implications are, if any.

59 GA asserts that the internal review is now part of his student file, and as a result attributes ‘things’ to him. Two points need to be made about this. First, there is no evidence that the FOI decisions form part of his student file. Secondly, those ‘things’ are not information relating to GA personal affairs.

60 GA’s submissions that the rider contains information relating to his personal affairs are circuitous and convoluted. While the University in clearly taking a position with respect

to GA’s request, the rider does not contain information in relation to his personal affairs. The rider speaks to the University’s position, not to matters personal to GA.

61 It does not contain information in relation to GA's personal affairs. As a result the Tribunal does not have jurisdiction to hear the external review.

093192 - Consideration

62 This relates to GA’s request under s 15 of the PPIPA to amend the Acting Deputy Registrar’s decision of by redacting the sentence containing the rider.

63 Section 15 of the PPIP Act provides:

State Records Act 1998

64 Personal information is defined in the PPIPA. Section 4 relevantly provides:

personal information

65 The definition of personal information in s 4(1) is a wide one. It is not confined to information about an individual’s personal affairs, but is a ‘broad, unrestricted’ definition: WL v Randwick City Council [2007] NSW ADTAP 58 at [20]. Due to the beneficial nature of the PPIPA, exclusions from the definition are to be construed narrowly, while the definition itself is to be construed widely and beneficially: WL v Randwick City Council at [22].

66 Section 53 enables a person aggrieved by conduct of an agency to seek internal review of that conduct by the agency. If dissatisfied with the outcome of the internal review, as GH was in the case of his privacy review, s 55 gives a right to seek external review in this Tribunal.

67 The University submits that the rider does not contain personal information concerning GA. Its submissions are essentially the same as those made with respect to information relating to personal affairs under the FOIA.

68 GA relies on the submissions he made with respect to the information relating to personal affairs under the FOIA. In addition, he argues that the use of the word ‘your’ in the rider attributes an opinion or implication to him, resulting in the rider containing personal information under the PPIPA. He refers to the decision in EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 where the following sentence was found to contain personal information about an individual:

69 GA sought to treat this as analogous with the rider by arguing that it attributed ‘something’ to him, as if saying, ‘'I am aware of you application and in relation to any assumption made or implied reject it.' What GA did not address was the nature of that ‘something.’

70 In EG the sentence contained the Applicant’s name and the information that he was in the process of completing his final pre-admission studies at the College of Law and intending to seek admission as a solicitor sometime later in the year. In the present case the rider appears in a document containing GA's name (about which he does not complain) but does not convey any information or opinions about him.

71 It does not contain personal information in relation to GA. As a result the Tribunal does not have jurisdiction to hear the external review.

Conclusion

72 GA's application on file number 093131 is dismissed as misconceived under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997.

73 GA’s applications on file numbers 093192 and 093192 are dismissed because the Tribunal does not have jurisdiction to hear them.

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Citations

GA v The University of Sydney [2010] NSWADT 76

Cases Citing This Decision

0

Cases Cited

13

Statutory Material Cited

2

GA v The University of Sydney [2009] NSWADT 230

Tredinnick v Wentworth Area Health Service [2000] NSWADT 172

Crewdson v Central Sydney Area Health Service [2002] NSWCA 345

CITATION:	GA v The University of Sydney [2010] NSWADT 76
DIVISION:	General Division
PARTIES:	APPLICANT GA RESPONDENT The University of Sydney
FILE NUMBER:	093131, 093192,093193
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	5 October 2009
DATE OF DECISION:	23 March 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of information – access to documents – amendment Personal information and privacy - amendment
LEGISLATION CITED:	Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997
CASES CITED:	Commissioner of Police v Perrin (1993) 31 NSWLR 606 Crewdson v Central Sydney AHS [2002] NSWCA 345 EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150 GA v The University of Sydney [2009] NSWADT 230 Martin v Commissioner of Police [2005] NSWADT 23 News Corporation Ltd v NCSC (1984) 52 ALR Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 Re Stewart v Department of Transport (1993) 1 QAR 225 Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Simring v Commissioner of Police [2006] NSWADT 331 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172 WL v Randwick City Council [2007] NSW ADTAP 58 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
REPRESENTATION:	APPLICANT In person RESPONDENT S Heesom, solicitor
ORDERS:	1.GA's application on file number 093131 is dismissed as misconceived under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 2.GA’s applications on file numbers 093192 and 093192 are dismissed because the Tribunal does not have jurisdiction to hear them.