Howell v Macquarie University

[2006] NSWADT 207

Set aside by Appeal: Set aside in part by Appeal on 1 March 2007 and 27 September 2007: Howell v Macquarie University (GD) [2007] NSWADTAP 10; Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51

CITATION:	Howell v Macquarie University [2006] NSWADT 207
DIVISION:	General Division
PARTIES:	APPLICANT Sally Clare Howell RESPONDENT Macquarie University
FILE NUMBER:	053277 and 053320
HEARING DATES:	6-7/12/2005 and 20/12/2005
SUBMISSIONS CLOSED:	03/10/2006
DATE OF DECISION:	07/07/2006
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	access to documents - internal working documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Harris v ABC (1983) 50 ALR 551 N v Director-General, Attorney-General’s Department (No. 4) [2003] NSWADT 122 Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 626 Trade Practices Commissioner v Sterling (1979) 36 FLR 244
REPRESENTATION:	APPLICANT K Sant, barrister RESPONDENT M Allars, barrister
ORDERS:	1.The decisions under review are affirmed with respect to the documents considered in these reasons for decision; and; 2.Document #1 in the 053277 Schedule of Exempt Documents is remitted to the respondent for further consideration in accordance with paragraph 16 of these reasons

1 The Applicant has brought both these proceedings pursuant to the provisions of the Freedom of Information Act 1989 seeking to review determinations made by the Respondent refusing access to documents upon applications duly made under that Act. The proceedings are inter-twined in a rather complex way by reason of the way in which the Respondent dealt with the FOI applications and the reactions of the Applicant in an endeavour to address perceived problems and possible solutions. No criticism of the parties is meant by this; the Respondent is under a duty to apply the legislation correctly and the stance adopted may not be readily understood by an Applicant in proceedings like these where an Applicant, not knowing what exempt documents contain, cannot easily ascertain why the applications have been dealt with in a particular way. The Applicant certainly had a difficult reconciliation process on hand following the FOI releases of particular documents (see statement by Brian Spencer, exhibit C2, paragraph10). Despite the considerable assistance from the parties the complexities of these two matters remained significant.

2 At all material times the Applicant was employed by the Respondent as a lecturer in special education, her duties being performed within a school, established by the Respondent, for children with special learning needs. In late 2004 an incident occurred at the school involving one of the children who was attending there. Following this incident the child’s parents lodged a complaint with the Applicant, who referred it to her superiors. The child’s parents contemplated bringing legal proceedings against the Respondent by reason of this incident and advised the Respondent of their intentions. At that time the nature of the legal proceedings had not been formulated. Clearly though, the Respondent did in fact realise that legal proceedings were contemplated.

3 The Respondent then commenced an internal investigation into the incident and it appointed an independent investigator to gather the evidence and report. During the course of this investigation two developments occurred. The first was that the Applicant lodged a grievance with the Respondent as to the conduct of the investigation. Secondly, the NSW Ombudsman intervened in the investigation and commenced to conduct an investigation into the incident pursuant to its statutory powers. In these circumstances the need for the Respondent to seek legal advice from time to time in relation to the incident, and the investigations under way, is obvious.

4 The Applicant lodged several applications under the FOI Act seeking access to documents that concerned in one way or another the incident and the investigations that were on foot. With respect to two of these applications, the first and the third, determinations were made by the Respondent that particular documents were exempt from disclosure. The Applicant is now seeking to review these two determinations in this Tribunal by proceedings 053277, in relation to the first application and decision, and 053320, in relation to the third application and decision. By consent these two proceedings are being heard together, a sensible approach adopted by the parties given that certain documents are common to both proceedings.

5 As just stated, some of the documents the subject of claims by the respondent are common to both proceedings. In addition the Respondent has, subsequent to the decisions under review, now released certain documents that initially had been refused. Consequently, the parties have taken steps to isolate and identify carefully the issues, and the documents, that are now before the Tribunal. As a result of these steps it is common ground that the only exemption claims, and the documents relating to such claims, that the Tribunal need now consider are those specified in the two Schedules of Exempt Documents, one for each proceeding, that are in evidence (the confidential schedules being Exhibits C8 (a) and (b); the non-confidential versions being Exhibits C4 and C5). Copies of the documents the subject of the exemption claims are also in evidence as part of the confidential exhibit, Exhibit 8. They have been conveniently cross-referenced in the schedules.

6 However, by agreement, the parties have further narrowed the issues at hearing so as to remove the need for the Tribunal to review documents numbered 2, 3, 10, 14, 19 and 20 in the schedule for proceedings 053277 and documents numbered 1, 7 and 16 to 26 inclusive in the schedule for proceedings 053320. In addition, the issue pertaining to documents 8, 9, 11, 12, 13, 15, 16, 17 and 18 in the 053277 schedule may be put to one side as it is simply whether the documents fell within the terms of the first FOI request. This issue, concerning these particular documents, has been rendered otiose by reason of the third FOI application so that the exemption claims in relation to these documents necessarily will be determined in proceedings 053320. Whilst this appears rather complicated, perusal of the schedules reveals why these steps have in fact narrowed the overall issues before the Tribunal in both proceedings, although not all of the complexity.

7 Given this clearer delineation of the issues by the parties it has become unnecessary for the Tribunal to consider many of the wide ranging issues canvassed by the parties at hearing and in submissions. It has also meant that the relevant factual materials have been succinctly highlighted. The parties should be commended for the sensible and helpful course that they have chosen to follow, a reflection of the sound legal advice that they both have been given. The Tribunal notes that issues concerning a notice to produce issued by the Applicant (exhibit B1) and a call for the production of documents made by the Applicant’s counsel during the course of the hearing were resolved by consent orders. This complication therefore has resolved itself and does not require any further determination by the Tribunal.

Proceedings 053277

8 It is convenient to consider these proceedings first. The relevant schedule of exempt documents (“schedule 053277”) sets out the documents in issue and the claims made for each document. Only documents 1, 4, 5, 6 and 7 require consideration in this proceeding. Document #1 is openly described in submissions (exhibit C4) as a memorandum from Professor E. More to Dr. A Rice dated 16.03.05. The Respondent submits that this is an internal working document within the meaning of the clause 9, Schedule I, exemption to the FOI Act 1989.

9 Release of this document would clearly disclose factual material but it would also disclose the author’s deliberation and opinion concerning that material. It sets forth a determination and a direction by the author concerning the Respondent’s affairs and it thereby shows, on its face, that the author’s deliberation occurred and her opinion was formed during the course of, and for the purpose of, a decision making function of the Respondent, namely the direction given to the recipient of the document. Consequently, the only issue here is the public interest requirement in clause 9((1)(b). The Respondent must establish, on balance, that disclosure would be contrary to the public interest.

10 The Respondent argues that release of the document would be contrary to the public interest because it would be likely to impair the integrity and viability of the Respondent’s decision-making process, in part because the document concerns deliberations at a high administrative level and because it concerns an interim decision, rather than a final one, concerning the then ongoing investigations into the abovementioned incident. The evidence shows that the deliberation was undertaken and the opinion was formed at a high administrative level. However, the author’s determination and direction were such as to finally dispose of the discrete matter then at issue, and the author’s reasons are succinctly set forth in the document. Consequently, the evidence does not demonstrate that release of the document would unfairly disclose the reasons for the determination (following Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 626) or would be a premature disclosure of those reasons before a final decision was reached (following Harris v ABC (1983) 50 ALR 551). This is so even though the investigations into the incident, and into the Applicant’s grievance, with which the determination and the direction were concerned, were still under way at material times, and still are to some extent. The discrete matter dealt with in document #1 does not reflect any interim views as to the incident or the grievance. This is not that type of case. Just because document #1 is connected in some way with the incident and the investigation and grievance does not establish the ground that some interim view is expressed about an outstanding matter: the document simply does not do that. The Tribunal notes that the connection between the document and the investigations is openly disclosed in the Respondent’s submissions (see paragraph 4.11 thereof) and therefore does not suppress this aspect of these reasons. These findings however, do not dispose of the public interest issue.

11 The Applicant’s submissions as to where the balance of public interest is properly drawn are of course limited by ignorance of the contents of document #1. However, the argument is put that there is a public interest in a person being fully informed as to matters which touch them personally. It is also put that, at a more general level, there is a public interest in ensuring that public institutions are seen to be according fair treatment to one and all and disclosure of the document could well serve this public interest (at paragraph 19). Against this, the Respondent submits that disclosure of this document is prejudicial to the proper functioning of the Respondent Agency, this being a recognised head of public interest. The latter part of this submission is clearly correct.

12 At the most general level, and in the context of the Respondent’s submissions in this matter, the public interest test involves establishing, on the evidence, where the balance should be drawn by giving due consideration to any secrecy requirements necessary for the proper administration of an agency, and, to the reasons why the public interest of citizens being fully informed of the processes of that agency favour disclosure. The facts of each case of course will give form to these general propositions. However, the ultimate question is whether it is contrary to the public interest to disclose the particular document under review.

13 Disclosure of document #1 would clearly make the Applicant aware of the determination made by its author and the reasons for that determination. To some degree it would also reveal the author’s deliberations. The determination expressed in the document is a rational one and was designed to preserve the integrity of the investigations that were then under way. The basic question though is whether there is in fact a real risk that disclosure of this document pursuant to the Applicant’s FOI request would adversely affect the ability of the Respondent to administer its affairs properly or efficiently. The only evidence in point is that of Professor Loxton where he deposes as to the need to conduct deliberations at “the senior officer” level in an uninhibited fashion so as to ensure the best possible environment for the effective, impartial and independent conduct of the ongoing investigation (at paragraph 8 of his non-confidential statement, exhibit C1). He then deposes to the fact that the deliberations and processes have not yet completed, including the Applicant’s grievance. However, during cross-examination he accepted that there had been closure of the investigation into the incident and that that matter had reached finality by 19 July 2005 (transcript 07.12.05 at page 28 ff). This left the Applicant’s grievance as the only possible outstanding matter. This has been left in abeyance for some time but, no doubt, there is still some unresolved issues remaining that could possibly be re-activated. However, this evidence does not establish a factual basis for an argument that the release of document #1 would adversely affect the Respondent’s ability to administer its affairs properly and efficiently, including taking the applicant’s grievance to finality. The Tribunal is not satisfied that release of this document would have any adverse consequences upon the Respondent’s administrative processes. Further, there is no evidence before the Tribunal showing why the Respondent’s administrative processes generally require secrecy for them to be effective. It cannot be said that the deliberations recorded in the document are deliberations that necessarily should always remain secret, or remain secret for a time, by reason of their very nature. By way of example, a document which records statements of fact given by a potential witness during the course of an investigation and which contains deliberations in relation to that evidence, might well be kept secret whilst other evidence is being obtained. Also, it cannot be said that public knowledge of these deliberations would in any way inhibit similar deliberations in the future, nor any future deliberations of whatever nature. A factual basis for the Respondent’s submission therefore is not made out on the evidence. Consequently, the Tribunal is not satisfied that it should find that disclosure of document #1 is contrary to the public interest.

14 However, one further matter raised by the evidence should be considered, albeit briefly. Disclosure of document #1 could possibly disclose a source of information in circumstances where an inference is open that the information was given in confidence. Although the point was not taken in relation to the public interest requirement in clause 9(1)(b), it could be argued that an adverse effect would be that future information would not be forthcoming as sources would not believe that the information they supplied would be kept confidential or that they would remain anonymous. As the Respondent has in fact disclosed to the Applicant much of the information that is recorded in document #1, it is apparent that the real concern here would be the identity of the source of the information.

15 On the evidence the Tribunal is not satisfied that the information was provided in circumstances of confidence nor that the source wished to remain anonymous. Exhibits 9(a) and (b) concern this aspect. However, the precise circumstances of the communication are not in evidence and it is not possible to draw an inference on the evidence that, more likely than not, the communication was confidential as to source and content. Alternative inferences are equally open. Therefore the adverse consequences that could flow as posited upon the basis that the communication was confidential have not been established to the Tribunal’s satisfaction. Consequently, this does not affect the determination stated above and therefore refusal of access cannot be justified by reliance upon the clause 9 exemption in the Schedule to the Act.

16 In relation to document #1 the Respondent has not relied upon the clause 13 exemption concerning the provision of confidential information. From this the Tribunal could conclude, by way of concession, that the information was not in fact provided in confidence. However, this would not be a wise conclusion given that the evidence has dealt with the point to some degree (exhibits C (9) (a) and (b)) and that there may be other reasons, such as inadvertence, why the point was not taken. The preferable course, in the interests of both parties, would be to remit the document for further consideration by the Respondent so that it may be dealt with in accordance with the Tribunal’s determination set forth above in relation to the clause 9 exemption and the consideration that clause 13 of schedule I may have application. In addition, the Respondent should be directed to consider the application of the clause 10 exemption to parts of the first paragraph of this document.

17 This would only be a proper course though if in fact the entirety of document #1 came within the Applicant’s first FOI request (exhibit B4). This aspect is still in issue (see transcript 20.12.05 at page 28) and it requires some explanation if only for the purpose of clarity. The first FOI application (letter dated 03.06.05, exhibit B4) sought documents, or parts of documents, containing certain “information” or “evidencing ‘previous requests’…” as referred to in a particular letter issued by the Respondent to the Applicant (see sub-paragraphs 1(a), (b) and (c) of the FOI application). The Respondent took the view that only paragraph 1 of document #1 fell within this request, the remainder of the document falling outside the scope of the request. The Respondent reasoned that the Applicant was not seeking the release of entire documents but only of the parts of any document that fell within the request. This is a rather narrow view, given that the request seeks “documents” and “parts of documents” in the alternative. On one view, the Applicant is really seeking access to the entire document if it contains this “information” or, should the document contain such “information” but contain other unrelated matter as well, to that part of such a document which falls within the request. On a common sense approach the Applicant, by using the words “or parts of documents”, is really endeavouring to exclude matter unrelated to herself. This aspect was addressed in submissions and it is sensible to find that the view taken by the Respondent was perhaps open to it, despite its narrowness and its possible deviation from the spirit of the legislation. It is a point upon which minds may differ, but in the Tribunal’s view the whole of document #1 falls within the first FOI application.

18 In addition, the second paragraph of document #1 clearly falls within paragraph 1(c) of the FOI request as it evidences the making of the “previous requests” referred to and the entire document falls within paragraph 1(b) of the request by reason that it was taken into account by the officer of the Respondent who issued the letter dated 30.03.05 to the Applicant. The fact that the last two paragraphs of document #1 do not expressly contain the Applicant’s name does not take the document outside the scope of the request as clearly the whole document is referring to the Applicant. Consequently, the Tribunal is satisfied that document #1 falls within the Applicant’s FOI request and will deal with this document as stated in paragraph 16 of these reasons.

19 The remaining documents in issue in this proceeding are documents #4, 5, 6 and 7 in the relevant Schedule of Exempt Documents. These documents are claimed to be exempt from disclosure as they fall within clause 13 of the Schedule to the Act. As these same documents also are subject to an exemption claim under clause 10 of the Schedule in the other proceedings (see documents # 8, 9 and 12 discussed below), and as that claim should be upheld for the reasons set forth below, there is no need to consider the application of clause 13 to them. The Tribunal notes that the question whether parts of these documents fall outside the scope of the FOI request, a point initially taken, is no longer an issue.

20 The remaining documents listed in the schedule of exempt documents filed in proceedings 053277 are no longer in issue, as the parties agree.

Proceedings 053320

21 It is only documents # 2 to 6 inclusive and documents # 8 to 15 inclusive listed in the Schedule of Exempt Documents filed in this proceeding that are now in issue. Each such document is subject to a claim by the Respondent pursuant to the clause 10 exemption. The relevant principles are quite clear and there is no issue that they are as set out in the Respondent’s submissions, the only issue being the application of these principles to the documents under review. The Tribunal notes that documents # 8, 9 and 12 are the same as documents # 4, 5, 6 and 7 in proceedings 053277.

22 Document #2 is a communication to an officer of the Respondent from its legal advisor. The communication provides advice in relation to both the investigation of the incident and the anticipated litigation that could ensue as well as a reporting of the factual material upon the basis of which such advice was rendered. It also contains legal advice of a more general nature. It clearly falls within clause 10 of the Schedule to the Act. It is not practicable to edit the document in a satisfactory way so as to delete the exempt matter.

23 Documents # 3 to 6 inclusive and # 10, 11 and 13 are also communications to an officer of the Respondent by its legal advisor. All communications expressly relate to the investigation into the incident and provide advice by the author of a legal nature concerning the Respondent’s position and the steps that ought to be taken upon the basis of that advice. In addition, the evidence clearly shows that these documents have a nexus with the litigation that was anticipated as it would be quite unrealistic to find that the Respondent’s legal advisor viewed the investigation and the anticipated litigation as being independent of each other. Clause 10 of the Schedule to the Act therefore has application. It would not be practicable to edit these documents satisfactorily.

24 Documents # 8, 9 and 12 consist of a communication by an officer to the Respondent’s legal advisor, two notes made by the legal officer and a communication by her. They narrate, and record, a development arising in the course of the investigation. The last-mentioned communication is a proposal by the legal officer as to what ought to be done in the circumstances. Clearly the legal officer’s advice was being sought, and in fact was rendered, in her professional capacity. The information was supplied to, and then investigated by, the legal officer with a view to providing advice. Clause 10 of the Schedule to the Act therefore has application. These documents are brief and therefore editing is not practically possible.

25 Document # 14 is a communication by the Respondent’s legal advisor to another officer. Paragraph 2 of that communication notes legal advice formerly rendered to the Respondent but paragraphs 1 and 3 do no more than narrate factual developments in the course of the investigation then under way. Whilst this document was essentially to inform the recipient of the factual progress of steps being undertaken, on behalf of the Respondent, in the course of the investigation, it has a clear nexus with the ongoing assistance, of a legal nature, that the legal advisor was rendering to the Respondent (following Trade Practices Commissioner v Sterling (1979) 36 FLR 244; Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976). Consequently, the document comes within clause 10 of Schedule I to the Act. Editing of the exempt matter is not reasonably practicable. The Tribunal notes that the Respondent could possibly see fit to release this document to the Applicant under the residual discretion that it has pursuant to the legislation, given the knowledge that the Applicant stands possessed of. However, this is a matter for the Respondent alone and not the Tribunal (see N v Director-General, Attorney-General’s Department (No. 4) [2003] NSWADT 122).

26 Document # 15 is a similar communication by the Respondent’s legal advisor to the person who was undertaking the investigation at the Respondent’s request. It narrates factual developments in the course of that investigation and for the reasons just expressed it also properly falls within clause 10. Editing of exempt matter is not reasonable practicable.

27 The Tribunal is confident that the sacrosanct position that legal advice has and the importance of the principles that govern its secrecy have been fully explained to the Applicant by her legal advisors so that she will readily understand why these documents cannot be released to her. The most that this Tribunal is empowered to do is to conduct an independent review of the documents so as to ensure that the exemption is properly applicable.

28 In accordance with these reasons the Tribunal therefore:

(a) affirms the decisions of the Respondent with respect to the documents the subject of these reasons for decision; and

(b) remits document #1 in the 053277 Schedule of Exempt Documents to the respondent for further consideration in accordance with paragraph 16 of these reasons.