Jackson v University of New South Wales

[2019] NSWCATAD 224

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Jackson v University of New South Wales [2019] NSWCATAD 224
Hearing dates:	18 and 19 March 2019, 15 April 2019
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1)   The decision of the University is affirmed in regard to: (a) the deletions in the list of documents in Schedule 1; (b)   the deletions in document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 listed in Schedule 2; (c)   document 4.08, 4.13, 4.14, 4.15, 4.16, 4.20, 4.22, 4.23, 4.25, 4.26, 5.69, 5.70, 5.71, 5.72, 5.73, 5.78, 5.79, 5.80, 5.81, 5.82, 5.84, 5.85, 5.86, 5.87, 5.88, 5.89, 5.90, 5.91, 26.28, 27.08, 27.12, 27.14, 27.15, 27.24, 27.25, 27.26, 27.51, 27.52, 27.57, 27.60, 27.61, 27.63, 27.64, 27.65, 27.66, 27.67, 27.72, 27.79, 27.82, 27.83, 27.84, 27.85, 27.86, 27.87, 27.88, 27.89, 27.87, 27.88, 27.89, 27.90, 27.91, 27.92, 27.93, 27.101, 27.107, 27.108, 27.109, 27.110, 27.111, 27.112, 27.113, 27.115, 27.118, 27.119, 27.120, 27.121, 27.122, 27.133, 27.134, 27.150, 27.154, 27.155, 27.156, 27.157, 27.159, 27.163, 29.52, 29.53, 29.54, 29.55, 29.56, 29.57 and 29.58 in Schedule 3; and (d)   the documents at Tab 270 of the Schedule 3 documents. (2)   The decision of the University in regard to the deletions in document 5.16, 5.32, 5.33, 5.38, 5.56, 5.57, 5.58, 5.59, 5.64, 5.65, 5.66, 5.67, 5.68, 5.74, 703, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.30, 7.31, 7.32, 7.33, 7.35, 7.36, 7.38, 7.39, 7.75, 7.76, 7.106, 7.107, 7.108, 7.109, 7.111, 7.121, 12.28, 15.172, 15.173, 15.195, 18.01, 18.35, 18.36, 22.01,22.02, 22.03, 22.04, 22.05, 22.06, 22.07, 26.01, 26.02, 29.46, 29.47, 29.48, 29.49, 29.50, 31.17, and 31.18 listed in Schedule 2 is set aside and in substitution thereof a decision that the Applicant be granted access to that information is made. (3) Other than the decision in regard to documents referred to in order 1(c) above, the decision of the University in regard to the remaining documents listed in Schedule 3 is set aside and remitted for reconsideration by the University in accordance with these reasons for decision and the provisions of the GIPA Act.
Catchwords:	ADMINISTRATIVE LAW – access to government information – presumed conclusive public interest against disclosure - client legal privilege – excluded information. ADMINISTRATIVE LAW – access to government information – whether the cl 1(e), 1(f), 1(g), 3(a), 3(b) and 3(f) public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Government Information Public Access Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) University of New South Wales Act 1989 (NSW)
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098; (2013) 306 ALR 384 Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 57 AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Battin v University of New England [2013] NSWADT 73 Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 Colefax v Department of Education and Communities [2013] NSWADT 72 Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; (1997) 141 ALR 545 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543 Diehm v Greater Taree City Council [2010] NSWADT 241 Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 DSE (Holdings) PTY Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Jackson v The University of New South Wales [2018] NSWCATAD 12 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADT 4 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2004] NSWADTAP 40 Law Society of New South Wales v General Manager, Workcover Authority of New South Wales (GD) [2005] NSWADTAP 33 Leech v Sydney Water Corporation [2010] NSWADT 298 Mann v Carnell [1999] HCA 66, (1999) 201 CLR 1 McLennan v University of New England [2013] NSWADT 113 Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 New South Wales v Jackson [2007] NSWCA 279 Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 Saggers v Environment Protection Authority [2014] NSWCATAD 37 SL v University of Sydney [2011] NSWADT 65 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Waterford v Commonwealth (1987) 163 CLR 54 at 73;
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Trevor Jackson (Applicant) University of New South Wales (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: Applicant (Self Represented) Compliance and Legal Office of the University of New South Wales(Respondent)
File Number(s):	2018/00315520
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [Not to be published]. That material is not to be published or released to the Applicant, without further order of the Tribunal.

Reasons for decision

Introduction

1. The Applicant, Trevor Jackson, is a former PhD student of the respondent, the University of New South Wales (the University) and seeks review of the decisions of the University in regard to his application for access to specified information pursuant to the provisions of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The University received the Applicant’s access application on 5 February 2018. The Applicant’s access request contained 37 separate specific requests for access. The information sought in almost all of these specific requests was for access to ‘all correspondence and documents of meetings’ from, or to 32 and more individually named academic and other staff members of the University, the Student Conduct and Appeals office and the ARC Legal Services. The Applicant also sought access to copies of his medical and counselling records held by the University.

2. The University made three decisions in regard to the Applicant’s access application. The first decision was made on 29 March 2018 and related to the Applicant’s request for access to his medical and counselling records held by the University. In this decision, the University noted that the information sought was held in electronic form by the UNSW Health Service and the UNSW Counselling and Psychological Services (CAPS) and determined that the Applicant be granted access to the information sought.

3. The remainder of the Applicant’s access request was determined by the University on 19 April 2019 (the second decision). In that decision, the University decided:

1. to provide the Applicant with access to some of the information sought;

2. that some of the information sought was not held by the University, in particular the information sought from the ARC Services;

3. to refuse to provide the Applicant access to the remaining information sought because:

1. there was a conclusive presumption of an overriding public interest against disclosure in that the information was privileged or it was excluded information: GIPA Act, s14(1) Sch 1, cl 5 (legal professional privilege) and cl 6 (excluded information); or

2. on balance, the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure: GIPA Act, ss 13 and 14(2) Table cl 1(e) and 1(f) and cl 3(a), 3(b) and 3(f); and

4. to refuse to deal with his access application in part because:

1. dealing with the application in its entirety would require an unreasonable and substantial diversion of the University’s resources: GIPA Act, s 60(1)(a); and

2. the University has already decided a previous access request from the Applicant for the substantially the same information and there is no reasonable grounds for believing the University would make a different decision: GIPA Act, s 60(1)(b).

4. In its reasons for decision the University noted that over 1,500 documents had been located as falling within the Applicant’s access request. It was also noted that it was estimated that, up to the date of the second decision, it had taken 38.1 seven hour days to deal with his application.

5. The amount of time taken to deal with his request and the large volume of documents located is reflected in the 49 page schedule attached to the second decision. That schedule lists every document the University had located, a description of the document (primarily email or email chain), the date of the document, whether it had been determined to grant or refuse to grant the Applicant access to the document (in part or whole) and if determined not to grant access, the grounds on which that decision had been made. The documents were arranged in the order of the 37 specific access requests of the Applicant. Each document was allocated an ‘Item No’, that reflected which Item (i.e. paragraph number) in the Applicant’s access request they related to. For example, the seven documents that related to the first Item on the Applicant’s list of specific request were numbered 1.01 through to 1.07. The same numbering approach was used in respect of all the documents on that schedule.

6. As noted by the University in these proceedings, given the very specific nature of the Applicant’s access request there is considerable duplication in the information (email chains) listed on the schedule of the University’s second decision. This is because, in almost every instance, where the Applicant had requested copies of correspondence from, or to a specifically named staff member (e.g. A in Item 1 on the applicant’s GIPA request) that named or identified him had been sent to, or received from one or more of the other specifically named staff members in his GIPA application (e.g. B in Item 2 and/or C in Item 3). Consequently, the same information that had been sent or received by the first named staff member (A) was also included in the schedule of one or more of the other specifically named staff members (B and C). However, that information was given a different Item No depending on where in the list the other staff members appeared on the Applicant’s list (e.g. 2.1 for B and 3.1 for C).

7. That there is considerable duplication is also evident from the information that has been disclosed to the Applicant.

8. The Applicant sought review of the University’s second decision by the Information Commissioner, which he was entitled to do: GIPA Act, s 89.

9. The Information Commissioner completed her review on 6 August 2018. In her Review Report the Information Commissioner recommended that the University make a new decision (by way of internal review) in respect of the following information for which access had been refused:

1. the information withheld solely on the basis of considerations 3(a) and 3(b) of the Table at s 14(2) of the GIPA Act;

2. the information withheld solely on the basis of consideration 3(f) of the Table at s 14(2) of the GIPA Act; and

3. the information withheld on the basis of legal professional privilege.

10. The Information Commissioner was otherwise satisfied, on the information available, that the decision of the University was justified.

11. The University decided not to follow the recommendations of the Information Commissioner in regard to the information for which there had been a claim for legal professional privilege, or the information which had been withheld solely on the basis of cl 3(f) of the Table to s 14(2) of the GIPA Act. However, the University did agree to review its decision in regard to the information that was solely withheld on the basis of cl 3(a) and 3(b) of the Table.

12. The University completed this review (the third/internal review decision), on 6 September 2018, and determined to affirm its earlier decision.

13. In his application for external review by the Tribunal, the Applicant said:

I request the Tribunal review the documents under question to determine whether claims of legal professional privilege and the other exemptions claimed amount to the concealment of an abuse of power, or otherwise invalid use of the exemptions they have claimed.

14. After lodging the application and prior to his application being heard, the University agreed to grant the Applicant access to some further material. However, the majority of the information for which access was refused remains in dispute. The University has prepared three separate Schedules that list the email chains containing the information that remain in dispute. These are identified as Schedule 1, Schedule 2 and Schedule 3, and as I have identified below, each Schedule relates to one of the three grounds on which the University has refused access. There is one large arch leaver folder of Schedule 1 documents, one large arch leaver folders of Schedule 2 documents and three large arch leaver folders of Schedule 3 documents.

15. There is no dispute that the Tribunal has jurisdiction to review the decisions of the University in regard to the Applicant’s access application: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 55 and GIPA Act, s 100. The nature of the Tribunal’s jurisdiction is a merits review in which the Tribunal sits in the shoes of the University and determines the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable law: ADR Act, s 63(1).

16. It is accepted that in these proceedings, the onus is on the University to establish that its decision is justified: GIPA Act s 105.

Matters in issue

17. The principal matters in issue in this application are whether:

1. there is a presumed conclusive overriding public interest against disclosure of the information in the 270 email chains listed in Schedule 3 on the grounds of:

1. legal professional privilege (269 email chains): GIPA Act, s 14(1), Sch 1, cl 5 and

2. excluded information (a small bundle of documents); GIPA Act, s 14(1), Sch 1, cl 6;

2. the public interest against disclosure in cl 1(e), 1(f) and/or 1(g) of the Table to s 14(2) applies to the redated information in the 77 email chains listed in Schedule 2 and, on balance, that public interest consideration against disclosure outweighs the public interest in favour of disclosure; and

3. the public interest against disclosure in cl 3(a), 3(b) and/or 3(f) of the Table to s 14(2) applies to the redated information in the 83 email chains listed in Schedule 1 and, on balance, that public interest consideration against disclosure outweighs the public interest in favour of disclosure.

18. The other matters that arose from the Applicant’s application for external review and which were addressed by the respondent in its written submissions are:

1. the University’s decision that it did not hold the information sought;

2. the University’s decision to refuse to deal with specified aspects of the Applicant’s access application because it would require an unreasonable and substantial diversion of resources; and

3. the University’s decision concerning those redactions which it identified as being ‘out of scope’.

19. It is unnecessary for me to deal at any length with (1) and (2) above, as the Applicant did not press these at the hearing.

20. In regard to 18(1) above, as I have noted, in its second decision, the University advised that it did not hold any information sought from the ‘ARC Legal Services’, as this was a separate organisation over which it had no control. In these proceedings, the University has tendered into evidence the ASIC Current Company Extract of that entity, ARC@UNSW Limited, together with its Constitution (see statement of Electra Zen Woodrow at annexure EW29), which establishes that it is a separate entity from the University. Accordingly, and appropriately so, this was no longer an issue in these proceedings.

21. In regard to 18(2) above, during the hearing, the Applicant readily acknowledged that, given the extent of his access application and the amount of time the University had already spent on his application, it would require an unreasonable and substantial diversion of the University’s resources for it to deal with his application in so far as it related to the specific information requested from the University’s TRIM files and the Outlook data files of six former employees of the University. The Applicant explained that the University had told him he could make his access request as wide as he liked.

22. I have briefly dealt with the ‘out of scope’ issue at the end of these reasons for decision. In summary, I have noted that a decision of a government agency that information is ‘out of scope’ is not a reviewable decision under s 80 of the GIPA Act. Hence, the Tribunal has no jurisdiction to review such a decision.

The GIPA Act

Object and General principles of the GIPA Act

23. Section 3 of the GIPA Act sets out the objects of the Act as follows:

3   Object of Act

(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

24. Section 5 of the GIPA Act provides as follows:

5   Presumption in favour of disclosure of government information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Public interest test

25. Section 13 of the GIPA Act defines what is meant by the term ‘overriding public interest against disclosure’ as follows:

13   Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

Public interest considerations in favour of disclosure

26. Section 12 deals with the public interest considerations in favour of disclosure, which are not closed. That section provides as follows:

12   Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

(3)   The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies

27. The term ‘personal information’ is defined in cl 4 of Sch 4 of the GIPA Act as follows:

4   Personal information

(1)   In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)   Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)   Personal information does not include any of the following:

(a)   information about an individual who has been dead for more than 30 years,

(b)   information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c)   …

Public interest considerations against disclosure

28. Section 14 of the GIPA Act deals with the public interest considerations against disclosure, which are closed.

29. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1 of that Act. In this case, the University primarily relies on the conclusive presumption in cl 5 of Schedule 1 – legal professional privilege. It also relies on the conclusive presumption in cl 6 of Schedule 1 – excluded information. I have dealt with this ground in more detail below.

30. Section 14(2) of the GIPA Act provides that the public interest considerations listed in the Table to that section are the only other considerations that may be taken into account under that Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. The relevant provisions of the Table in this application are in the following terms:

1   Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

(a)   …

…

(e)   reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

(f)   prejudice the effective exercise by an agency of the agency’s functions,

(g)   found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, …

3   Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a)   reveal an individual’s personal information,

(b)   contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

(f)   expose a person to a risk of harm or of serious harassment or serious intimidation, …

31. Section 15 of the GIPA Act sets out the principles that apply in determining whether the relevant s 14(2) public interest consideration against disclosure, on balance, outweighs the public interest consideration in favour of disclosure. That section is in the following terms:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

Process for dealing with an access application

32. Section 53 sets out the searches an agency must undertake in providing access to government information. That section relevantly provides:

53   Searches for information held by agency

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)   …

(5)   An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources

33. Section 54(1) of the GIPA Act requires an agency to take such steps as are reasonably practicable to consult with a person before providing access to information relating to that person in response to an access request if it appears that:

1. the information is of a kind that requires consultation;

2. the person may reasonably be expected to have concerns about the disclosure of the information; and

3. those concerns may be relevant to a public interest consideration against disclosure.

34. Information that does require consultation is information that is personal information about a person other than the person seeking access: GIPA Act, s 54(2)(a).

35. Section 55 makes provision for the consideration of personal factors of an application to be taken into account when dealing with an access request. That section provides as follows:

55   Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)   …

How an access application is to be decided

36. Section 58 of the GIPA Act sets out how an access application is to be decided. That section relevantly provides as follows:

58   How applications are decided

(1)   An agency decides an access application for government information by:

(a)   deciding to provide access to the information, or

(b)   deciding that the information is not held by the agency, or

(c)   deciding that the information is already available to the applicant (see section 59), or

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e)   deciding to refuse to deal with the application (see section 60), or …

Form of access

37. Section 73(1) provides that an agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. That is, where an agency provides access to the information sought, an access applicant is free to use and disclose that information as he or she sees fit.

Administrative review by NCAT

38. As I have already noted, in review proceedings before the Tribunal the onus is on the University to establish that its decision is justified: GIPA Act, s 105.

39. Section 107 of the GIPA Act sets out the procedure the Tribunal is to adopt when hearing and determining an application for review under that Act. That section provides:

107   Procedure for dealing with public interest considerations

(1)   In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2)   On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3)   On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a)   the public and the applicant, and

(b)   the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

40. The object of this provision is to ensure that there is no disclosure to the applicant or the public of the information for which there is a claim of an overriding public interest against disclosure. It is on this basis that sections of these reasons for decision are marked confidential and not disclosed to the applicant or the public. However, these sections are disclosed to the University.

The Evidence

41. In support of its case, the University filed and served:

1. a statement (dated 1 February 2019) of Ms Elektra Zen Woodrow (Ms Woodrow), Compliance Officer of the University (Ex R1);

2. a statement (dated 30 January 2019) of Professor Mary-Louise McLaws (Professor McLaws), Professor of Epidemiology, Healthcare Infection and Infectious Diseases Control and Deputy President of the Academic Board of the University (Ex R2);

3. a statement (dated 1 February 2019) of Elizabeth Joan Grinston (Ms Grinston), General Counsel and University Solicitor of the University that attaches a Schedule, with redactions, of the information for which access was refused on the grounds of legal professional privilege (Ex R3);

4. a further open statement of Ms Grinston (dated 1 February 2019) in regard to her role and the role of named officers of the Legal Office of the University (Ex 4);

5. a copy of:

1. the letter from Professor Poole-Warren to the Applicant dated 8 July 2015;

2. the University’s Recordkeeping Standard;

3. the University’s Record Appraisal Procedure; and

6. a copy of the documents/information for which the Applicant had been granted access.

42. The University also provided the Tribunal, in confidence, pursuant to s 107 of the GIPA Act, with:

1. a copy of the email chains that were withheld on the grounds of legal professional privilege and exempt information;

2. an un-redacted copy of the information that was withheld on the grounds that, on balance, the public interest consideration against disclosure of this information outweighed the public interest in favour of its disclosure;

3. a copy of the out of scope information; and

4. an un-redacted copy of the Schedule to Ms Grinston’s open statement (Ex 3) regarding the documents and information withheld on the grounds of legal professional privilege. The redacted information on the Schedule

43. The Applicant relied on an Appendix that was attached to his written submissions of 3 March 2019 (Ex A1). The Applicant filed and served further submissions on 10 April 2019.

44. The University relied on the various submissions it had filed and served. As noted above, at [14] and [17], to assist the Applicant and the Tribunal, on 18 March 2019, the University provided three Schedules (Schedule 1 (re the cl 3(a), 3(b) and 3(f) redactions), Schedule 2 (re the cl 1(e), 1(f) and 1(g) redactions) and Schedule 3 (legal professional privilege)) of the documents/information that remained in issue.

45. Subsequently, the University filed and served a further Schedule, Schedule 4, which was a revised version of Schedule 2 in that it contained additional information in regard to the redacted drafts of correspondence that were to be sent to the Applicant. Attached to Schedule 4 was a copy of the correspondence that was in fact sent to the Applicant, if any.

46. At the hearing of the Applicant’s application, the applicant appeared by telephone as he resides overseas. Professor McLaws and Ms Grinston gave oral evidence, in person, at the hearing and they were cross-examined by the Applicant.

47. I have dealt with the evidence and the submissions of each party below.

The Applicant’s case

48. The background to the Applicant’s access application is his candidature as a PhD student with the University, which the University formally ‘discontinued’ in July 2015. Attached to the Applicant’s submissions of 13 March 2019 is a ‘Time Line’ prepared by the Applicant. The ‘Time Line’ mainly deals with the information the Applicant has been granted access to and highlights what the Applicant asserts to be inconsistencies in what he has been told by various staff members of the University. These inconsistencies are of little assistance in determining this application as they mainly concern the substance of the Applicant’s ongoing dispute with the University in regard to his PhD candidature.

49. To the extent relevant to this application the Applicant’s explanation of the sequence of events in which the disputed information was brought into existence and was exchanged between the Applicant and University staff members was as follows:

1. in August 2011 the Applicant migrated to Australia to take up his post doctoral studies (PhD) at the University within the School of Arts and Media. He was the recipient of the International Postgraduate Award (UIPA) in the field of English literature. The award had been offered to him on the basis of a proposal he had submitted to the University’s School of the Arts and Media. As part of the offer, Professor Helen Groth was chosen to be the Applicant’s supervisor and Senior Lecturer Christopher Danta was chosen to act as co-supervisor.

2. being concerned about the lack of sufficient supervision, the Applicant raised these concerns with an officer of Student Liaison at the Graduate Research School (GRS). Following discussions with Student Liaison, on 29 May 2012, the Applicant sent an email to Professor Groth telling her that he had decided to terminate her supervision of his PhD studies;

3. on 26 June 2012, Professor Andrew Schultz, the Head of the School of the Arts and Media, sent the Applicant a ‘formal warning’ alleging misconduct. After consulting Student Liaison, where he was advised that Professor Schultz did not have the authority to issue such a warning, the Applicant sent an email to Professor Schultz and asked if there was a misunderstanding. He also requested a face-to-face meeting. However, Professor Schultz did not reply. It is the contention of the Applicant that from this time on he was continually undermined by academic and other staff members of the University;

4. on 10 July 2012, Associate Professor Jolly was appointed to supervise the Applicant’s PhD research;

5. on 27 May 2013, Associate Professor Jolly resigned from the University and ceased being the Applicant’s main supervisor;

6. during June and July 2013, there was considerable correspondence amongst staff (including academic staff) and between staff and the Applicant in regard to a new supervisor for the Applicant’s PhD research. The Applicant said he became ‘extremely uncomfortable’ in the environment he was working, especially in working with the individuals within the School of the Arts and Media. He said, given his concerns, he took it upon himself to ‘propose a leave of absence and to suggest continuing my degree from abroad’. The Applicant asserted that Professor Poole-Warren, then Pro Vice-Chancellor (Research) of the University, approved his plan and recommended that he take leave from the start of the second semester and use this time to find a new supervisor, or alternatively he could transfer to another institution;

7. in June 2013, the Applicant made a complaint, under the University’s Student Complaints Procedure, about the University having failed to provide him with a suitable supervisor. A decision was made not to deal with his complaint. Being dissatisfied with this outcome, the Applicant lodged an appeal with the University’s Student Complaints Appeal Committee, which was heard at the end of October 2014. The applicant was unsuccessful in his appeal;

8. in August 2013, the Applicant accepted a lecturing position at a University in China. The Applicant said he accepted the position on the condition he could continue with his PhD studies with the University on a ‘part-time external status’ once he found a supervisor. The Applicant found a potential supervisor at the University where he was lecturing. However, Professor Poole-Warren refused to accept that person as his supervisor;

9. even after the Applicant left the University there was ongoing correspondence amongst staff and also between staff and the Applicant in regard to a main supervisor for the Applicant’s PhD research. The Applicant had identified an external supervisor. The University advised that its policies and procedures did not allow for external supervisors; and

10. in a letter dated 8 July 2015, Professor Poole-Warren formally advised the Applicant that his PhD candidature at the University had been ‘cancelled’.

50. Since that time, the applicant has made a number of GIPA Act access requests (including the request the subject of this application) and, in April 2016, he sought an internal review of conduct of the respondent in dealing with his initial GIPA application under the Privacy and Personal Information Protection Act 1998 (NSW).

51. In regard to this application, the Applicant questioned the motivation of the University in withholding the disputed information from him. He asserts that the University’s claim of privilege over the documents and information for which he had sought access amounted to bullying. He asserted that, based on the information he had been granted access to, this disclosed ‘disturbing patterns of administrative conduct … involving a large number of personnel’ of the University. He asserted that there was ‘glaring evidence of malfeasance in the [University’s] admission process’, the enrolment procedures and the treatment of international students.

50. In his subsequent submissions, filed on 10 April 2019, the Applicant made submissions specifically in regard to the withheld information in document 26.10, which is an email chain dated 24 June 2016 and for which the University has made a claim of privilege in regard to the information that is on the bottom of page 1 of that chain and the entirety of pages 2, 3 and 4 of that email chain. I have dealt with this document below.

The University’s case

53. The University contends that the original decision and the internal review decision, as amended during the course of these proceedings, is the correct and preferable decision and should be affirmed.

54. In support of its claim the University primarily relied on the evidence of Professor McLaws and Ms Grinston. I have dealt with this evidence below, but it is necessary to briefly deal with the evidence of Ms Woodrow.

55. As I have noted, Ms Woodrow is the Compliance Officer of the University. She reports to Mr Paul Serov, who is the University’s Compliance Manager, Right to Information Officer and Privacy Officer. Ms Woodrow has held her current position since 28 August 2017.

56. In her statement Ms Woodrow, set out the consultations between Ms Heesom and the Applicant in dealing with his access application. Copies of those consultations were annexed to Ms Woodrow’s statement.

57. Ms Woodrow explained how searches for records held by the University in regard to the Applicant’s access request were undertaken. She explained that she and Ms Heesom sent individual emails to 32 current staff members who had been identified by name or position in the Applicant’s access request. Each staff member was asked to review his/her records for information they held falling within the relevant paragraph of the Applicant’s access request and forward these to her or Ms Heesom. Ms Woodrow explained that in response to their email, she and Ms Heesom received 1789 records, which primarily consisted of email chains of more than one page.

58. Ms Woodrow also explained what additional searches were undertaken and for which further records were obtained. She explained why aspects of the Applicant’s access request would be an unreasonable diversion of resources.

59. Attached to Ms Woodrow’s statement were copies of the decisions of the University in regard to this application for access, the decision of the Information Commissioner and the decision of the University in regard to an earlier access request of the Applicant on 28 April 2017.

Evidence of Professor McLaws

60. The evidence of Professor McLaws is primarily relevant to the University’s claim in regard to the information in the Schedule 2 documents where the University has made a claim under the responsible and effective government public interest considerations against disclosure in cl 1(e), 1(f) and 1(g) of the Table to s 14(2) of the GIPA Act. Professor McLaws explained that the nature of this information was as follows:

1. drafts of correspondence, which were to be sent to the Applicant from the School of the Arts and Media, the Faculty of Arts and Social Sciences, the Graduate Research School (GRS) and the Vic-Chancellor’s Office, that were circulated amongst relevant staff members for the ‘purpose of obtaining advice on content’;

2. drafts of correspondence, which were to be sent to the Applicant in regard to a complaint he made, that were circulated amongst relevant staff members of the University in order to respond to his complaint;

3. drafts of minutes of a meeting of the Faculty of Arts and Social Sciences Higher Degree Committee (HDC);

4. draft minutes of a meeting between staff of the Faculty of Arts and Social Sciences and the Applicant; and

5. draft minutes of the meeting of the Appeal Committee which determined the Applicant’s appeal, and draft correspondence which was to be sent to the Applicant following the appeal.

61. In her statement Professor McLaws explained that she has been a professor at the University since January 2011. Since January 2017, she has also been the Deputy President of the Academic Board of the University. Prior to this, from 2012, she was a member of the Academic Board and a member of the University’s Higher Degree Research Committee. Professor McLaws explained that the Academic Board advises the Vice-Chancellor and the University Council on matters relating to teaching, scholarship and research and makes decisions as delegated by the Council.

62. Professor McLaws noted that the objects and functions of the University are set out in s 6 of the University of New South Wales Act 1989 (NSW) (University of New South Wales Act). In particular, Professor McLaws pointed to the following object and functions:

6   Object and functions of University

(1)   The object of the University is the promotion, within the limits of the University’s resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence.

(2)   The University has the following principal functions for the promotion of its object:

(a)   …,

…

(c)   the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,

…

(f)   the provision of teaching and learning that engage with advanced knowledge and inquiry,

(g)   …

(3)   The University has other functions as follows:

(a)   …

…,

(c)   the University has such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complement or be incidental to the promotion of the object and interests of the University,

(d)   …

63. Professor McLaws explained that in fulfilling its functions, the University provides undergraduate and postgraduate courses, the latter including Doctoral courses. Students who undertake postgraduate courses involving research are known as ‘higher degree students’ or ‘HDR students’.

64. Professor McLaws said that all HDR students at the University are required to comply with a range of policies and procedures. For students who are undertaking a PhD (known as candidates) there is a University wide policy on the conditions for the award of a PhD., which specifies that only candidates enrolled in accordance with the University’s policies and procedures concerning research will be eligible to proceed to the award of a PhD. Attached to the statement of Professor McLaws was a copy of the University’s 2018 ‘Conditions for Award of Doctor of Philosophy’ and the ‘Higher Degree Research Supervision Procedure’ as at 15 June 2016 and 18 September 2018. Professor McLaws explained that the Conditions for the Award of a PhD and the Supervision Procedures provided that:

1. all research candidates, upon admission to a higher degree research program, must have a supervisory team of at least two supervisors appointed;

2. there are four main categories of supervisor – i.e. primary, secondary, joint and panel supervisors; and

3. the Head of School in which the candidate is located, the School’s Post Graduate Co-ordinator, or the Faculty’s Associate Dean (Research or Research Training) is responsible for recommending the appointment of a candidate’s supervisors to the University’s Dean of Graduate Research, who must approve the supervisory arrangement as well as any changes to supervisory arrangements.

65. Professor McLaws said that the provision of supervision for HDR students is essential to the University being able to perform its functions and objectives and in this regard a supervisor is required to:

1. liaise with other members of the student’s supervisory team to ensure seamless supervision;

2. liaise with the University’s Graduate Research School (GRS) regarding the student’s candidature when students are in need of support for an unfavourable, or unfair Annual Review etc.; and

3. provide formal advice on a candidate’s progress to the relevant Head of School, via the University annual review process.

66. Professor McLaws explained that the GRS provides leadership, support and central administration for all HDR candidates and their supervisors at the University. The University’s Dean of Graduate Research heads the GRS, which works closely with Schools and Faculties to coordinate and manage higher degree admissions, scholarships, candidatures and thesis examinations.

67. Professor McLaws explained that in the ordinary course of managing a candidature, including where there has been a breakdown in the supervisory relationship between a candidate and his/her supervisor, a supervisor will:

22   … [often] consult with other staff of the University in order to seek advice and discuss the best way to respond to a student’s queries and to ensure that the information which is to be communicated to the student is accurate, in accordance with the University’s applicable policies and procedures, expressed in a clear and logical way and communicated sensitively, bearing in mind the stress that can be caused by any changes to the student’s candidature. For that purpose, staff will often provide draft correspondence that is to be sent to the student …

23   In my experience, when a UNSW staff member seeks comments or advice on a daft piece of correspondence that is to be sent to a student, especially in circumstances where there are concerns raised about a student’s progress or behaviour, where a complaint has been made by or against a student, or where there has been a breakdown in the supervisory relationship, the expectation is that any such draft will remain confidential, both from the student and generally. This also applies to where staff seek advice from other units within [the University], such as human resources.

68. Professor McLaws went on to say:

24   In my view, it is essential that any draft pieces of correspondence and requests for advice from units such as human resources, are communicated between staff members on the basis that they are confidential and will not be disclosed to the student by the staff member involved, or by other staff of [the University]. The release of such draft pieces of correspondence or requests for advice to the student involved could in my view make it difficult for [the University] to effectively manage a student’s candidature and ensure that [the University] properly carries out its functions. This is because it would potentially deter staff from providing feedback or advice, or deter them from being open and honest in their feedback or advice, out of fear that they will be potentially victimised by the student involved or reveal any personal health or employment issues of the staff member or other staff.

25   Alternatively, it may lead to all drafts of communications, and other request for assistance in managing a student’s candidature, being sent to [the University’s] Legal Office for advice (for example, to ensure that such communications do not contain any material that is defamatory or misleading). I anticipate this would have the effect of significantly delaying [the University’s] communications with the student, which would not be in the best interest of the student.

69. Professor McLaws explained that, from 10 September 2014 to 26 November 2014, in her role as a member of the Academic Board Higher Degree Committees, she was appointed as a member of the University’s Student Complaints Appeal Committee. Professor McLaws said that she can only recall sitting on one appeal during the time she was a member of that Committee. This was an appeal from a decision of the University in regard to a complaint made by the Applicant on 13 June 2013. The hearing of the appeal occurred on 31 October 2014. Prior to the appeal hearing, she and the other Committee members were provided with a folder of material relating to the Applicant’s appeal. She said she did not retain the material, but handed it to Professor Prem Ramburuth, who was the Chair of the Committee at that time.

70. Professor McLaws said that during the appeal hearing, Professor Ramburuth advised all those present (including the Applicant who appeared by telephone) that the hearing was a confidential process and ‘that what was discussed during the hearing would not be revealed to persons who were not present at the hearing’.

71. Professor McLaws went on to explain that:

32   .. [The] process of the Appeal Committee deliberating over its decision and reviewing and amending drafts of the minutes of the meeting and of the decision letter, were also conducted on the basis that the process was confidential. Drafts were only shared between the minute taker and the Appeal Committee members, and drafts of the decision letter were only shared between the Appeal Committee members (and if necessary, a member of the University’s legal Office, if legal advice was required in a particular case).

72. Attached to Professor McLaws’ statement was a copy of the University’s ‘Student Complaint Procedure’ as it applied from 30 November 2012 to 30 November 2013 and as it applied from 25 July 2017 to 15 August 2017.

73. Professor McLaws said that each Faculty of the University has a Committee known as the Higher Degree Committee (HDC), the general function of which is to meet and take action on matters that are referred to it relating to the candidature of HDR students. This includes considering requests by HDR students to transfer to another program or university. She said that each HDC meets at set times through the year and will be attended by select members of the Faculty and staff members of from the GRS, one of whom is the minute taker. The minutes are circulated amongst the members of the HDC for review and consultation before they are finalised. The outcome of any decisions of the HDC is communicated in writing to the student, but he/she will not receive a copy of the final minutes of the meeting, which are only accessible to selected administrative staff.

Evidence of Ms Grinston

74. As I have explained above, Ms Grinston is the in-house General Counsel and Solicitor of the University. She has held this position since October 2013. In July 1986, Ms Grinston was admitted as a solicitor of the Supreme Court of New South Wales and has been the holder of a current practising certificate since that time which entitles her to practise as a solicitor within New South Wales.

75. In her role as General Counsel and Solicitor, Ms Grinston is the head of the University’s Legal and Compliance Office, which consists of 16 employed solicitors (including her), the Compliance Manager, Compliance Officer and four administrative staff. In her statement and in her evidence, Ms Grinston described the Office as the ‘Legal Office’.

76. Ms Grinston explained that the Legal Office is responsible for providing legal advice to the University and its controlled entities on legal matters affecting the University. The Office also co-ordinates the provision of legal advice from external lawyers to the University, represents the University in legal proceedings and conducts legal negotiations on behalf of the University.

77. Ms Grinston explained that the Legal Office opens and maintains its own files in relation to the matters upon which it provides advice and when such files are opened they are marked as ‘Restricted – Legal – in – Confidence’. Access to these files is restricted to persons who work within the Legal Office, as well as members of the University’s Records and Archives Office for administrative purposes.

78. The employed solicitors who work in the Legal Office include Mr Paul Sheehy, Ms Kim Pettigrew and Ms Alix Cameron. They each hold the title of Legal Counsel and have been a holder of a current practising certificate during their employment with the University, which entitles them to practise as a solicitor within New South Wales.

79. Ms Grinston explained that during the period from 5 June 2014 to 5 February 2018, the Legal Office received requests for legal advice from various legal staff members regarding the Applicant. She said that the legal members of the Legal Office whose advice was sought included herself, Mr Sheehy, Ms Pettigrew and Ms Cameron. Legal members of the Legal Office also sought advice from Ms Brenda Tronson of counsel during this period. Ms Grinston explained that the issues upon which advice was sought included:

1. the discontinuation of the Applicant's PhD candidature;

2. complaints made by the Applicant against various staff members of the University;

3. appeals made by the Applicant against various decisions made by the University;

4. the Applicant’s GIPA Act application and his request for internal review of the University's decisions in regard to that application;

5. the Applicant’s internal review request of conduct of the University under the Privacy and Personal Information Protection Act (NSW) (PPIP Act) (the privacy complaint);

6. the Applicant’s complaint to the NSW Ombudsman concerning the University;

7. the Applicant's applications to and correspondence with the NSW Information and Privacy Commissioner concerning his GIPA applications and privacy (PPIP Act) complaint; and

8. the Applicant’s external review application to the Tribunal in regard to his privacy (PPIP Act) complaint (Tribunal file no 2016/00378509).

80. Ms Grinston said that, in providing advice concerning the abovementioned matters, she acted in her capacity as General Counsel and Solicitor of the University. She went on to say that she had been informed by Mr Sheehy, Ms Pettigrew and Ms Cameron that in providing advice in regard to the abovementioned matters they also acted in their capacity as Legal Counsel of the University.

81. In her statement that is Ex R4, Ms Grinston said that she had reviewed each of the disputed email chains and said she believed they were privileged. Ms Grinston explained that set out in the confidential schedule to her statement was the basis on which each document was privileged. This included whether privilege was claimed on the basis of legal advice or the provision of legal professional services in regard to litigation. It is difficult to understand why this information was not disclosed.

82. [NOT FOR PUBLICATION]

83. In her statement that is Ex R3, Ms Grinston said that the emails comprised the following confidential communications:

1. communications between the legal members of the Legal Office and employees of the University;

2. communications between the legal members of the Legal Office and an external lawyer (including Ms Tronson) acting for the University;

3. communications between legal members of the Legal Office and others (e.g. employees of the University and other persons) who were witnesses or potential witnesses in legal proceedings or anticipated legal proceedings; and

4. documents prepared by the legal members the Legal Office or others (e.g. employees of the University and other persons) for use in legal proceedings.

84. Ms Grinston explained that document 27.07 in the Schedule attached to the University’s second decision was not a single document, but a comprehensive file containing a number of email chains and attachments. For ease of reference, Ms Grinston has given those documents separate item numbers from 27.07 through to 27.166. I note, that item no 27 relates to the following access request of the Applicant: ‘copies of all correspondence and documents of meeting from or to Elizabeth Grinston mentioning my name …’

85. Ms Grinston said that to her knowledge, none of the email chains that are listed in Schedule 3 have been disclosed to anyone outside the university, other than to Ms Tronson, of counsel, and Ms Heesom, solicitor, both of whom had been provided with copies of the emails on a confidential basis.

The University’s Schedules 1, 2 and 3 and Time Line of relevant events

86. Before I deal with the grounds on which the University determined to refuse access to the disputed information, it is necessary for me to make some brief remarks about the Schedules prepared by the University for these proceedings. I have also set out a more detailed time line of events in so far as they relate to the documents in issue.

86. As I have noted, Schedule 1 lists those documents for which access was refused in part on the grounds of the cl 3(a), 3(b) and 3(f) public interest considerations against disclosure in the Table to s 14(2) of the GIPA Act. Schedule 2 lists those documents for which access was refused in part on the grounds of the cl 1(e), 1(f) and 1(g) public interest considerations against disclosure in the Table to s 14(2) of the GIPA Act and Schedule 3 lists those documents for which access was refused in whole on the grounds of legal professional privilege.

87. In each Schedule the documents have been listed in the order of the Item No given to the document in the schedule attached to the University’s second decision (see at [5] above). The descriptions, dates and grounds of refusal for each document are the same as what was contained in the schedule to the second decision. The only difference is that each Schedule only includes the information for which access has been refused on the specific ground to which the Schedule relates. In Schedule 1 and Schedule 2, in some case, there are additional grounds of refusal in regard to the information contained in the document (e.g. out of scope), but nothing turns on this.

88. Navigating the disputed information in the Schedule 2 and Schedule 3 folders has been time consuming because the information is not organised in a chronological, or subject matter order. The number of duplications scattered throughout the folder(s) has also remained the same. Nevertheless, I have carefully examined each of the email chains in these Schedules.

89. From the material before the Tribunal, set out below, is the sequence of events relevant to the information at issue. As some of these events are more clearly identified in the disputed documents, in particular the documents for which there is a claim for privilege, that information is marked: [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION];

2. in July 2013, the Applicant made a complaint under the Student Complaints Procedure – [NOT FOR PUBLICATION]. The Applicant’s complaint was found not to have been sustained and the Applicant appealed this decision to the Student Complaint Appeals Committee (the Committee). The Committee heard the Applicant’s appeal on 31 October 2014. The Applicant was informed, in writing, of the outcome of his appeal on 20 November 2014;

3. on 8 July 2015, Professor Poole-Warren sent a letter to the Applicant to advise him that in the absence of a supervisor, his PhD candidature with the University had been discontinued;

4. [NOT FOR PUBLICATION]

5. on 15 January 2016, the Applicant sent an email to Mr Paul Serov, the University’s Compliance Manager and Privacy Officer and Right to Information Officer. The subject matter of the Applicant’s email was ‘GIPA request’. In his email to Mr Serov, the Applicant included a list of names of University staff members against whom he indicated he had a grievance. One of these staff members was the then Assistant Director, Candidature & Thesis (the Assistant Director). On receipt of the Applicant’s email, Mr Serov forwarded a copy to the Assistant Director;

6. on 5 April 2016, the Applicant submitted a complaint concerning the conduct of Mr Serov in sending his list of names to the Assistant Director. The Applicant submitted his complaint via the University’s Student Complaint Portal. Included in his complaint was a completed Information and Privacy Commission standard form in which the Applicant asserted that Mr Serov’s had breached his privacy. [NOT FOR PUBLICATION]

7. 0n 21 June 2016, the Applicant sent an email to Ms Kimberley Dickinson complaining about the length of time it was taking for his privacy complaint to be dealt with. The Applicant noted that his complaint had not been dealt with within the times prescribed in the Student Complaint Procedures;

8. on 11 July 2016, Mr Magner, on behalf of the University, completed the internal review determination of the Applicant’s privacy complaint. Mr Magner found that there had been no breach, by the University, of an information protection principle under the PPIP Act. Mr Magner’s internal review determination also set out the Applicant’s rights of review. [NOT FOR PUBLICATION].

9. on 6 August 2016, the Applicant lodged a complaint with the office of the NSW Ombudsman concerning the time the University had taken to deal with his privacy complaint. [NOT FOR PUBLICATION];

10. some time after the end of August 2016, the Applicant lodged an application with the Tribunal, under the PPIP Act, seeking external review of the conduct of the University in regard to his privacy complaint;

11. [NOT FOR PUBLICATION].

12. on 28 April 2017, the Applicant lodged a GIPA application with the University seeking access to information that mentioned his name or that identified him in communications by and to Mr Magner during the course of his determination of the Applicant’s privacy complaint. [NOT FOR PUBLICATION];

13. Mr James Fitzgibbon, Director of Governance, was appointed to determine the Applicant’s April 2017 GIPA request. That request was determined on 9 June 2017. The Applicant, being dissatisfied with the decision of Mr Fitzgibbon, sought review of that decision by the Information Commissioner on 13 June 2017.

14. on 15 January 2018, the Tribunal published its decision in regard to the Applicant’s application for external review under the PPIP Act. The Tribunal found that the University had breached s 17 of the PPIP Act and listed the matter for case conference on 6 March 2018 for the purpose of dealing with what action should be taken in regard to that breach: Jackson v The University of New South Wales [2018] NSWCATAD 12. Initially, the name of the Applicant had been anonymised. However, at the request of the Applicant, the anonymisation was removed and replaced with the Applicant’s name;

15. [NOT FOR PUBLICATION].

16. 5 February 2018, the Applicant lodged his application for access that is the subject of this application for review.

17. 27 November 2018, the Tribunal published its decision about what action should be taken in regard to the Applicant’s privacy complaint: Jackson v The University of New South Wales (No 2) [2018] NSWCATAD 271. The Tribunal decided to take no further action.

A: Conclusive presumption against disclosure – client legal privilege

91. Clause 5 of Sch 1 of the GIPA Act provides as follows:

5   Legal professional privilege

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

(2)   If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.

(3)   A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

92. As I have noted, there are 269 email chains for which the University has refused access on the grounds of privilege. These email chains are dated between 13 November 2014 and 20 February 2018.

93. In its written submissions the University noted that: ‘much of the disputed information withheld on the basis of client legal privilege includes copies of correspondence between the applicant and the University’. It was submitted that as this correspondence formed the basis on which legal advice was alleged to have been sought or provided, it is also privileged. Additionally, the University noted that the Applicant had expressly excluded, from his access request, copies of the correspondence he had sent to the staff members named in his access request.

Legal principles

94. In Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543, at [9], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

9   It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. …

95. In Colefax v Department of Education and Communities [2013] NSWADT 72, at [26], Judicial Member Molony (as he then was), determined that, for the purpose determining whether the disclosure of information would fall within cl 5 of Sch 1 of the GIPA Act, this is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 (NSW) (Evidence Act) and not the common law. In this regard, Judicial Member Molony noted the express words used in cl 5(1) of Sch 1 of the GIPA Act (i.e. ‘client legal privilege’ as used in the Evidence Act) and s 131A of that Act which widened the ambit of the privilege in Division 1 of Part 3.10 to preliminary proceedings before courts such as a summons, subpoena, discovery and a notice to produce: cf Mann v Carnell [1999] HCA 66, (1999) 201 CLR 1, at [20].

96. I agree with this analysis, but this does not mean that the provisions of the Evidence Act are a code and the common law legal professional privilege principles and are of no application. In this regard, the courts and Tribunals have continued to have regard to the common law in construing the meaning and operation of words and terms not defined in the Evidence Act.

97. I note that the Tribunal in applying the provisions of the Evidence Act has regularly found that its conclusions in regard to the issue of privilege would have been the same no matter which law applied: Saggers v Environment Protection Authority [2014] NSWCATAD 37, at [26]. I make a similar observation in this application.

98. Section 118 of the Evidence Act is concerned with legal advice privilege and provides:

118   Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)   a confidential communication made between the client and a lawyer, or

(b)   a confidential communication made between 2 or more lawyers acting for the client, or

(c)   the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

99. Section 119 of the Evidence Act deals with litigation privilege and provides:

119   Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)   a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b)   the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional

legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

100. Section 117 of the Evidence Act contains definitions of ‘confidential communication’, ‘confidential document’, ‘client’ and ‘lawyer’ and relevantly provides as follows:

117   Definitions

(1)   In this Division:

client includes the following:

(a)   a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b)   an employee or agent of a client,

(c)   an employer of a lawyer if the employer is:

(i)   the Commonwealth or a State or Territory, or

(ii)   a body established by a law of the Commonwealth or a State or Territory,

(d)   …

confidential communication means a communication made in such circumstances that, when it was made:

(a)   the person who made it, or

(b)   the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a)   the person who prepared it, or

(b)   the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. …

101. It is the client who is entitled to the benefit of the protection of the disclosure of a ‘confidential communication’ arising from his/her lawyer/client relationship. Hence, the onus is on the client to establish that client legal privilege attaches to the communication in issue: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. It is also the client who may relinquish (waive) that entitlement expressly or by implication: Evidence Act, s 122 and Mann v Carnell, at [28] and [29].

102. Client legal professional privilege equally applies to confidential communications between government agencies and their salaried legal officers, provided that there existed, at the time of the confidential communication, a relationship of lawyer and client and the requirements of ss 118 and 119 are otherwise satisfied: Waterford v Commonwealth [1987] HCA 25 (Waterford), (1986)-(1987) 163 CLR 54, at [4], Mason and Wilson JJ where their Honours said:

4   … [Whether], in any particular case, a relationship is such to give rise to the privilege is a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment’.

103. In her written submissions, counsel for the University submitted that when considering client legal privilege under the Evidence Act, it is not necessary that the legal officers employed by a government agency be ‘independent’, so long as they satisfy the s 117(1) definition of ‘lawyer’ (i.e. a person admitted to Australian legal profession: see Evidence Act, Dictionary) and all the elements of ss 118 and 119 are satisfied. I accept that the definition of ‘lawyer’ in s 117(1) does not contain any express reference to the need for independence. However, this does not mean that the above mentioned remarks of Mason and Wilson JJ have no application.

104. In support of its contentions, the University cited the decision of Wigney J in Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098 (Archer); (2013) 306 ALR 384. In that decision, at [69] to [70], his Honour referred to the differing views of Branson J in Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106 at [46] and Katzman J in Dye v Commonwealth Securities Ltd [No 5] [2010] FCA 950 at [15] in regard to a separate or distinct requirement of independence. At [72] and [73], his Honour said:

72   I doubt that much turns on the apparent difference of opinion of Katzmann J in Dye and Branson J in Rich. Whilst Branson J considered that the requirement of independence was separate to the requirement that the communication meet the dominant purpose test, it is difficult to see how the two elements are not inextricably linked. A communication between a lawyer and his or her employer is unlikely to satisfy the dominant purpose test if the lawyer was not employed as a lawyer (that is, the relationship between the lawyer and the employer was not professional) or the lawyer was not consulted in his or her professional capacity as a lawyer (for example, if they were consulted to provide commercial advice, or provide an administrative service, or were consulted as a partner or officer of the firm or company, not as a lawyer). A communication between the lawyer and his or her employer in those circumstances would not be privileged because it would not meet the dominant purpose test, not because the lawyer was not independent. On the other hand, if the relationship between the employer and lawyer was professional (in the sense that he or she was employed as a lawyer) and they were consulted in that professional context to provide legal advice, the resulting communication is likely to satisfy the dominant purpose test. …

73   Were it necessary for me to decide, I would err on the side of concluding that there is no separate requirement of independence in the case of privilege claims where the relevant lawyer is an employed or in-house lawyer. The better view is that any requirement of independence on the part of an in-house lawyer is an aspect of the relationship between the lawyer and the employer (client) and the capacity in which the lawyer is consulted. Legal professional privilege will attach to a confidential communication between an employer and its employed solicitor if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client. …

105. Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged.

106. Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the ‘dominant purpose’ of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.

Dominant purpose

107. The word ‘dominant purpose’ is not defined in the Evidence Act. However, it has been held to mean the ‘ruling, prevailing, or most influential purpose’ that predominates over other purposes and not the ‘primary purpose’ or ‘substantial purpose’ of the client or the lawyer: Archer (supra), at [11].

108. As noted in Archer, the purpose for which a communication (including a document) is brought into existence:

11   … [is] a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [35].

109. However, the existence of legal professional privilege is not established merely by the use of a verbal formula, or by mere assertion that privilege applies to particular communications: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; at [44]. In AWB Limited (No 5), Young J, went on to say:

44   …

(4)   Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424 at 442 [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given. 

145. In Leech v Sydney Water Corporation [2010] NSWADT 298, at [25], the Tribunal held that the test in determining whether a disclosure of the information ‘could reasonably be expected to’ have the stated effect is:

[25]   … [an] objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

146. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [26], the Appeal Panel held that an assessment of the considerations against disclosure as set out in the Table to s 14 require consideration at ‘a broader operational level’ rather than ‘considerations connected with the particulars of the instant situation’: see also Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), at [58], where the Appeal Panel said ‘this requires the Tribunal to engage in a relatively abstract analysis’.

147. The Appeal Panel went on to say that it was appropriate to have regard to the ‘specific aspects of the instant case’ at the next stage of the inquiry when determining where the balance lies between the public interest consideration against disclosure and the public interest consideration in favour of disclosure

148. Ultimately, whether a disclosure of the information ‘could reasonably be expected to’ have the stated effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).

Cl 1 - Responsible and effective government public interest considerations against disclosure

149. The respondent contends that the disclosure of the redacted information in the 77 documents listed in Schedule could reasonably be expected to have one or more of the effects prescribed in cl 1(e), 1(f) and 1(g) of the Table to s 14(2) of the GIPA Act.

150. As noted in the evidence of Professor McLaws, the redated information, in the abovementioned documents (primarily email chains between academic and teaching staff of the University), are drafts of correspondence that were to be sent to the Applicant by the University, draft minutes of meetings between staff members concerning student outcomes and draft minutes of the Student Complaint Appeal Committee that determined the Applicant’s appeal from the University’s decision not to deal with his June 2013 complaint made under the Student Complaints Procedure.

Cl 1(e)–reveal a deliberation or consultation conducted

151. For this public interest consideration against disclosure to apply to the information in issue, the University must establish that a disclosure could reasonably be expected to ‘reveal a deliberation or consultation’ in such a way to ‘prejudice a deliberative process’ of the University.

152. The word ‘reveal’ is defined in cl 1 of Sch 4 of the GIPA Act to mean:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)

153. A ‘deliberative process’ of an agency is its thinking processes: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at [66]. In Re JE Waterford and Department of Treasury (No 2) (1984) 5 ALD 588, at [58] to [61], the Administrative Appeals Tribunal (Cth) (AAT) made the following observations in regard to ‘the deliberative process’ as found in s 36(1) of the Freedom of Information Act (Cth) as follows:

58   As a matter of ordinary English the expression “deliberative processes” appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. “Deliberation” means “The action of deliberating: careful consideration with a view to decision”: see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes — the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. …

59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies.

60   It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure — …

154. ‘Prejudice’ has its ordinary meaning, namely - ‘to cause detriment or disadvantage’ or ‘impede or derogate from’: McLennan v University of New England [2013] NSWADT 113. It is the deliberative process of the agency more generally which must be disadvantaged or impaired by the disclosure of the information in issue: Mullett (supra), at [58].

155. I accept the evidence of Professor McLaws that supervision of its higher degree research students and dealing with complaints by, or against a student is a function of the University falling within its broader statutory functions in s 6 of the University of New South Wales Act.

156. Having carefully examined the redacted information, I am satisfied that this information is a deliberation/consultation amongst relevant staff members of the University in regard to its student supervisory and complaint handling roles and, if disclosed, the information could reasonably be expected to reveal such deliberation.

157. It is the evidence of Professor McLaws that the deliberations/consultations to which the disputed information relates were undertaken in confidence. With the exceptions of the email chains that are document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 I am not persuaded that the remaining email chains were deliberations/consultations undertaken in confidence.

158. The remaining emails chains primarily contain drafts of letters or email responses that were to be sent to the Applicant. As I have noted above, at [45] above, these email chains and responses are identified in Schedule 4 and attached to that Schedule is a copy of the actual (final) letter or email sent (12 in total) to the Applicant.

159. I accept that the email chains containing deliberations/consultations in regard to a draft of a letter or email to be sent to the Applicant were made with the expectation that they would not be subject to public scrutiny as they were internal in nature. I also accept that if such deliberations/consultations were to be made open to public scrutiny staff would be reluctant to be fully open and frank in their deliberation/consultation on these issues. This reluctance, Professor McLaws said, could reasonably be expected to prejudice the deliberative processes of the University in regard to student supervision. I accept this evidence. Accordingly, I am satisfied that a disclosure of the drafts of letters attached or included in the disputed information could reasonably be expected to reveal a deliberation or consultation in such a way as to prejudice the University’s processes in monitoring, supervising and assessing HDR student research

160. In regard to the email chains that are document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06, I find that, given the circumstances in which these communications were made, they were made in confidence: see Diehm v Greater Taree City Council [2010] NSWADT 241 at [53] and Alexander v University of Sydney [2008] NSWADT 214 at [26].

161. The information in these email chains arose under the Student Complaints Procedure, or were made in circumstances that were stated to be confidential or from which confidentiality is inferred.

162. I note that the principles underlying the Student Complaint Procedures expressly state that complaints will be treated sensitively having due regard to procedural fairness and confidentiality. Clause 9 of the Student Complaints Procedure also provides that the complaint handling process is confidential. It has long been accepted that a requirement for confidentiality in the complaint handling function of an agency is essential to facilitate the making and resolving disputes between employees.

163. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. [NOT FOR PUBLICATION]

5. [NOT FOR PUBLICATION]

6. [NOT FOR PUBLICATION]

164. For the reasons set out above, I am satisfied that, if disclosed the deleted information in the email chains that are document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 could reasonably be expected to reveal a deliberation or consultation conducted between University staff members (including academic staff) in such a way as to prejudice the deliberative processes of the University’s student complaint processes and in the monitoring, supervision and assessment of HDR student research.

165. Accordingly, I am satisfied that the University has established that the public interest consideration against disclosure in cl 1(e) of the Table to s 14(2) of the GIPA Act applies to the information deleted in these email chains that are listed in Schedule 2.

166. However, as noted in Camilleri, what weight is to be given to this public interest consideration against disclosure and any other public interest considerations against disclosure will depend on the particular circumstances of the case before the Tribunal.

Cl 1(f) – prejudice the effective exercise of the University’s functions

167. For the reasons set out above, I am satisfied that the University has established this public interest consideration against disclosure in regard to the information in the Schedule 2 documents.

Cl 3 - Individual rights public interest considerations against disclosure

168. The respondent contends that the redacted information in the 83 documents (email chains) listed in Schedule 1 could reasonably be expected to have one or more of the effects prescribed in cl 3(a), 3(b) and 3(f) of the Table to s 14(2) of the GIPA Act.

169. The deleted information in the documents listed in Schedule 1 are small and in most cases the Applicant has been provided with a copy of the remaining information in the document. Again, the University has conveniently marked the deletions with the ground on which access was refused.

170. While the Applicant has indicted he does not press access to this information, for completeness I have dealt with this issue briefly.

Cl 3(a) - reveal an individual’s personal information

171. As I have noted:

1. ‘personal information’ is defined in s 4 of the GIPA Act to mean information or opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: see at [27] above; and

2. ‘reveal’ is defined to mean - to disclose information that has not already been lawfully publicly disclosed .

172. Having examined the deletions in the abovementioned documents, I am satisfied that they are:

1. primarily private mobile telephone numbers or private email addresses of persons other than the Applicant. This is very evident from the information that has been disclosed to the Applicant; and

2. are otherwise personal information or opinion of a person other than the Applicant.

173. I am also satisfied that the deleted information has not been publicly disclosed (i.e. revealed).

174. Accordingly, I am satisfied that the respondent has established this ground of public interest consideration against disclosure.

Cl 3(b) – contravene an information protection principle

175. Section 4(4) of the PPIP Act defines ‘personal information’ in similar terms to that contained in cl 4 of Sch 4 of the GIPA Act.

176. ‘Health information’ is defined in s 6 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) to mean: personal information that is information or an opinion about the physical or mental health of an individual.

177. There is no dispute that the University is a public sector agency for the purpose of these Acts and bound to comply with the information protection principles in the PPIP Act and the HPPs in the HRIP Act: see PPIP Act, ss 20 and 21 and HRIP Act, s 20.

178. The PPIP Act and the HRIP Act each contain a general prohibition on public sector agencies disclosing ‘personal information’ or ‘health information’ of an individual that it holds: see PPIP Act, s 18 and HRIP Act, Sch 1 Health Privacy Principle (HPP) 11. However, there are specific circumstances where an agency is permitted to disclose such information.

179. As the relevant disclosure prohibitions in the PPIP Act and the HRIP Act are similar in terms and effect, it is only necessary to set the relevant section in the PPIP Act which is in the following terms:

18   Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

180. I am satisfied that the redacted information in the abovementioned Schedule 1 documents is personal information of a person other than the Applicant and in some cases, that information includes health information of such persons. I am also satisfied that a disclosure of the redacted personal and health information in the deletions in these documents could reasonably be expected to contravene:

1. the disclosure information protection principle in s 18 of the PPIP Act, or

2. the disclosure HPP 11 in Sch 1 of the HRIP Act

3. because; the disclosure is not directly related to the purpose for which the information was collected, the information is not of a kind that is usually disclosed publicly and there is no evidence of a serious or imminent threat to the life or health of the person concerned or another person.

Cl 3(f) – could the disclosure of the information reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation

181. The University only relies on this public interest consideration against disclosure in regard to the deletions in the file note attached to documents 5.04 and 20.09. It is a public interest consideration against disclosure in addition to those in cl 3(a), 3(b) and 1(g) of the Table to s 14(2) of the GIPA Act.

182. As explained to the Applicant at the hearing, it was not contended that a disclosure of the redacted information in these two documents, if disclosed, could reasonably be expected to expose a person to a risk of harm being perpetrated on him or her by the Applicant. That is, it was no contended that the Applicant posed a risk of harm to himself or another person if the redacted information were to be disclosed. On the contrary, it was contended that a disclosure of the deleted information could reasonably be expected to expose the persons to whom the information relates being exposed to a risk of harm.

183. Having considered the information in issue, I am satisfied that the respondent has established this public interest consideration against disclosure in regard to the deleted information in document 5.04 and 20.09.

Cl 1(g) – disclosure of information provided in confidence

184. Finally, the University contends that, in addition to the cl 3(a) and 3(b) public interest consideration against disclosure, the public interest against disclosure in cl 1(g) of the Table to s 14(2) also applied to the deleted information in document 5.04, 15.107, 15.109. 15.111, 15.126 and 20.9. That is, the University contended that a disclosure of the deleted information in these documents could reasonably be expected to result in the disclosure of information provided to the University in confidence.

185. As I have note above, at [160], the necessary quality of confidence in this public interest consideration against disclosure need not be expressed as such and can be inferred from the nature of the information supplied, the persons who provided the information and the circumstances in which the information was obtained.

186. Having examined the contents of the deletions in document 5.04, 15.107, 15.109. 15.111, 15.126 and 20.9, which is personal and/or health information about a person other than the Applicant, and given the circumstances in which that information was provided, I am satisfied that a disclosure of the information could reasonably be expected to result in the disclosure of information provided to the University in confidence.

Personal factors of the application

187. The information for which the applicant seeks access is largely personal information concerning his PhD candidature, the 2013 complaint he made, the decision of the University to discontinue his candidature in 2015 and his dealing with the University more generally since he left in mid 2013. The Applicant’s motivation in seeking access to the information in issue is so that he can better understand how and why his PhD candidature was discontinued, why the University’s Student Complaints Appeal Committee dismissed his appeal and more generally an understanding why the University had dealt with his many requests in the manner it did so.

188. As I have noted, the Applicant is motivated to press access to the disputed information because he believes it will expose disturbing patterns of administrative misconduct by a number of staff members towards him and other international students.

189. The University concedes that the Applicant’s wish to know what information it holds in regard to him and the discontinuation of his PhD candidature was a matter the Tribunal should take into account in favour of disclosure.

190. However, to the extent the information is personal information about a person other than the Applicant, the University contends that this is a personal factor of the application to be taken into account against the disclosure of that information. I do not think the Applicant disagrees with this.

Where does the balance lie?

191. It is accepted that the balancing exercise ‘is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation’: see Battin v University of New England [2013] NSWADT 73, at [74].

192. I note the general public interest in favour of disclosure of government information.

193. In my view, for the reasons set out above, in this case, different considerations arise in the weighing up of the competing public interests. In my opinion, that difference lies in the nature of the information.

194. In regard to the disputed information that is personal information of a person other than the Applicant (the redacted information in the Schedule 1 documents). I agree with the University that considerable weight should be given to the public interest considerations against the disclosure of this information. On the other hand, because it is personal information of a person other than the Applicant, the public interest considerations in favour of the disclosure should be given little if any weight.

191. Furthermore, the information is not personal information of the Applicant and a disclosure of this information would not facilitate a better understanding of how the University dealt with his PhD candidature and the other issues he has raised. Nor would a disclosure of this information further public scrutiny and transparency of the University’s decision making in regard the supervision and assessment of HDR students (including overseas students) and their research, student complaint handling and the other issues the Applicant raised. Nor has the Applicant pressed access to this information.

192. I make a similar finding in regard to the redactions in document 8.04, 15.84, 15.98, 15.99 and 15.100 listed in Schedule 2 as the information was provided in confidence and includes personal information of persons other than the Applicant and from which the personal information of the Applicant cannot be separated.

193. I also make a similar finding in regard to document 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 listed in Schedule 2 as the information arose in the course of the University exercising its core functions of monitoring, supervising and assessing its HDR students and student complaint handling. Furthermore, on the material before the Tribunal, these functions are impliedly and expressly confidential.

194. In my view, a disclosure of the information in the abovementioned documents would not further public scrutiny and transparency of the University’s decision making in regard the supervision and assessment of HDR students (including overseas students) and their research, student complaint handling and the other issues the Applicant has raised.

195. Accordingly, I am satisfied that, on balance, the public interest considerations against disclosure of the deleted information in the documents listed in Schedule 1 and document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 listed in Schedule 2 outweighs the public interest considerations in favour of disclosure.

196. In regard to the remaining deleted information in the documents listed in Schedule 2, in my view, considerable weight should also be given to the cl 1(e) and 1(f) public interest consideration against the disclosure of that information. However, as the information is primarily personal information about the Applicant concerning his PhD candidature and questions he raised in regard thereto, in my opinion considerable weight should also be given to the public interest considerations in favour of disclosure. In balancing these competing public interests, together with the presumption in favour of disclosure as set out in s 5 of the GIPA Act, in my opinion, on balance, the public interest consideration in favour of disclosure outweighs the public interest consideration against disclosure. In making this finding I have also taken into account the fact that the deliberations and consultation between the University staff members was concluded some time ago, the Applicant has been informed of the outcome of those deliberations and being provided with the deleted information this will assist the Applicant in understanding how these deliberations and consultations were made.

197. Accordingly, I find that the public interest consideration against disclosure of the redacted information in deleted information in document 5.16, 5.32, 5.33, 5.38, 5.56, 5.57, 5.58, 5.59, 5.64, 5.65, 5.66, 5.67, 5.68, 5.74, 703, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.30, 7.31, 7.32, 7.33, 7.35, 7.36, 7.38, 7.39, 7.75, 7.76, 7.106, 7.107, 7.108, 7.109, 7.111, 7.121, 12.28, 15.172, 15.173, 15.195, 18.01, 18.35, 18.36, 22.01,22.02, 22.03, 22.04, 22.05, 22.06, 22.07, 26.01, 26.02, 29.46, 29.47, 29.48, 29.49, 29.50, 31.17 and 31.18 listed in Schedule 2 does not, on balance, outweigh the public interest considerations in favour of disclosure.

Conclusion in regard to the Schedule 1 and Schedule 2 deletions

202. For the reasons set out above, I find that:

1. The decision of the University that there is an overriding public interest against disclosure of the deleted information in the documents listed in Schedule 1 and the deleted information in document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 listed in Schedule 2 is justified.

2. The decision of the University that there is an overriding public interest against disclosure of the deleted information in document 5.16, 5.32, 5.33, 5.38, 5.56, 5.57, 5.58, 5.59, 5.64, 5.65, 5.66, 5.67, 5.68, 5.74, 703, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.30, 7.31, 7.32, 7.33, 7.35, 7.36, 7.38, 7.39, 7.75, 7.76, 7.106, 7.107, 7.108, 7.109, 7.111, 7.121, 12.28, 15.172, 15.173, 15.195, 18.01, 18.35, 18.36, 22.01,22.02, 22.03, 22.04, 22.05, 22.06, 22.07, 26.01, 26.02, 29.46, 29.47, 29.48, 29.49, 29.50, 31.17 and 31.18 listed in Schedule 2 is not justified.

203. Accordingly I find that:

1. the decision of the University in regard to the deleted information in the documents listed in Schedule 1 of the University and the deleted information in document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06A listed in Schedule 2 is the correct and preferred decision and should be affirmed; and

2. the decision of the University in regard to the deleted information in document 5.16, 5.32, 5.33, 5.38, 5.56, 5.57, 5.58, 5.59, 5.64, 5.65, 5.66, 5.67, 5.68, 5.74, 703, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.30, 7.31, 7.32, 7.33, 7.35, 7.36, 7.38, 7.39, 7.75, 7.76, 7.106, 7.107, 7.108, 7.109, 7.111, 7.121, 12.28, 15.172, 15.173, 15.195, 18.01, 18.35, 18.36, 22.01,22.02, 22.03, 22.04, 22.05, 22.06, 22.07, 26.01, 26.02, 29.46, 29.47, 29.48, 29.49, 29.50, 31.17, 31.18, and 32.06 listed in Schedule 2 of the University is not the correct and preferred decision and should be set aside and in substitution thereof a decision that the Applicant be granted access to this information be made.

Out of scope

204. As I noted in my decision of Miskelly v Roads and Maritime Services [2018] NSWCATAD 133 at [97] to [98], it is not unusual when the relevant officer of a government agency is conducting a search of information held by the agency in regard to a specific access request, information is located which on further inspection is found to fall within the terms of the specific access request. As the information was located by the officer of the agency in his/her search pursuant to s 53 of the GIPA Act, the officer will identify the document as having been located but it will be identified as being ‘out of scope’ of the access request.

205. In Miskelly I went on to note, at [103] to [106], a decision of the agency that information is out of scope is not a decision for which the Tribunal has jurisdiction to review. The only decision of an agency over which the Tribunal has jurisdiction to review under the GIPA Act are those prescribed in s 80 of that Act and this does not include a decision that is out of scope.

206. I have nevertheless examined the information for which the University determined it was out of scope and I find that the information either did not relate to the Applicant, or it otherwise fell outside the terms of the Applicant’s access request.

Conclusions

207. For the reasons set out above, at [141], [136] and [203], that the decision of the University should be affirmed in some respects and in other respects be set aside and the Applicant be granted access to some documents listed in Schedule 2 and the remaining documents in Schedule 3 be remitted to the University for reconsideration in accordance with these reasons for decision and the provisions of the GIPA Act. In the event the University refuses access to the remaining documents either in whole or in part, the University s to prepare a schedule of those documents that is in chronological and subject order so that it can be more easily understood.

Orders

208. For the reasons set out above, the Tribunal orders:

1. The decision of the University is affirmed in regard to:

1. the deletions in the list of documents in Schedule 1;

2. the deletions in document 7.104, 7.105, 8.04, 9.12, 9.13, 9.14, 15.84, 15.98, 15.99, 15.100, 15.188, 17.01, 17.02, 31.19, 31.20, 32.05 and 32.06 listed in Schedule 2;

3. document 4.08, 4.13, 4.14, 4.15, 4.16, 4.20, 4.22, 4.23, 4.25, 4.26, 5.69, 5.70, 5.71, 5.72, 5.73, 5.78, 5.79, 5.80, 5.81, 5.82, 5.84, 5.85, 5.86, 5.87, 5.88, 5.89, 5.90, 5.91, 26.28, 27.08, 27.12, 27.14, 27.15, 27.24, 27.25, 27.26, 27.51, 27.52, 27.57, 27.60, 27.61, 27.63, 27.64, 27.65, 27.66, 27.67, 27.72, 27.79, 27.82, 27.83, 27.84, 27.85, 27.86, 27.87, 27.88, 27.89, 27.87, 27.88, 27.89, 27.90, 27.91, 27.92, 27.93, 27.101, 27.107, 27.108, 27.109, 27.110, 27.111, 27.112, 27.113, 27.115, 27.118, 27.119, 27.120, 27.121, 27.122, 27.133, 27.134, 27.150, 27.154, 27.155, 27.156, 27.157, 27.159, 27.163, 29.52, 29.53, 29.54, 29.55, 29.56, 29.57 and 29.58 in Schedule 3; and

4. the documents at Tab 270 of the Schedule 3 documents.

2. The decision of the University in regard to the deletions in document 5.16, 5.32, 5.33, 5.38, 5.56, 5.57, 5.58, 5.59, 5.64, 5.65, 5.66, 5.67, 5.68, 5.74, 703, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.30, 7.31, 7.32, 7.33, 7.35, 7.36, 7.38, 7.39, 7.75, 7.76, 7.106, 7.107, 7.108, 7.109, 7.111, 7.121, 12.28, 15.172, 15.173, 15.195, 18.01, 18.35, 18.36, 22.01,22.02, 22.03, 22.04, 22.05, 22.06, 22.07, 26.01, 26.02, 29.46, 29.47, 29.48, 29.49, 29.50, 31.17, and 31.18 listed in Schedule 2 is set aside and in substitution thereof a decision that the Applicant be granted access to that information is made.

3. Other than the decision in regard to documents referred to in order 1(c) above, the decision of the University in regard to the remaining documents listed in Schedule 3 is set aside and remitted for reconsideration by the University in accordance with these reasons for decision and the provisions of the GIPA Act.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

08 November 2019 - Order (1)(c) amended - "27.68" corrected to "27.67".

Order (2) amended - "32.06" removed.

Respondent's representation corrected. "Heesom Legal" replaced with "Compliance and Legal Office of the University of New South Wales"

26 November 2019 - Correction of typographical error

Decision last updated: 26 November 2019