Garvey and Australian National University (Freedom of Information)

[2025] ARTA 13

Garvey and Australian National University (Freedom of Information) [2025] ARTA 13 (9 January 2025)

Applicant/s:  Benjamin Patrick Garvey

Respondent:  Australian National University

Tribunal Number:                2024/2755

Tribunal:General Member Darian-Smith

Place:Sydney

Date:9 January 2025

Decision:The Tribunal affirms the decision under review.

................................[SGD]........................................

General Member Darian-Smith

Catchwords

FREEDOM OF INFORMATION – review of decision refusing access to documents on grounds of irrelevance under FOI Act s.22 – review of decision refusing access to documents on the ground of their being exempt under FOI Act s.47F – whether disclosure would involve unreasonable disclosure of personal information – whether reasonable steps have been taken by Respondent to find documents – decision affirmed

Legislation

Freedom of Information Act 1982 (Cth) ss. 3, 4, 11, 11A, 11B, 15, 15A, 22, 31B, 47F, 55K, 93A

Privacy Act 1988 (Cth) s. 6

Cases

Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 243
Garvey v Australian National University [2024] FCA 140
Re Haneef and Australian Federal Police [2009] AATA 51; 49 AAR 395
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437

Price and Attorney General’s Department (Freedom of Information) [2016] AATA 1044

Secondary Materials

Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s. 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)

Statement of Reasons

1. The Applicant is a former PhD student of the Respondent.[1] The Applicant’s application for review was filed on 30 April 2024[2] (Application for Review). It relates to the decision made by the Freedom of Information Commissioner, Elizabeth Tydd, (IC) under s.55K of the Freedom of Information Act 1982 (Cth) (FOI Act or Act) on 2 April 2024[3] (Reviewable Decision).

   [1] The Applicant’s PhD program and candidature was terminated by the Respondent on 31 October 2018. After an appeal process, the decision to terminate was upheld by the Respondent on 7 February 2019.

   [2] T1.

   [3] Benjamin Garvey and Australian National University (Freedom of Information) [2024] AICmr 66 (2 April 2024); T1.1.

2. The Reviewable Decision set aside the deemed refusal decision of the Respondent made 12 November 2019 (ANU FOI Decision) and substituted a decision in the following terms:

   “* documents 58, 61, 70-72, 74-77, 79-85 are irrelevant to the request in full under s.22 of the FOI Act

   * the material in documents 65-69 that the Respondent contends is irrelevant to the request is irrelevant to the request under s.22 of the FOI Act

   * the remaining material in the documents at issue that the Respondent found irrelevant under s.22 of the FOI Act is not irrelevant

   * in relation to documents 59, 63, 64, and 73, the following material that the Respondent contends is exempt from disclosure is conditionally exempt under s.47F of the FOI Act and disclosure would be contrary to the public interest:

   - signatures 

   -mobile phone numbers

   -student and alumni names

   -identity numbers of staff, students, and alumni and 

   -transfer information/notes pertaining to staff, students, and alumni 

   * the personal information in documents 60 and 78 that the Respondent contends is exempt is conditionally exempt under s.47F of the FOI Act and disclosure would be contrary to the public interest

   * the personal information in document 62 is not conditionally exempt under s.47F of the FOI Act, and

   * the other personal information of staff in the documents that I have not found irrelevant (s.22) is not conditionally exempt under s.47F of the FOI Act.”

   The Respondent was also ordered to provide the Applicant with a copy of the documents, edited to delete exempt or irrelevant material, within 28 days of the decision.

   FACTUAL BACKGROUND OF REVIEWABLE DECISION

3. The Reviewable Decision came about as the result of the following sequence of events:

   (a) On 18 September 2019, the Applicant made an “FOI” request of the Respondent requesting “to view any email, file, text document, sound recording, image or video written, composed or held by the vice chancellor, Professor Brian P Schmidt, that concerns me.”[4]

   (b) On 20 September 2019, the Applicant re-framed the scope of his FOI request (FOI Request) to read “any email, file, text document, sound recording, image or video written, composed or held by the office of the vice chancellor – including anything written or composed by Professor Brian P Schmidt – that concerns me, my conduct, my scholarship or a necessity to infringe my academic freedom.”[5]

   (c) On 15 October 2024, the Respondent’s Records Management Office wrote to the Applicant requesting an extension of time to respond to his FOI Request[6], which request the Applicant refused.[7]

   (d) On 12 November 2019, the ANU FOI Decision was made, and the decision advised to the Applicant on 13 November 2019. Under the ANU FOI Decision, the Applicant was informed that 31 documents had been identified in response to his FOI Request, of which 1 document was exempt, 3 documents were released in full and the remaining 27 documents were partially released with redactions of personal information or irrelevant material[8]; and

   (e) On 22 November 2019, the Applicant applied to the IC for review of the ANU FOI Decision on the ground that “the material relating to me has been overly and unreasonably redacted.”[9]

   [4] T3, p.28.

   [5] T4, p.29.

   [6] T6.1, p.33.

   [7] T7, p.34.

   [8] T8, pp.37-38.

   [9] T9, p.50.

4. On 30 April 2024, following the Reviewable Decision, the Respondent provided the Applicant with a set of the documents in accordance with the Reviewable Decision.[10]

   [10] T17, p.77.

   THE ISSUES AND THE DISPUTED DOCUMENTS

5. In his Application for Review, the Applicant claims that the Reviewable Decision is wrong on the following basis:

   ” As documents related to me and a data breach and infringement of my academic freedom have been withheld, I am unable to initiate legal action for the infringement of my rights and privacy, and criminal prosecutions are being delayed. I believe documents, including videos or other forms of documentation, that say or prove that I was experimented upon without consent, that my academic freedom was infringed, that my email account was hacked, and the hacker sent emails in my name, have been withheld on the vague grounds of “national security”. I ask the AAT to assist me to protect my rights as an Australian citizen.”[11]

   [11] T1 Reasons for the application.

6. It is a feature of this proceeding that the Applicant believes that the Respondent has failed to identify all the documents which fall within the scope of his FOI Request. That means that not only does the Applicant seek unrestricted access to the documents which are the subject of the Reviewable Decision, but he contends that the Respondent has failed to produce all the documents which fall within his FOI request (collectively the Disputed Documents).

7. The Applicant principally relies upon his statement dated 2 August 2024 (filed 4 August 2024) (Applicant’s Statement) and the Applicant’s Submission in reply dated 22 October 2024 (filed 23 October 2024) (Applicant’s Reply Submissions). Also in evidence from the Applicant were his submissions filed 27 June 2024 and the various documents accompanying it, the Applicant’s affidavit dated 13 February 2024 and the Applicant’s Concise Statement dated 12 July 2023 (both filed in Federal Court proceeding QUD129 of 2023 (Federal Court Proceeding)) and an article by Ellen Lactor dated 13 August 2022.

8. The Respondent’s materials before the Tribunal are the Respondent’s Statement of Issues (dated and filed 26 June 2024), the Respondent’s Statement of Facts, Issues and Contentions and Annexure: Table of Disputed Documents (Disputed Documents Table) (dated and filed 8 October 2024) and the Respondent’s Amended Statement of Facts, Issues and Contentions (dated and filed 4 November 2024) (Respondent’s Amended SFIC).

9. The Respondent also reads and relies upon the witness statement of Kathryn Dan dated and filed 8 October 2024 with Annexures (Dan Statement) and the affidavit of Alexandra Gorman dated and filed 8 October 2024 with Annexures (Gorman Affidavit). The Tribunal notes that Annexures AG-1 to AG-28 to the Gorman affidavit are unredacted copies of the documents claimed to be exempt documents in the Disputed Documents Table.

10. The Respondent’s Amended SFIC frames the issues for consideration by the Tribunal as follows:

    (a) having regard to the Reviewable Decision, what is the extent of the Disputed Documents?

    (b) do any of the Disputed Documents fall outside the scope of, or are irrelevant to, the Applicant’s request for access?

    (c) are any of the remaining Disputed Documents conditionally exempt under s.47F FOI Act? and

    (d) if conditionally exempt, would disclosure be contrary to the public interest and, therefore, constitute exempt documents under ss. 31B and 11A (5) of the FOI Act?

11. In the Applicant’s Statement, the Applicant identifies the documents he seeks as falling into 4 categories:

    “1. The criminally defamatory film that purports to show my participation in and/or agreement to participate in an entrapment exercise on the streets of Hong Kong in November 2017 that is proof of abuse and defamation. (This was the fake “dirt” about me used to blackmail the ANU vice chancellor in 2018.)

    2. The letter written by the ANU vice chancellor to an appeals committee of the ANU approving the infringement of my academic freedom. (This letter was the product of the blackmail of the ANU vice chancellor.)

    3. Criminally defamatory emails purportedly sent to me by Ms. Robyn Elliot in 2019 but in fact sent by the ANU (fabrication of adverse material).

    4.The positive evaluations of my scholarship written by Drs. Luigi Tomba and Benjamin Penny in 2018.”

12. In the Applicant’s Reply Submissions, the Applicant says that there are 3 key documents or sets of documents sought in the review:

    “1. The published film of me in the streets of Hong Kong in November 2017 purportedly showing my participation in and/or approval of an entrapment exercise which i[n] fact was a doctored, edited and/or deep-faked film of my undergoing human experimentation without consent and which caused my traumatisation. (The multiple unlawful purposes of the filming of human-experimentation-without-consent included defamation, blackmail, traumatisation to achieve trauma-based mind control, and involuntary initiation into an anti-China cult.)

    2. The letter or document written and/or signed by the former vice chancellor of the ANU, Brian Schmidt, that caused and/or induced and/or compelled the infringement of my academic freedom and condoned of, or approved, the research misconduct by Dr. Mark Harrison. (Schmidt was blackmailed into writing and/or signing the letter with the “dirt” of the film.)

    3. Emails, purportedly sent to me by Ms. Robyn Elliot, that were in fact sent by the former vice chancellor, Brian Schmidt, after he hacked into my email account. (Schmidt’s commission of the crimes of hacking and criminal fabrication of official records was for the purpose of creating the illusion that I approved of and/or participated in the entrapment exercise and/or was not traumatised by the witnessing of the entrapment exercise.)”

13. In his opening, the Applicant, in response to the Tribunal’s question as to what documents the Applicant says were caught by his FOI Request but which do not appear to be in the bundle of 31 documents produced by the Respondent, said: “Well, I think that’s just three, the three or three categories, the film , the letter by Schmidt, the letter sent by Schmidt, and then the emails purportedly sent by me, actually sent by Schmidt”.

14. The Applicant was questioned by counsel for the Respondent about whether he was content for the Reviewable Decision as it pertained to the documents in the Annexures AG-1 to AG-28 of the Gorman Affidavit to be affirmed. The following relevant exchanges occurred between counsel and the Applicant:

    Ms Slack: “If the Tribunal is satisfied that Miss Gorman’s affidavit does not contain the film, the letter from Schmidt or the purported emails from Schmidt, and the reviewable decision deals only with redactions of documents like email signatures, etcetera, things that fall outside the scope of the request, are you satisfied that the decision under review can be affirmed? And really all the Tribunal has to concern itself with is whether the ANU has not produced those three documents that you’ve identified.

    Applicant: Well, I don’t know where the documents are being hidden by the ANU.

    Ms Slack: OK, they could be hidden under a signature.

    Applicant: I don’t know how the ANU has been using its redaction privilege.

    Ms Slack: You’ve said that we’ve engaged in straw man argumentation and that we are seeking to avoid the issue in dispute by pointing to issues like people’s signatures. Do you accept that the decision is correct in that regard? The Tribunal doesn’t need to concern itself with deciding whether those redactions were appropriate, because you don’t care about that stuff.

    Applicant: I don’t care about that stuff, but I don’t know that the stuff I do care about isn’t being redacted under some deceptive label or deceptive heading.”[12]

    [12] Transcript (MS Teams recorded) at 55:51- 56:45.

15. Having listened to the cross-examination, I indicated to the parties that the task for the Tribunal remained to review the Gorman Affidavit and the Annexures to it and for the Tribunal to rule on the redactions made to the 28 documents, and, to consider the broader question of whether there are other documents including the three, or three categories sought by the Applicant. Those matters are dealt with in this Reasons for Decision.

    THE LEGISLATIVE FRAMEWORK

16. The legislative framework of the FOI Act was considered by the High Court in Kline v Official Secretary to the Governor-General[13], where it was said:

    “The FOI Act does not pursue its objects, as legislative purposes at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.”[14]

    [13] [2013] HCA 52; (2013) 249 CLR 645.

    [14] (2013) 249 CLR 645, 661 at [37], (footnote omitted).

17. The objects of the FOI Act are contained in s.3 of the Act and include provision for a right of access to documents held by Commonwealth government agencies[15]. The term “agency” is defined in the FOI Act to include “prescribed authority”, itself defined[16], and there is no issue as to the Act applying to the Respondent.

    [15] FOI Act s.3(1)(b).

    [16] FOI Act s.4.

18. Obtaining access to documents held by the Respondent is promoted by the legally enforceable right of any person to obtain that access in accordance with the Act[17], save that the Respondent is not required to give the person access to a document which is an exempt document.[18]

    [17] FOI Act s.11(1).

    [18] FOI Act s.11A(4).

19. The term “exempt document” is defined[19] to include “a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B).” Section 31B of the Act states that:

    “A document is exempt for the purposes of this Part if:

    (a) it is an exempt document under Division 2; or

    (b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).”

    [19] FOI Act s.4.

20. The Applicant has sought review of the Reviewable Decision (an IC review for the purposes of the Act) under s. 55K of the FOI Act.[20] The Tribunal’s powers for present purposes are set out in s.58 of the Act, which relevantly provides:

    “58 Powers of Tribunal

    (1) Subject to this section, in proceedings under this Part the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of an agency or Minister.

    (2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.”

    [20] The application to the Administrative Review Tribunal is made under FOI Act s.57A(1)(a).

21. When exercising its powers and functions under the FOI Act, the Tribunal must have regard, in the same way the agency making the decision on a request would have to[21], to the Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s. 93A of the Freedom of Information Act 1982 (FOI Guidelines).

    [21] FOI Act s.15(5A).

22. The general rule is that where a person makes a request for access under s.15(2) of the Act, and has paid any required charge, that access must be given by the agency or Minister[22] unless an exemption or conditional exemption applies.[23] In respect of the latter, s.11A(5) provides:

    “(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.”

    [22] FOI Act s.11A(1), (3).

    [23] FOI Act s.11A(4)-(6).

23. Where part of a document is irrelevant to a claim for access, provision is made under s.22 of the FOI Act for the agency to produce an edited copy of the document with exempt or irrelevant text redacted from the document. By its terms, s.22 of the Act recognises that the irrelevance of certain information contained in a document, to which access would otherwise be given, may be a reason for an agency to decline access to it.[24]

    [24] See Re Haneef and Australian Federal Police [2009] AATA 51; 49 AAR 395 at [30].

24. The FOI Guidelines contain a comprehensive description of what the “public interest test” is.[25] An agency or Minister must have regard to that description in the FOI Guidelines “[i]n working out whether access to the document would, on balance, be contrary to the public interest.”[26] In respect of the Tribunal’s task on review, the High Court said in McKinnon vSecretary, Department of Treasury[27]:

    “[T]he Tribunal is not charged with the task of deciding what assessment of the public interest is to be preferred. Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?”[28]

    [25] FOI Guidelines 6.4-6.6.

    [26] FOI Act s.11B(5).

    [27] (2006) 228 CLR 243.

    [28] [2006] HCA 45, [55].

25. For the purpose of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under s.11A(5) of the FOI Act, the factors favouring access, and the factors which are to be treated as irrelevant, are set out in ss. 11A(3) and 11A(4) respectively. The Act also prescribes categories of conditional exemptions, of which the personal privacy exemption contained in s.47F is particularly relevant to the Reviewable Decision.

26. Subsections 47(1) and (2) of the Act provide:

    “47F   Public interest conditional exemptions-personal privacy

    General rule

    (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

    (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

    (a) the extent to which the information is well known.

    (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document.

    (c) the availability of the information from publicly accessible sources.

    (d) any other matters that the agency or Minister considers relevant.”

1. The term “personal information” has the same meaning which it has in the Privacy Act 1988 (Cth)[29] and can include “a person’s name, address, telephone number, date of birth, medical records, bank account details, taxation information and signature.”[30] In making an assessment as to whether the disclosure of personal information would be unreasonable, in addition to looking at the particular facts of the case, the Tribunal should have regard to the public interest in the disclosure of information held by an agency on the one hand and the public interest in the protection of personal privacy on the other.[31]

   [29] Privacy Act 1988 (Cth) s.6.

   [30] See for example Price and Attorney General’s Department (Freedom of Information) [2016] AATA 1044 at [39].

   [31] Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51]-[52].

2. In having regard to the FOI Guidelines, the Tribunal must have regard to six steps in deciding whether a document is conditionally exempt and applying the public interest text. The Respondent’s Amended SFIC[32] helpfully summarises those six steps as the following:

   (1) determine if the document is conditionally exempt.[33]

   (2) identify the specific harm threshold.[34]

   (3) identify the factors in favour of disclosure.[35]

   (4) identify any factors against disclosure.[36]

   (5) ensure that no irrelevant factors are considered.[37]

   (6) weigh the factors to determine where the public interest lies.[38]

   [32] Respondent’s Amended SFIC, [27].

   [33] FOI Guidelines [6.10]- [6.13].

   [34] FOI Guidelines [6.14]- [6.16].

   [35] FOI Guidelines [6.17]- [6.19].

   [36] FOI Guidelines [6.20]- [6.22].

   [37] FOI Guidelines [6.23]- [6.24].

   [38] FOI Guidelines [6.25]- [6.27].

   CONSIDERATION OF THE DOCUMENTS WHICH WERE THE SUBJECT OF THE REVIEWABLE DECISION

3. The Tribunal has examined the 28 documents in their unredacted form (Annexures AG-1 to AG-28 to the Gorman Affidavit) which were the subject of the Reviewable Decision. The Tribunal’s findings in relation to each of the 28 documents are set out in paragraphs 30 to 57 below (adopting the document numbers referred to in the Reviewable Decision and the document descriptions referred to in the Disputed Documents Table).

4. Document 58 (Annexure AG-1, Email chain): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The emails in the chain make no reference to the Applicant and Professor Schmidt is not the author of any of the emails.

5. Document 59 (Annexure AG-2, Memo): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The redactions are of signatures, employee ID numbers and details of new schools that employees have been transferred to and notes about the end dates of their contracts. There are also names, student ID numbers and school details of  PhD students, who would have a reasonable expectation that their personal information would remain private. The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

6. Document 60 (Annexure AG-3, Email): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The names of the recipients of the email (other than the Applicant) have been redacted. The recipients appear to be Bruce Hall students and alumni and their names are personal information.[39] The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

   [39] Warren; Chief Executive Officer, Services Australia and (Freedom of Information) [2020] AATA 4557 at [36].

7. Document 61 (Annexure AG-4, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The email makes no reference to the Applicant or to the content of the Draft CIW Annual Report to which it refers. Professor Schmidt is not the author of the email.

8. Document 62 (Annexure AG-5, Draft Annual Report): This document has been disclosed in full by the Respondent and is no longer in dispute between the parties.

9. Document 63 (Annexure AG-6, Memo): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The redactions are of signatures, employee ID numbers and details of new schools that employees have been transferred to and notes about the end dates of their contracts. There are also names, student ID numbers and school details of PhD students, who would have a reasonable expectation that their personal information would remain private. The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

10. Document 64 (Annexure AG-7, Memo): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The redactions are of signatures, employee ID numbers and details of new schools that employees have been transferred to and notes about the end dates of their contracts. There are also names, student ID numbers and school details of  PhD students, who would have a reasonable expectation that their personal information would remain private. The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

11. Document 65 (Annexure AG-8, Enquiry log): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in part under s.22 of the FOI Act. The document records details of various FOI requests made to the Respondent for the relevant time. The Applicant has been provided with unredacted log entries which relate to the FOI Request.[40] Information relating to the FOI requests made by other persons are not relevant to the FOI Request.

    [40] At pages 22, 23, 24-25.

12. Document 66 (Annexure AG-9, Statistics, and enquiry log): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in part under s.22 of the FOI Act. The document records details of various FOI requests made to the Respondent for the relevant time. The Applicant has been provided with unredacted log entries which relate to the FOI Request.[41] Information relating to the FOI requests made by other persons are not relevant to the FOI Request.

    [41] At pages 3,5.

13. Document 67 (Annexure AG-10, Statistics, and enquiry log): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in part under s.22 of the FOI Act. The document records details of various FOI requests made to the Respondent for the relevant time. The Applicant has been provided with unredacted log entries which relate to the FOI Request.[42] Information relating to the FOI requests made by other persons are not relevant to the FOI Request.

    [42] At pages 11, 12, 13.

14. Document 68 (Annexure AG-11, Statistics, and enquiry log): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in part under s.22 of the FOI Act. The document records details of various FOI requests made to the Respondent for the relevant time. The Applicant has been provided with unredacted log entries which relate to the FOI Request.[43] Information relating to the FOI requests made by other persons are not relevant to the FOI Request.

    [43] At pages 8, 9, 10.

15. Document 69 (Annexure AG-12, Statistics, and enquiry log): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in part under s.22 of the FOI Act. The document records details of various FOI requests made to the Respondent for the relevant time. The Applicant has been provided with unredacted log entries which relate to the FOI Request.[44] Information relating to the FOI requests made by other persons are not relevant to the FOI Request.

    [44] At pages 2, 5-13, 21-23.

16. Document 70 (Annexure AG-13, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

17. Document 71 (Annexure AG-14, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

18. Document 72 (Annexure AG-15, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. . The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

19. Document 73 (Annexure AG-16, Memo): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

20. Document 74 (Annexure AG-17, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of the email is the FOI statistics and enquiry log for 2019.The email does not in any way concern the Applicant.

21. Document 75 (Annexure AG-18, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of the email is in relation to a monthly report on FOI enquiries. The email does not in any way concern the Applicant.

22. Document 76 (Annexure AG-19, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of the email is the FOI statistics and enquiry log for October 2019. The email does not in any way concern the Applicant.

23. Document 77 (Annexure AG-20, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

24. Document 78 (Annexure AG-21, Email): The redacted parts of the document are personal information falling within s.47F of the FOI Act, and disclosure of that personal information would be unreasonable and contrary to the public interest. The names of the recipients of the email (other than the Applicant) have been redacted. The recipients appear to be Bruce Hall students and alumni and their names are personal information. The redacted information is not relevant to the FOI Request and no public interest purpose is served by its disclosure. There are no other documents or attachments covered by the redactions.

25. Document 79 (Annexure AG-22, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

26. Document 80 (Annexure AG-23, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

27. Document 81 (Annexure AG-24, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The email makes no reference to the Applicant or to the content of the Draft CIW Annual Report to which it refers. Professor Schmidt is not the author of the email.

28. Document 82 (Annexure AG-25, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

29. Document 83 (Annexure AG-26, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

30. Document 84 (Annexure AG-27, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The document is a template form headed “Disestablishment of” and it is not relevant to the FOI Request.

31. Document 85 (Annexure AG-28, Email): This document is outside the scope of the FOI Request, being irrelevant to the FOI Request in full under s.22 of the FOI Act. The subject matter of this document relates to the disestablishment of the Australian Centre on China in the World as an Academic Organisational Unit and is not relevant to the FOI Request. Professor Schmidt is not the author of the email, and it makes no reference to the Applicant.

32. The following conclusions can be drawn from my review of the 28 documents:

    (a) The Reviewable Decision is the correct decision. and

    (b) The Applicant’s concern that the Respondent may have been using redactions inappropriately is not made out, in that what has been redacted in the documents produced in response to the FOI Request has been accurately described. It follows that there is no additional information or document which has been masked by the redaction process undertaken by the Respondent.

    ANY ADDITIONAL DOCUMENTS AND REASONABLENESS OF SEARCHES FOR THEM?

33. That leaves the question of whether there are other documents including the three, or three categories sought by the Applicant, which should have been disclosed by the Respondent in response to the FOI Request? That raises in turn, in circumstances where there is a dispute as to the existence of the additional documents sought, the question of whether all reasonable steps have taken by the Respondent to identify documents relevant to the FOI Request.

34. The Respondent relies upon the Dan Statement in relation to the searches undertaken by it in response to the 4 categories of additional documents identified by the Applicant in the Applicant’s Statement.[45] Ms Dan is the University Archivist. The Tribunal is satisfied that Ms Dan was an appropriate witness for the Respondent to call to provide evidence in support of the Respondent’s submission that all the documents falling within the FOI Request had been produced.

    [45] The 4 additional categories of documents are set out in paragraph [11] above.

35. At paragraphs [8]-[12] inclusive of the Dan Statement, Ms Dan sets out the searches which she caused to be made by the Respondent in respect of each of the 4 categories of document sought by the Applicant.

36. Ms Dan’s evidence is that no documents in categories 1 and 2 (the film and the letter from Schmidt respectively) were found as the result of the searches conducted by the Respondent. In respect of categories 3 and 4 (the Robyn Elliott emails and the scholarship evaluations respectively), copies of those documents which were located as the result of the Respondent’s searches are provided as Annexures 1 and 2 to the Dan Statement.

37. Ms Dan was cross examined by the Applicant. The Applicant’s examination of Ms Dan was not able to establish a link between the hack into the Respondent’s information systems in 2018 and the Applicant’s strongly held belief and concern that his own records and personal information had been targeted in that 2018 hacking incident. The Applicant’s contentions as to his personal information being stolen or compromised, and that his personal information had been used to blackmail the ANU vice chancellor in 2018 are based on supposition on his part, and while the Tribunal can accept that those are his genuinely held views, the difficulty for the Tribunal is the complete lack of independent documentary evidence to support those contentions.

38. A similar evidentiary problem exists for the Applicant in relation to the debate between the parties as to the existence of the additional three documents or classes of documents which the Applicant contends form part of the Disputed Documents which he says should have produced in response to the FOI Request. I have conducted a review of the various documents relied upon by the Applicant, which are referred to in paragraph [7] above. What is lacking from that material is documentary evidence, independent of the Applicant’s own supposition or inference, which would support the drawing of a conclusion by the Tribunal that the film or the Schmidt letter exist, that the Respondent could reasonably be expected to have access to such documents if they did exist, and ought to produce them.

39. The Respondent, on the other hand, has called evidence from Ms Dan as to the reasonable searches she has caused to be made for the documents which the Applicant says are missing from the bundle of documents produced in response to the FOI Request. That evidence has been tested in cross examination and the Tribunal accepts Ms Dan’s evidence that reasonable searches have been undertaken and that all the documents that could be located have been produced.

40. Finally, the Applicant raised the question of his requests for summonses to be issued to each of Mitchell Downes[46] and Gareth Evans[47]. As was explained to the Applicant at the hearing, the issuing of a summons to a witness by the Tribunal is at the discretion of the Tribunal, if it considered it to be the case that the evidence that the witness might give would assist the Tribunal in determining the application for review.

    [46] A Queensland solicitor consulted by the Applicant who provided written advice to the Applicant and then advised the Applicant that he would not continue to act for him.

    [47] The former Chancellor of the Respondent.

41. The Applicant had previously sought leave to subpoena Mitchell Downes in the Federal Court Proceeding. The application for leave to issue a subpoena addressed to Mitchell Downes was refused by Meagher J on the basis that “no legitimate forensic purpose for the subpoena can be evidenced.”[48] Relevantly, His Honour held that: “In this instance, the applicant has not demonstrated what legitimate forensic purpose the subpoena would serve. Based on the evidence before me, there is nothing to suggest that Mr Downes had acted under improper influence.”[49]

    [48] Garvey v Australian National University [2024] FCA 140 at [21].

    [49] [2024] FCA 140 at [20].

1. The Applicant submitted to the Tribunal that if Mitchell Downes had given evidence he would have said that Gareth Evans had contacted him and told him “to drop [the Applicant] as a client rather than have this film and these emails that he sent come out in court”, and that if Gareth Evans had given evidence, he would have confirmed that he had called Mitchell Downes and told him to cease acting for the Applicant—and that these matters would have been ”strong evidence that, you know, those documents do exist.”[50] The Tribunal rejects that submission as being pure speculation by the Applicant, unsupported by any evidence before the Tribunal, other than the evidence from the Applicant himself.

   [50] Transcript (MS Teams recorded) at 1:54:38-1:55:54.

   CONCLUSION AND DECISION

2. It follows from the reasons set out above, that I have concluded that the correct or preferable decision on the material before me is for the Reviewable Decision to be affirmed. Accordingly, the Tribunal affirms the decision under review.

   Date of Hearing:  29 November 2024

   Applicant:  Benjamin Garvey (self-represented)

   Counsel for the Respondent:      Ms. K. Slack

   Solicitors for the Respondent:    Mr. M. Palfrey, HWL Ebsworth