Howell v Macquarie University (No 2) (GD)
[2007] NSWADTAP 51
•27 September 2007
Appeal Panel - Internal
CITATION: Howell v Macquarie University (No 2) (GD) [2007] NSWADTAP 51 PARTIES: APPELLANT
Sally Clare Howell
RESPONDENT
Macquarie UniversityFILE NUMBER: 069043 and 069044 HEARING DATES: On the papers SUBMISSIONS CLOSED: 6 September 2007
DATE OF DECISION:
27 September 2007BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Freedom of Information - Appeal - Extension to Merits - Confidentiality Exemption - Legal Professional Privilege - Residual Discretion - Freedom of Information Act 1989, Schedule 1, cl 6, cl 13 MATTER FOR DECISION: Merits FILE NUMBER UNDER APPEAL: 053277 and 053320 DATE OF DECISION UNDER APPEAL: 07/07/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Howell v Macquarie University (GD) [2007] NSWADTAP 10
University of New South Wales v McGuirk [2006] NSWSC 1362
Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
TW v TX [2005] NSWADT 262
Director General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320
Druett v Director General, Department of Community Services (No 2) [2004] NSWADT 269
Re Schorel and Director General of the Department of Community Services (Vic) (1991) 4 VAR 436
Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
P v Greater Western Area Health Service [2007] NSWADT 87
Watts v Forests NSW [2007] NSWADT 197
General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502
News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64
Secretary to the Department of Justice v Osland [2007] VSCA 96
Giannarelli v Wraith (No 2) [(1991) 171 CLR 592REPRESENTATION: APPELLANT
RESPONDENT
P Howell, solicitor
M Allars of counsel instructed by P Dillon, solicitor, Foulsham & GeddesORDERS: 1. Determination of respondent in respect of Document 1 set aside.; 2. Determination of respondent in respect of Documents 2-6; 8-12; and 14 affirmed.
1 This is a further decision in relation to these appeals brought under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act), which have been extended to the merits. The history of the case is set out in Howell v Macquarie University (GD) [2007] NSWADTAP 10 (1 March 2007).
2 The appellant is the original applicant for access to documents held by the respondent agency (the University) under the Freedom of Information Act 1989 (FOI Act). Several documents were refused on the grounds that they contained exempt matter. The appellant applied for review by the Tribunal. The preliminary processes resulted in some documents being released that previously had been refused. At hearing 14 documents remained in dispute.
3 They divided into two groups. Thirteen were treated as exempt by the University on the ground of legal professional privilege. One was treated as exempt on the ground that it was an internal working document. They were identified in response to different original applications, and are now the subject of separate notices of appeal. Notice of appeal 069044 deals with the group of 13 – they are numbered 2-6; and 8-15. Notice of appeal 069043 deals with the other document, known as Document 1.
4 The Tribunal upheld the University’s determination in respect of the group of 13 documents. It referred the document known as Document 1 back to the University for reconsideration.
5 The appellant appealed. Consequently the University did not proceed to reconsider the status of Document 1.
6 In our earlier decision we summarised the position reached before the Tribunal as follows:
- ‘4 In the case of the 13 documents, the Tribunal upheld the University’s decision that they were protected by legal professional privilege: see Act, s 25(1)(a), and cl 10 of Schedule 1.
5 In the case of the other document, the Tribunal found that the exemption relied upon (cl 9 of Schedule 1, internal working document) was not made out by the University. While the document fitted the general description of an internal working document found in that provision, the University had not satisfied the Tribunal that it was ‘contrary to the public interest’ to disclose the document. However, in examining this issue, the Tribunal considered that two other exemptions (cl 10, legal professional privilege and cl 13, breach of confidence) might have been open to be claimed in connection with the key item of information which the University sought to protect (the identity of an informer). It also accepted Mrs Howell’s contention that the University had wrongly interpreted her FOI request, and had wrongly limited its consideration to the first paragraph of the document. The Tribunal considered that the appropriate course, therefore, was to refer this matter back to the University for reconsideration. It did not indicate expressly which of the two powers of remittal given to the Tribunal by the ADT Act (see ss 63 and 65) were being exercised.’
7 The Appeal Panel decided in relation to Document 1 that the Tribunal had proceeded unfairly. The Tribunal had held in favour of the appellant on the only case that the appellant had come to meet – the University’s claim that the document was exempt as an internal working document. The Tribunal, however, did not make the order the appellant might have expected (one setting aside the determination). Instead it referred the document back to the University for reconsideration in connection with other possible heads of exemption that it had not invoked. The appellant protested, we think rightly, that she should have been given an opportunity to respond to any proposed order of this kind, including the Tribunal’s thinking that there might be other possible heads of exemption. There was also an issue as to whether the whole or only one paragraph of Document 1 was in issue before the Tribunal.
8 The Appeal Panel concluded in the circumstances that the appropriate course was to retain control of the question (by extending to the merits), with the following order:
- ‘The application is remitted to the respondent agency pursuant to s 65 of the ADT Act for reconsideration, such reconsideration to be undertaken within 21 days. The whole of the document known as document 1 is to be the subject of reconsideration. The result of that reconsideration is to be reported to the Appeal Panel. If the University decides that document 1 is exempt in whole or in part, the Appeal Panel will give directions for the further conduct of the matter.’
9 The Appeal Panel also saw it as desirable to retain the matter because of a development in the law that occurred after the appeal had been heard. The Supreme Court ruled that the discretion given to agencies by s 25(1)(a) of the FOI Act not to refuse to release exempt documents could be exercised by the Tribunal (contrary to the prevailing view in the Tribunal), having regard in particular to the terms of s 63(2) of the ADT Act: University of New South Wales v McGuirk [2006] NSWSC 1362 (8 December 2006).
New Determination
10 The University advised the Tribunal by letter dated 22 March 2007 that it had completed reconsideration of this document.
11 It determined by decision dated 21 March 2007 to set aside the internal review decision of 1 August 2005 and make a new decision in substitution, as follows:
- ‘(a) Document 1 exempt under cl 10 (legal professional privilege).
(b) Parts of paragraphs 1 & 2 of Document 1 are exempt under cl 13(b) of Schedule 1 to the FOI Act (confidential information obtained from employee in course of employee’s employment).
(c) Exercise discretion under s 25(1) & pursuant to s 25(4) give access to copy of Document 1 from which confidential information has been deleted.’
12 This decision, therefore, by virtue of s 65 of the ADT Act becomes the decision the subject of the review application. The net effect is that the material that might be protected by legal professional privilege has been released. The appellant presses her application for review, now confined to the deletion of material said to be exempt under cl 13(b).
13 A timetable was set for the making of further submissions. The University’s submissions were filed on 22 August 2007, and the appellant’s submissions in reply on 6 September 2007. The parties have agreed to the matter being determined on the papers (see ADT Act, s 76).
Assessment
14 Document 1 is the memorandum from Professor Elizabeth More, Deputy Vice-Chancellor (Administration) to Professor A Rice, Dean, Australian Centre for Education Studies dated 16 March 2005 recommending that Professor Rice issue a disciplinary direction to the appellant in the terms of the attached draft letter. The entire text of the Document has been released except for three blacked out passages, one of two lines, the other two a few words.
15 The deleted parts appear in the first two paragraphs of the document. The text as provided to the appellant follows:
- ‘I am advised by the University Solicitor that [TWO LINES DELETED] was informed by Mrs Howell that she did not have to participate in a face to face interview with the University appointed investigator and that she only supply information by way of a written statement.
Mrs Howell’s communication to [SHORT DELETION] breaches the University’s request that she not speak to potential witnesses about this matter. Further, her communication to [SHORT DELETION] is an unwarranted interference with the manner in which the University has determined this matter should be investigated. I have, therefore, determined that the University should issue Mrs Howell with a formal direction in the terms attached.’
16 It will be apparent that the short deletions in the second paragraph relate to the name of a person whose identity the University wishes to keep confidential.
17 In its submissions the University refers to the background to the warning. This background is also canvassed in the Appeal Panel’s earlier decision. In summary, the University commissioned an independent person, Mr Kelly, to investigate and report to the University on allegations of mistreatment of a child enrolled in the special school for children with disabilities conducted by the University. Mrs Howell was vice-principal of the school, and had been implicated by the allegations. As also noted previously, ultimately she and the two other staff members implicated by the allegations were found not to have a case to answer. Mrs Howell, from the beginning, refused to co-operate with the investigation in the manner desired by the investigator and the University, i.e. to submit to face-to-face interviewing without prior notice of the questions to be asked. She was only prepared to submit to questions provided in writing and with time to prepare written responses. She had been advised to adopt that stance by her husband, Mr Howell, a solicitor, and her representative in these proceedings.
18 Clause 13(b) of Schedule 1 provides:
- ‘A document is an exempt document:
(b) if it contains matter the disclosure of which:
- (i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.’
19 In support of the exemption the University referred in its (open) written submissions to the general principles developed in the case-law in connection with requirements (i), (ii) and (iii).
20 The Tribunal has in a number of cases recognised the need for confidentiality in investigations. It has recognised that it is a usual aspect of investigations for the investigator to give a guarantee of confidentiality to an interviewee. The Tribunal has also recognised that a point may arise in dealing with the fruits of an investigation where the guarantee of confidentiality may not be able to be maintained. For example, if charges are laid against a person that rely on the information originally obtained in confidence, it may be necessary to expose that information and the identity of the giver of the information so as to accord natural justice to the person charged. These possibilities are, in the experience of the Tribunal, usually explained by competent investigators to those with whom they deal. On the other hand, an investigator – and subsequently a prosecutor – may make an active choice not to rely on particular information so as to preserve the anonymity of a source, and use that information only as a means for finding evidence which it will rely on. These are all well-known facets of investigation.
21 There have been many cases in the Tribunal in which the Tribunal has referred to the important role of confidentiality for informants in the effective conduct of investigations. See for example, Watkins v Chief Executive, Roads and Traffic Authority [2000] NSWADT 11; and TW v TX [2005] NSWADT 262.
22 The Tribunal has also accepted, in general, that any breakdown in the perception that investigations of the kind under notice are conducted in the strictest confidence could reasonably be expected to prejudice the future supply of information. The University’s submissions gave illustrations drawn from the Tribunal’s case-law and from rulings involving analogous branches of the law by the Courts. It referred, for example, to the case of Director General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320. There the Court of Appeal upheld a claim to public interest immunity in relation to the names, addresses and telephone numbers and any other material identifying, or tending to identify, the residents in a retirement village who had complained to the Department about the management of the village.
23 The submissions referred to cases where these issues had arisen in the context of allegations relating to the treatment or welfare of children, for example Druett v Director General, Department of Community Services (No 2) [2004] NSWADT 269; and Re Schorel and Director General of the Department of Community Services (Vic) (1991) 4 VAR 436.
24 The submissions noted at a number of points that much depended on the circumstances. As to the circumstances, here it referred to the following matters:
- - The common understanding of those affected by the investigation that Mr Kelly would proceed in a confidential way, and that those assisting him with his enquiries would be accorded confidentiality
- The adoption of the special guidelines issued by the State Ombudsman in connection with the investigation of complaints relating to the welfare of children
- The matters canvassed in the (confidential) affidavit of Professor Loxton in relation to the need for confidentiality in investigations of this kind.
25 In reply the appellant queried whether there was sufficient evidence that the deleted information was protected by cl 13, as distinct from whether the investigation as a whole was conducted in confidence. The appellant recognised that a promise of confidentiality need not be express and can be inferred from the circumstances.
26 The submissions noted that neither party to a communication that occurred on 28 February 2005 between the informant and the University Solicitor has given evidence as to whether the communication was given under a promise of confidentiality. Mr Howell referred to the transcript of evidence of the proceedings before the Tribunal, 20 December 2005, at pp 17-19. Counsel for the University, Ms Allars, conceded at that time in response to questions from the Judicial Member that there was no direct evidence as to the confidentiality of the communications from either the giver of the information or Ms O’Brien. She indicated that the University relied in this regard on the evidence of Professor Loxton, Deputy Vice-Chancellor (Academic) and Mr Spencer, the Registrar and Vice-Principal. Ms Allars added that the communication was made in a very precise context of the conduct of an investigation under Part 3A of the Ombudsman Act in relation to an allegation of reportable conduct made against employees of the respondent. (The nature of Part 3A investigations is dealt with more fully in the Appeal Panel’s previous decision.)
27 The Appeal Panel has reviewed all the relevant material, in particular notes made by the University Solicitor relating to the informant’s dealings with the University Solicitor that are among the group of documents the subject of the legal professional privilege claim. We have also re-examined the evidence given by Professor Loxton and Mr Spencer.
28 We would observe that the information sought to be protected is tangential to the child welfare investigation. It is not a communication that bears on the substantive matters given to Mr Kelly to investigate. The communication relates to conduct by Mrs Howell that was seen as being inconsistent with the indication given the University to her that there was to be no interference with Mr Kelly’s ability to conduct the investigation as he saw fit. The meeting on 17 February 2005 had focused on this issue (see previous decision for fuller detail). The position of the University was well known to those attending the meeting including Mrs Howell, though hotly debated by her.
29 In our view, the University’s submissions are not convincing. They seek to place the communication within the framework of the considerations as to confidentiality that are so important in the effective conduct of investigations into alleged mistreatment of children. The communication the subject of Document 1 is concerned, as we see it, with perceived employee misconduct in not complying with an employer’s direction. There is no direct evidence from either party to the communication as to its confidentiality.
30 In our view the element (i) of para 13(b) has not been proven.
31 It is unnecessary therefore to go on and deal with elements (ii) and (iii).
(B) Documents 2-6; 8-12; and 14.
32 The Appeal Panel affirmed the Tribunal’s decision in relation to Documents 2 to 6 and 8 to 14. In the case of Document 15, it remitted the document to the agency for reconsideration.
33 The University decided to set aside its decision of 12 September 2005, and released the document in full to the appellant. While claiming that Document 13 was exempt on the ground of legal professional privilege, the University decided that it would release that document in the exercise of its (undoubted) discretion not to insist on an exemption.
34 Accordingly 11 documents which remain in issue are Documents 2-6, 8-12 and 14. The University considered whether to exercise its discretion not to refuse to disclose exempt matter. It stated that it was not able to identify any special or overriding circumstances or any reason to justify exercise of discretion to release any of the documents.
35 A timetable was set for the making of further submissions on whether the documents should be released in the exercise of the residual discretion. The University submissions were filed 22 August 2007, and the appellant’s submissions in reply on 8 September 2007. The parties have agreed to the matter being determined on the papers (see ADT Act, s 76).
Assessment
36 The following text repeats almost verbatim observations made by the President (then sitting at first instance) in the recently published decision Cianfrano v Director General, Premier’s Department [2007] NSWADT 216 (19 September 2007) at [22] to [31]. They are not unlike the submissions made by the University in this case.
37 There have now been some cases in the Tribunal where a discretionary release of exempt material has occurred, see for example Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 (Handley ADP); P v Greater Western Area Health Service [2007] NSWADT 87 (Handley ADP); and Watts v Forests NSW [2007] NSWADT 197 (Montgomery JM).
38 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged:
- - The Tribunal must first ascertain whether the matter is exempt matter.
- The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
- The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s 5.
39 As can be seen, the objects clause of the Act, s 5, now has a greater degree of prominence than previously in Tribunal deliberations. Section 5 provides:
- ‘ 5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
- (a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
- (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
- (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
40 In General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502, the Court of Appeal placed significant weight on the ‘general policy of disclosure’ enshrined in the FOI Act, and on the fact that s 5(3) requires that the Act be interpreted and applied so as to further its objects. McColl JA (with whom Handley and Hodgson JJA agreed) said at [151]; and LR 534:
- ‘The Full Federal Court’s approach [in News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64], in my view, accords with the s 5(3) obligation to interpret and apply the FOI Act so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: s 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters.’
41 Practical circumstances that might influence the Tribunal to exercise the discretion include:
- - whether the exempt matter was, by other means, in the public domain
- whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant
- the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity
- the public interest in an informed debate on issues of significance to the community
- whether there were adverse consequences for the proper administration of government, and their extent
- whether any adverse consequence is remote or innocuous.
42 The public interests which the secrecy afforded by legal professional privilege seeks to serve are very important ones. They were referred to recently by the Victorian Court of Appeal in Secretary to the Department of Justice v Osland [2007] VSCA 96. The review tribunal (the Victorian Civil and Administrative Tribunal) decided that, in exercise of the public interest discretion, a privileged document should be released. The document contained the advice of three QCs to the Government in respect of a Petition of Mercy seeking a Pardon. The petitioner was a woman who had been convicted and imprisoned for murder of her husband. She spent nine years in gaol before being released on parole. The deceased had inflicted great physical cruelty on her and the family over many years. There has been a strong public campaign in support of Ms Osland’s petition. The Court of Appeal set aside the review tribunal’s decision.
43 Maxwell P noted at [84] (footnotes omitted):
- ‘84 … As the High Court has stated, the doctrine of privilege is itself the product of a balancing exercise between competing public interests, whereby the public interest in the "perfect administration of justice" is accorded paramountcy over the public interest that requires the admission in evidence of all relevant documents. The public interest factors which underpin the privilege support all privileged documents uniformly. Those factors do not vary depending upon the particular content of a privileged document or upon whether the document has, or lacks, current relevance. As McHugh J said in Giannarelli v Wraith (No 2) [(1991) 171 CLR 592 at 601] said:
- “[O]nce legal professional privilege attaches to a document ... that privilege attaches for all time and in all circumstances.”’
44 It will be seen that Maxwell P rejected the suggestion that the passage of time will necessarily be relevant to the protection of certain classes of documents. In these remarks, his Honour focused on the intrinsic value of upholding the privilege regardless of any particulars as to the content of the document or the currency of the issues or controversies with which it deals. This view reflects a concern that any ‘watering down’ of the secrecy traditionally accorded to communications protected by legal professional privilege would reduce the preparedness of clients to communicate frankly with their legal advisers. In turn, the administration of justice would be impaired.
45 In its submissions in this case the University referred to the following specific considerations relevant to this case:
- (i) There are no relatively extreme circumstances.
(ii) There are no countervailing considerations of higher public importance capable of outweighing the public interest reflected in cl 10.
(iii) The legal professional privilege exemption is founded on public interest and reflects a balancing of public interests which has already been undertaken, and resolved in favour of non-disclosure.
(iv) Requiring access to be given would override the specific public interest supported by legal professional privilege of preserving the ability of the respondent to obtain advice and present its case in litigation.
(v) In this case there was evidence of anticipated litigation between the parties. In such litigation the respondent would ordinarily be entitled to claim privilege over the documents in the event of any attempt to obtain access to them by discovery.
(vi) The nature of other documents released to the applicant by the respondent, whether in the context of these proceedings or otherwise, cannot render some documents “less privileged”, or have any relevance to the exercise of the discretion.
(vii) To require access to be given would subvert the public interest on which the privilege is founded, by depriving the respondent of its entitlement to claim privilege over the documents in any litigation between the parties.
46 The appellant submitted that the Tribunal should have regard to the extent to which parts or the whole of the information found in the documents have been released in other ways. The appellant noted that the parts of the documents in dispute that have been released in the past are the subject of Exhibit B6. The appellant requested that the Panel check whether there are any other statements of alleged fact which have not been released, and to confirm in its judgment that any material withheld does not record statements of alleged fact about the appellant.
47 The Panel has reviewed the released parts and compared them with the unreleased parts. Consistently the University has released all pure statement of fact contained within the documents. The released texts refer to Mrs Howell’s unwillingness to submit to a face-to-face interview with the investigator and such matters as to the content of communications that have been made to Mrs Howell in that regard. The unreleased texts are all in the nature of legal opinion, assessment or advice. In the Panel’s opinion, they do not include any additional allegations as to acts or conduct. That is as far as it is appropriate for the Panel to go. The Tribunal (and that includes the Appeal Panel) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter: see FOI Act, s 55(1).
48 In the Appeal Panel’s opinion, no matter of such significance has been raised to justify overriding legal professional privilege, and giving access to the exempt material.
Orders
- 1. Determination of respondent in respect of Document 1 set aside.
2. Determination of respondent in respect of Documents 2-6; 8-12; and 14 affirmed.
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