LALOGIANNI v Australian National University
[2003] FMCA 9
•15 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LALOGIANNI v AUSTRALIAN NATIONAL UNIVERSITY | [2003] FMCA 9 |
| ADMINISTRATIVE LAW – Review of AAT decision – application for access to documents under Freedom of Information Act 1982 (Cth) – whether certain documents were exempt from disclosure – whether the Tribunal was biased in its approach – documents protected by legal professional privilege – whether certain documents were brought into existence for the sole purpose of litigation – distinction between ‘personal information’ and ‘information relating to personal affairs’ – whether advice to a decision maker upon which the decision maker relied in coming to its decision is privileged – whether certain documents passing between solicitor and counsel and client are protected under legal professional privilege – whether a draft affidavit of a probable witness is protected – whether some documents can be edited so the applicant can have access to information relevant to her claim – unreasonable disclosure – the weight given to public interest – whether the applicant shares a ‘common interest privilege’ with the respondent with regard to certain documents that came into existence as a result of the investigation of her allegations. PROCEDURAL FAIRNESS – whether the Tribunal has a discretion to adjourn a hearing – whether the applicant’s case was disadvantaged because of a failure to cross-examine a witness. |
Freedom of Information Act 1982 (Cth), ss. 22, 41, 42
Walsham v Stainton (1863) 2 H & M 1 at 4; 71 ER 357
Grant v Downes (1976) 135 CLR 674
CIA Barca de Panama v George Wimpey & Co [1980] 1 Lloyd’s Rep. 598
Buttes Gas & Oil Co v Hammer (No. 3) [1981] QB 223
Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219
Attorney-General (NT) v Maurice (1986) 69 ALR 31
Waterford v Commonwealth of Australia (1986) 71 ALR 673
Department of Social Security v Dyrenfurth (1988) 80 ALR 533
Bleicher v Australian Capital Territory Health Authority (1990) 96 ALR 732
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
Cachia v Hanes (1994) 120 ALR 385
Jia v Minister for Immigration & Multicultural Affairs (1999) FCR 556
SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668
| Applicant: | MARIA LALOGIANNI |
| Respondent: | AUSTRALIAN NATIONAL UNIVERSITY |
| File No: | CZ 26 of 2001 |
| Delivered on: | 15 January 2003 |
| Delivered at: | Sydney |
| Hearing Date: Last Submissions Received: | 2 October 2002 23 December 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms J Oakley |
| Solicitors for the Respondent: | Australian National University Legal Office |
ORDERS
The decision of the Tribunal is affirmed and the appeal is dismissed in respect of the following documents: ML 1, ML 2, ML 3, ML 14, ML 18.02, ML 19, ML 20, ML 25, ML 26.01, FOI 2.02, FOI 2.04, FOI 2.05, FOI 2.06, FOI 2.07, FOI 2.08, FOI 5, FOI 7, ML 8, ML 10, ML 22.01, ML 23 and ML 24.
The Tribunal’s finding in respect of the following document is set aside and the document shall be made available to the applicant pursuant to the terms of the FOI Act: ML 18.01.
There shall be remitted to the Tribunal for consideration in accordance with law the following documents: ML 26.01, ML 17, ML 21 and ML 22.02.
The following documents have been conceded by the respondent not to be the subject of exemption under ss.41 or 42 of the FOI Act but are claimed to be outside the ambit of the applicant’s request. They are referred back to the Tribunal for a decision in this regard: FOI 2.01, FOI 2.03, FOI 3.01, FOI 3.02, FOI 3.03, FOI 4.01 and FOI 4.02.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CZ 26 of 2001
| MARIA LALOGIANNI |
Applicant
And
| AUSTRALIAN NATIONAL UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
Between 1 December 1995 and November 1998 the applicant was a student in the Faculty of Law at the Australian National University. As such she received instruction from a senior lecturer, one “AB”. In about 1999 the applicant made a complaint to the University authorities in respect of, what she claimed to be, AB’s inappropriate treatment of her, which occurred between the dates previously mentioned.
A committee conducted a preliminary investigation into the complaints and prepared a report dated July 1999 recommending further action. Preparations were made for a hearing into the complaints but they ceased upon the resignation of AB from the respondent’s employ in or about April 2000.
The applicant made several requests for documents pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”). Over a period of time, and as a result of her persistence, the applicant has obtained a considerable number of documents from the University, the respondent in these proceedings. However, the respondent has resisted the production of some documents and its position in this regard was the subject of review by the Administrative Appeals Tribunal which gave its decision on 26 April 2001. The Tribunal concluded that certain of the documents which had not been disclosed should have been disclosed, that parts of some documents should have been disclosed and that certain other documents were considered to be “exempt documents” pursuant to ss.41 and 42 of the FOI Act. The relevant parts of ss.41 and 42 are set out below:
Documents affecting personal privacy
41. (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
Documents subject to legal professional privilege
42. (1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
The applicant appealed against the decision of the Tribunal and her grounds of appeal were contained in a Notice of Appeal but were supplemented by a Notice of Motion dated 10 July 2002. That Notice of Motion contains three general grounds for the setting aside of the application. The first is in the following terms:
“The decision of the AAT be set aside due to bias on the part of the Senior Member and that documents sent to the AAT to support this claim be allowed to be included in the Appeal Book.”
The second is:
“The AAT erred in law in forcing the Applicant to conduct a hearing when she provided them with medical evidence from a specialist that she was not medically fit to participate in any form of litigation and she was in the process of obtaining treatment.”
The third is:
“The AAT erred in law in not allowing the applicant to have AB as a witness.”
It is appropriate that I deal first with these three general grounds before proceeding to deal with each of the documents.
Bias
Although the applicant did not, in her Notice of Motion, distinguish between ostensible bias and actual bias it became plain from her submissions that she was making a claim of actual bias against the Tribunal. The claim arose out of what the applicant described as inappropriate conduct by the Tribunal in asking her questions of a personal nature. It also arose from the existence on the file of an anonymous letter concerning both the Senior Member and the applicant.
A complaint of actual bias is a very serious one to make. In this case it is said to exist on the face of the record as the transcript of the hearing before the Tribunal is contained in the Appeal Book. There is therefore no necessity to produce any other evidence but by the same token the Court will consider the claim on the basis of that evidence alone. Bias in the context of legal proceedings is popularly thought of as a predisposition either favourable or unfavourable towards one party. But that is not how it is defined at law where it is best expressed in the concept of a “closed mind”: see for example Jia v Minister for Immigration & Multicultural Affairs (1999) FCR 556 per RD Nicholson J at [158] and SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J at [38].
In this case the Respondent submits that the transcript reveals that questions were asked by the Tribunal in order to ease the applicant into her evidence. It is to be remembered that the applicant represented herself before the Tribunal and had made it clear to the Tribunal that she was suffering from a depressive illness which made the presentation of her case difficult. The questions complained about are found to commence at [59] of the appeal book and relate to her nationality and migration to Australia, her family and her education.
I find nothing in these questions indicative of bias. They seem to me to be no more than a settling in process in respect of a nervous witness.
I was shown a copy of the letter about which the applicant complains. This is an anonymous letter insulting to both the applicant and to the Tribunal. There is no explanation as to how the letter got onto the file or when it got onto the file. There is no evidence of what influence it might have had on the Tribunal and there is no suggestion that it emanated from the Tribunal itself. In those circumstances I cannot see how a finding of bias can be made against the Tribunal because of the mere existence of such a letter on the file.
The medical evidence
The applicant told me that she had advised the Tribunal that she had a medical certificate saying that she was suffering from clinical depression and should not continue with the proceedings. She told me that the Tribunal member had pointed out to her that the proceedings had been adjourned on other occasions and that he had come up especially from Adelaide for the hearing. He declined to give her an adjournment but he did allow her to have several breaks during the course of the day. Unfortunately the earlier discussion referred to by the applicant is not contained on the transcript and there is no affidavit exhibiting the doctor’s report. However, I am prepared to accept for the purposes of this decision all that the applicant has said. I do not find that the Tribunal proceedings were wrongfully continued by the Tribunal. The Tribunal has a discretion as to whether or not to adjourn a hearing and nothing which the applicant has put to me suggests that that discretion was exercised other than appropriately in all the circumstances. The applicant was able to conduct a thorough case before the Senior Member. At [116] of the appeal book there is a reference by the applicant to her not being able to continue to which the Tribunal responded:
“Well, you know, I have come from interstate all the way to hear this matter and we just cannot sort of pack up and go home and I go back to South Australia and then come back again. So, you know, the case has got to go on and finish or whatever the position is.”
This exchange took place at about 3.15pm on the day of the hearing which then continued for some further time before being adjourned to 8 March 2002. There does not appear to be any further reference by the applicant to her inability to continue.
The evidence of AB and the evidence of Mr Herrick
In addition to the complaint about not being able to call AB there was also a complaint relating to the applicant’s inability to re-examine Mr Herrick, a witness for the respondent. The applicant’s complaint concerning AB seems to be that she was not given an opportunity to cross-examine him. However, what actually occurred was that she appreciated that if she called him as a witness she could not cross-examine him and so initially decided not to call him as a witness. The matter was then taken up again with the Tribunal and the applicant decided to call AB. However, when he arrived she felt that any examination of him would be too traumatic for her and decided not to examine him. Again, I do not believe that this complaint has any merit or any merit that would warrant referring the matter back to the Tribunal for another hearing. In regard to the evidence of Mr Herrick which was raised by the applicant at the hearing, it transpires that the applicant had misunderstood the situation and had thought that she would be entitled to further examine Mr Herrick after he had been re-examined by his counsel. As I understood the position, she withdrew that complaint against the Tribunal.
In the applicant’s grounds of appeal there is a lengthy submission concerning what the applicant believed to be a finding of the Tribunal that the inquiry procedure conducted by the University into the activities of AB prior to the decision to conduct a hearing constituted litigation. The applicant was arguing that many of the documents for which legal professional privilege had been claimed related to the inquiry proceedings. She was of the view that in those circumstances no claim for legal professional privilege existed. It transpired during the course of the hearing before me that the documents for which legal professional privilege was claimed were documents of a class which either sought or provided legal advice to the University. It was therefore not necessary to consider this point.
At the hearing before me I asked the applicant and the respondent to deal with each document in turn. Although a number of documents raised similar points I have concluded that it is probably best to continue with this procedure in this judgment. It is also the way in which the matter was dealt with by the Tribunal.
It is important to note that although the respondent had access to all of the documents, and that I did as well, the applicant did not. She was placed in the difficult position of making representations and submissions about documents which she had never seen, although they had been described to her. She was therefore at somewhat of a disadvantage. I do not believe that having had sight of any of the documents would have provided her with any extra arguments of weight. On the contrary, there may have been a number of documents in respect of which she may have felt obliged to concede.
ML 1
Document ML1 consists of a memorandum of advice from counsel to Mr Herrick of the University’s Legal Office and a draft Notification of Allegations of Serious Misconduct pursuant to Clause 12(b)(i) of the University’s Post Compulsory Academic Conditions Award 1995. This is one of the documents in which the discussion of the claimed s.42 exemption ranged over the meaning of the word “litigation”. In respect of these documents I do not believe that this is a necessary finding to make. A memorandum of advice from counsel to a solicitor and a draft document prepared by counsel proceeding from that advice comes squarely within the category described by the learned author of Cross on Evidence (6th Aust Ed) at [25210] as confidential communication passing between a client and a legal adviser (see also Walsham v Stainton (1863) 2 H & M 1 at 4; 71 ER 357 at 358 as explained by Dawson J in Attorney-General (NT) v Maurice (1986) 69 ALR 31 at 45-46). In this case the legal adviser is counsel. The solicitor is the client’s agent entitled to receive the advice. The applicant argues that the document is not legal advice and also that it relates to an employment matter. The applicant submits that matters relating to the employment of AB are not protected by legal professional privilege. She submits that authority for this proposition can be found in Bleicher v Australian Capital Territory Health Authority (1990) 96 ALR 732 and the decision of the Full Bench of the Federal Court in Department of Social Security v Dyrenfurth (1988) 80 ALR 533. I will discuss these cases further in relation to the applicant’s submission in respect of employment matters not being personal affairs for the purposes of s.41(1) of the FOI Act but at this stage I would only remark that there is nothing in either of those judgments supporting the first submission. It runs completely contrary to the foundations upon which legal professional privilege is based as discussed in cases such as Waterford v Commonwealth of Australia (1986) 71 ALR 673 or Grant v Downes (1976) 135 CLR 674.
The Tribunal, in considering ML1, did turn its mind to whether it was a document which fell within the second limb of Grant v Downes. The Senior Member said at [48]:
“The common law notion of reasonably contemplated litigation therefore, must be considered in the light of Baker v Campbell (1983) 153 CLR 52, such that the scope of litigation is not to be narrowly construed. In The Commonwealth of Australia v Frost (1982) 61 FLR 378, Ellicott J held that the privilege applies to proceedings conducted by a Board of Accident Enquiry. In Waterford v The Commonwealth of Australia (1987) 163 CLR 54, it was held to apply to the proceedings of this very Tribunal, with Dawson J noting (inter alia) at p101:
“… The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. …””
The Tribunal goes on in [49] to consider the particular type of proceedings which were proposed against AB. It found that such proceedings constituted litigation for the purposes of Grant v Downes. I have expressed the opinion that it is not necessary to consider this second limb in relation to these documents and the point was not argued before me, although submissions were filed by the applicant.
ML2
ML2 is a facsimile transmission attaching copies of documents. The facsimile passed between the University Legal Office and Senior Counsel and the enclosures are a number of documents from AB’s personnel file which the Tribunal found were matters of a private nature relating to him. The documents consist of an offer of employment, conditions of employment, the acceptance of employment, an acknowledgment of the acceptance, a letter of re-employment and a letter of promotion. The applicant argues that these are not matters which can form the basis of an exemption under s.41. She claims that this is the approach taken by the Federal Court in cases such as Dyrenfurth (supra) and Bleicher (supra). It is quite clear that those cases do not provide any such blanket exemption. The cases emphasise that where the information was of a public nature then it could not be considered to be of a private nature. Approving the dicta of Beaumont J in Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219 at 221 where His Honour said:
“In my opinion, the reference in the Act to the ‘personal affairs’ of a person was intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual. … ordinarily, information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person’s vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her ‘personal affairs’.”
In Dyrenfurth this quotation was approved with emphasis on the words “ordinarily” and “prima facie at least”.
In 1991 to further the policy of the Privacy Act 1988 (Cth), the concept of “information relating to personal affairs” was removed from the FOI Act and in its place substituted with that of “personal information”. “Personal information” is defined in s.4 of the FOI Act as:
“information or an opinion (including information forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
The term “personal information” is more expansive than that of “information relating to personal affairs”. The reason for making this distinction was set out in a Freedom of Information Memorandum issued by the Commonwealth Attorney-General’s Department at the time the amendments were first made (Freedom of Information Memorandum No 92, 1991, p13):
“The main purpose of the change is to ensure that the privacy exemption is capable of applying to information regarding work performance, capacity or suitability of a person for appointment or promotion….In general ‘personal information’ means any information about an identifiable individual. To fall within the definition it is not sufficient that a document contains a person’s name or bears a person’s signature; the information in the document must say something about the person.”
Hence, what is central to the definition is the person’s identity coupled with the personal nature of the information: see Re Pfizer Pty Ltd v Department of Health, Housing and Community Services (1993) 30 ALD 647 and Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55.
In Re Pfizer, Purvis J referred to the definition of personal information and said at 663:
“it is the identity which is apparent, or can reasonably be ascertained about an individual from the information or opinion that is relevant.”
In short, this case held that it is necessary first to ascertain whether information is “about an individual” before turning to whether the subject’s identity is “apparent or can reasonably be ascertained from the information or opinion.”
This issue was discussed later in Kristoffersen where Kiefel J said at [27]:
“The definition in the current legislation makes clear that it is concerned with information which does identify a person, but the question arises whether more is then required; namely that something be said about them.”
The documents attached to ML2, with the exception of the last, do not deal with AB’s work performance. They deal with his contractual relations with the University. The information contained in this document is clearly information ‘about a person’ and, similarly, the identity of this particular person is ‘apparent or can reasonably be ascertained from the information or opinion.’ In my view the terms on which a person is employed is a matter of a personal information and this finding would extend to the letter offering re-employment even though such re-employment was based on satisfactory work performance.
Consequently, a separate question now arises. That is, whether the disclosure of the information constitutes ‘unreasonable disclosure’ within s.41(1) of the FOI Act (Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111). I take the view that the contents of these documents, whilst they may be very relevant in some circumstances, do not appear to contain any information which is relevant to the applicant’s allegations against AB. This being so, I would uphold the Tribunal’s decision not to release the documents on the basis that they are exempt under s.41(1) of the FOI Act.
ML 3
Document ML3 is a memorandum from Mr Herrick of the University Legal Office to the Deputy Vice Chancellor. Attached to the document is a copy of the draft letter which formed the annexure to ML1. The document has holograph amendments upon it. The Tribunal’s decision was that the memorandum and enclosure came into existence for the purposes of obtaining advice alone, although it added:
“and with reasonably contemplated litigation on foot.”
I find that the memorandum is a letter of advice and that for the reasons given in relation to ML1 the document attached similarly constitutes advice.
The applicant submits that the advice should not be privileged from production because it was advice to a decision maker upon which the decision maker relied in reaching its decision. (Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770). I think that the applicant has misunderstood the ratio of that decision. The advice received by the ANU consisted of a draft letter to show cause. Although it was intended that a committee would consider whether or not to lay formal charges under the award as a result of the response to that letter, the letter itself did not constitute a form of advice upon which the committee could or would rely in coming to its eventual decision. Additionally in the Australian Unity Health case the applicant was the person in respect of whom the decision was made. In this case although the applicant has a very strong interest in the decision she is not the person directly affected by it. That person is AB.
ML 14
ML14 is described by the Tribunal as being the reply by Senior Counsel to the requests made in ML11. I think it would be more accurate to describe the documents as a request by a solicitor to counsel for advice upon the draft of an internal memorandum and certain letters. That advice is provided in the nature of holograph amendments to those documents. I am satisfied that these documents consist of the provision of legal advice and are competently exempt pursuant to s.42 of the FOI Act.
ML 18
ML 18 consists of two file notes one being an internal memorandum of the University Legal Office and the second is what appears to be a telephone attendance note under the heading “Clayton Utz”. The first document is signed, possibly by Mr Herrick. The memorandum is innocuous. It refers to an apparently lost document. It does not provide legal advice. In those circumstances it raises the question of whether it was brought into existence for the dominant purpose of legal proceedings. Having read the document it is difficult to see that it was. I would set aside the Tribunal’s decision on this document.
The second document is a note of a conversation between Mr Herrick and someone at Clayton Utz. It appears to me to be a note of an explanation why Mr Herrick was seeking legal advice from this firm and as such would, to my mind, be privileged under s.42.
ML 19
This document is a memorandum from Mr Herrick to Professor Richards. It appears from the face of the document to be advice by a solicitor of the purest nature. I do not accept the applicant’s submission that it relates to employment or that it is not legal advice and relates to administrative matters.
ML 20
ML 20 consists of a facsimile from Clayton Utz to Mr Herrick and a number of drafts which he wished to have prepared. The Tribunal came to the view that it was satisfied that all of the documents in ML 20 constituted communications between solicitor and client, or solicitor and external solicitor for the purposes of the respondent obtaining legal advice. My notes indicate that the applicant did not dispute this (other than in a general way in relation to her claim for common interest privilege which will be discussed below). I would not disturb the finding of the Tribunal.
ML 25
This is a copy of ML 19.
ML 26
This consists of a facsimile from Mr Herrick to Clayton Utz attaching a file note of a copy of a letter to AB and seeking advice upon it. The Tribunal said:
“It is clear from the cover sheet that the intention of the fax was to seek legal advice on the respondent’s behalf. The Tribunal is therefore satisfied and so finds that the documents comprising ML 26 are exempt pursuant to s.42 of the Act.”
I accept that the file note and the facsimile itself are documents to which s.42 would apply. However, I am not so sanguine about the letter. This consists of the letter addressed to AB by the Deputy Vice Chancellor that was the subject of legal professional privilege in its draft form. It seems to me that the Tribunal did not consider that document, nor make any determination upon it. I believe that it would be necessary for the Tribunal to do so.
FOI 1
The respondent has withdrawn its claim for legal professional privilege in relation to this document but says that it is outside the ambit of the applicant’s request. The ambit of the applicant’s request was not a matter to which the appeal was addressed. The provision of this document must therefore be decided between the applicant and the respondent subject to the usual appeal rights.
FOI 2
The respondent has conceded that page one of this document is not the subject of legal professional privilege and states that it is not within the ambit of the request. In respect of page one the same position arises as in relation to FOI 1.
FOI 2.02 is a brief to Junior Counsel to advise which is clearly privileged. FOI 2.03 is a copy of FOI 1 and the same remarks apply to it. Document FOI 2.04 is a memorandum of advice from Mr Herrick to the Vice Chancellor and is covered by s.42 as is FOI 2.05 which consists of counsel’s opinion. FOI 2.06 is a memorandum of advice from Mr Herrick to the Vice Chancellor attaching and summarising that opinion. FOI 2.07 consists of a fax cover sheet from counsel attaching the advice and FOI 2.08 is another copy of the advice. I believe all of these documents are covered by legal professional privilege and are therefore exempt under s.42.
FOI 3
FOI 3.01 is another copy of FOI 1. FOI 3.02 is an e-mail from Mr Hadely mentioned in FOI 3.01 and I believe is equally accessible under the FOI Act. FOI 3.03 is another memorandum from Mr Herrick to IT Services which would fall within the categories described above.
FOI 5
This is another brief to advise. I do not accept the applicant’s submission that it deals with AB’s employment and is therefore exempt.
FOI 6
FOI 6 is a memorandum of fees which the respondent accepts is not exempt.
FOI 7
FOI 7 is a draft affidavit in support of an application for a restraining order. The document was prepared by AB with the ANU solicitors. AB wished the ANU solicitors to obtain a restraining order against the applicant. He could have obtained a restraining order himself in his own name but he sought to do it in the University’s name. He was therefore not a party to the proceedings, he was a witness to the proceedings. Normally a statement of a witness prepared for the purposes of legal proceedings would be privileged as a document prepared for the dominant purpose of legal proceedings. Obviously if the statement went into the public record it would no longer be privileged. This statement was prepared for proposed legal proceedings which never eventuated. The University decided not to proceed. The document was claimed to be exempt from production on the grounds that it relates to the private concerns of AB and was not connected to his then capacity as an employee of the respondent. The Tribunal came to the conclusion that:
“There is a greater public interest in keeping such personal information private in the whole of the surrounding circumstances. Disclosure of the information in FOI 7 could have potentially detrimental consequences for AB. It is not unreasonable that information of such a private nature should be exempted from disclosure taking into account the broader facts surrounding these proceedings, AB’s interest and the objections to disclosure and the public interest considerations. On balance therefore the Tribunal is satisfied that document FOI 7 should be exempt, pursuant to s.41 of the Act and so finds.”
It is my view that the finding of the Tribunal in relation to this matter was a finding that was open to it on the facts. The Tribunal did not come to its conclusion by asking itself the wrong question or taking into account irrelevant material or failing to take into account relevant material.
The applicant claims that the Tribunal erred by not taking into account the provisions of s.41(2) which states:
“41(2) Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matters relating to that person.”
The purpose of that provision is to prevent the exclusion of a document on the grounds that it contains personal matter when the personal matter referred to relates directly to the person requesting sight of the document. In this case the Tribunal has come to the view that the document relates to the personal affairs of AB, not those of the applicant. I would not disturb the finding of the Tribunal.
ML 8
This document is described by the Tribunal as:
“a letter from AB to Professor Richards which discusses matters that the Tribunal considers to be of a private nature …. The Tribunal considers that the release of that letter may adversely impact upon AB’s private affairs. Accordingly the Tribunal finds that it is not unreasonable to exempt ML 8 pursuant to s.41 of the Act as exemption is not contrary to the public interest and that letter concerns the private concerns of an individual third party who has taken objection to its release.”
The applicant maintains that s.22 of the FOI Act which allows for editing of documents by deletion of irrelevant material should apply. She qualified that statement by limiting it to “allegations against me”. The document is a “without prejudice” letter making a proposal. It does not mention the applicant. It has not been suggested by the applicant that the Tribunal came to its decision in error of law, only that the decision is wrong. I am unable to see any error of law and therefore to accede to the applicant’s request.
ML 10
ML 10 is a file note made by Professor Richards concerning a telephone conversation with AB. It predates the letter of 2 March and appears to be referred to in ML 8. The Tribunal came to the same conclusions about the private nature of that document as it did about ML 8 and for the reasons which I have previously expressed I would not upset the Tribunal’s conclusions.
ML 17
ML 17 is another letter from AB to Professor Richards following upon the last two letters. The Tribunal gives reasons why it believes that it should be exempt under s.41. The applicant says that the Tribunal committed an error of law in determining that the avoidance of embarrassment and possible detriment were factors to be taken into consideration under s.41. She stated that the Tribunal should indicate the detriment to the public interest in the release of such documents.
I think there is merit in the applicant’s submission. Section 41 deals with the unreasonable disclosure of personal information. It is there to prevent personal information about people, which there is no public interest in revealing, from being made public in response to an FOI request. If the writer of a letter makes a proposal which may later be embarrassing to him he is not, to my mind, imparting personal information. I believe that the Tribunal was in error in the manner in which the Tribunal interpreted the contents of this letter in the light of s.41 and I would remit to the Tribunal the decision in relation this document for decision in accordance with law.
ML 21
ML 21 is a copy of ML 17 and the same provisions apply.
ML 24
The Tribunal’s decision in relation to this document was that:
“It contains information that is unrelated to any public interest in disclosure, and the Tribunal finds that it falls squarely into the category of being personal information to a third party namely AB.”
The applicant argued that this decision was wrong in law because the Tribunal did not discuss the second component of s.41 – why it was not in the public interest to release the document. It is my view that the Tribunal did consider the reasonability of disclosure and found against it when it found that the information was unrelated to any public interest in disclosure. I do not believe that the Tribunal erred in law and therefore the decision must stand.
ML 22
ML 22 contains two documents that were exempt from release. The first is a facsimile memo between Mr Herrick and Messrs Clayton Utz which on its face appears to be requesting legal advice and would to my mind be exempt under s.42. The other document is a copy of the letter ML 17 upon which I have already made my views known.
FOI 4
The respondent has conceded that FOI 4.01 is not exempt under s.42 but says that it is outside the scope of the request. FOI 4.02 is the same as document FOI 1.
ML 23
Certain parts of this document have been released. That part of the document which was exempt from release was exempt on the basis:
“That it contains information that is personal to a third party, and in relation to which, disclosure would be unreasonable.”
The applicant contends that the Tribunal did not take into account the public interest in coming to that conclusion. I believe that the decision makes it clear that the Tribunal did that and in those circumstances the decision of the Tribunal was not one made incorrectly in law and cannot be impugned.
Common interest privilege
The applicant has made a claim that she shares a common interest privilege with the respondent in respect of documents which came into existence as a result of her complaints about AB and the University’s decision to make enquiries into those complaints. Common interest privilege is described by Lord Denning MR in Buttes Gas & Oil Co v Hammer (No.3) [1981] QB 223 at 243 as a privilege in aid of anticipated litigation in which several person have a common interest. In its most common manifestation it is the shared interest between insurer and insured in relation to proceedings upon a claim. Another example is that of partners in an enterprise. What is important is that there must be a shared interest in the advice sought or the litigation contemplated. If common interest privilege is held to exist then one party to that privilege cannot waive it to the disadvantage of the other. The applicant argues that one party is also unable to raise against another with whom it shares common interest privilege, privilege from production of documents to that other party (CIA Barca de Panama v George Wimpey & Co [1980] 1 Lloyd’s Rep. 598). If the applicant is correct in her argument that she shares common interest privilege with the University in respect of these matters then none of the documents for which privilege is claimed under s.42 would be exempt.
I do not accept that the applicant shares with the University the type of common interest that would create a common interest privilege. The University is an educational establishment responsible for the welfare of many thousands of students as well as its staff. It has an interest in the type of complaint which the applicant made. It also had duties to investigate that complaint and to make decisions in relation to it. The applicant did not have those duties. The applicant sought remedies personal to herself. She sought those remedies, at least in part, from the University. This is not the same situation as a subrogated insurer and its insured who would be seeking the same remedies against a tortfeasor whose actions had required the insurer to meet a claim under the policy. It is not the same as the situation in a partnership in which all partners have, so far as the outside world is concerned, similar rights and duties. The resort to common interest privilege by the applicant is misconceived.
Orders
I would make the following orders:
(1)The decision of the Tribunal is affirmed and the appeal is dismissed in respect of the following documents: ML 1, ML 2, ML 3, ML 14, ML 18.02, ML 19, ML 20, ML 25, ML 26.01, FOI 2.02, FOI 2.04, FOI 2.05, FOI 2.06, FOI 2.07, FOI 2.08, FOI 5, FOI 7, ML 8, ML 10, ML 22.01, ML 23 and ML 24.
(2)The Tribunal’s finding in respect of the following document is set aside and the document shall be made available to the applicant pursuant to the terms of the FOI Act: ML 18.01.
(3)There shall be remitted to the Tribunal for consideration in accordance with law the following documents: ML 26.01, ML 17, ML 21 and ML 22.02.
(4)The following documents have been conceded by the respondent not to be the subject of exemption under ss 41 or 42 of the FOI Act but are claimed to be outside the ambit of the applicant’s request. They are referred back to the Tribunal for a decision in this regard: FOI 2.01, FOI 2.03, FOI 3.01, FOI 3.02, FOI 3.03, FOI 4.01 and FOI 4.02.
The applicant has been partially successful in her appeal. She is self-represented and is therefore not entitled to costs (Cachia v Hanes (1994) 120 ALR 385). In the circumstances the most appropriate decision on costs is that no order for costs should be made.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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