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Macquarie University v Howell (No 2)

Macquarie University v Howell (No 2)

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Appeal Panel - Internal

CITATION: Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19

PARTIES:
APPELLANT
Macquarie University
RESPONDENT
Sally Clare Howell

FILE NUMBER: 079027

HEARING DATES: 1 October 2008

SUBMISSIONS CLOSED: 25 September 2008

DATE OF DECISION:
25 March 2009

BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS: Freedom of Information – Confidential Material Exemption – Decision on the Merits – Freedom of Information Act 1989, Schedule 1, cl 13(b)

DECISION UNDER APPEAL: Howell v Macquarie University [2007] NSWADT 95; Howell v Macquarie University (No. 2) [2007] NSWADT 227

FILE NUMBER UNDER APPEAL: 063012

DATE OF DECISION UNDER APPEAL: 09/28/2007

LEGISLATION CITED: Freedom of Information Act 1989
Ombudsman Act 1974

CASES CITED: AB v Dept Human Services [2001] VCAT 2020
Cheney v Sydney West Area Health Service [2008] NSWADTAP 29
Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39
Cianfrano v Director-General, Premiers Department [2007] NSWADT 216
D v National Security for the Prevention of Cruelty to Children [1978] AC 171
JY v Commissioner of Police, NSW Police [2008] NSWADT 306
Keriakes v State Rail Authority of NSW [2003] NSWADT 191
Macquarie University v Howell [2008] NSWADTAP 46
Marke v Victoria Police [2007] VSC 522
McGuinness v Bathurst Regional Council [2005] NSWADT 152
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41
Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30
University of New South Wales v McGuirk [2006] NSWSC 1362
Victoria Police v Marke [2008] VSCA 218
WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84

REPRESENTATION:
APPELLANT
M Allars, counsel / P Dillon, solicitor, Foulsham & Geddes
RESPONDENT
P Howell, solicitor

ORDERS: 1. Appeal allowed as follows.
2. Decision of University in respect of those documents for which a claim to exemption was made under clause 13 affirmed, except for first two pages of documents 32 and 38, and the whole of document 49.

1 This decision is supplementary to our decision of 25 July 2008, i.e. Macquarie University v Howell [2008] NSWADTAP 46. On that occasion we set aside that part of the Tribunal’s decision which reversed the University’s claim that certain documents were exempt within the meaning of cl 13(b) of Schedule 1 to the Freedom of Information Act 1989 (FOI Act). We granted the University’s application for the appeal to be extended to the merits.

2 This is the decision on the merits.

3 There are 28 affected documents numbered 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60, 70 and 80. The public descriptions of these documents as provided by the University in its amended schedule of documents are set out in the Appendix to our earlier decision at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWADTAP 19
Decision Date: 25 March 2009

CaseChat Overview and Summary

In the case of Macquarie University v Howell, the respondent sought access to certain documents under the Freedom of Information Act 1989. The appellant, Macquarie University, argued that some of the documents were exempt from disclosure under the Act, specifically citing the confidential material exemption. The dispute was heard in the Federal Court of Australia, where the respondent sought judicial review of the appellant's decision to deny access to the documents in question.

The primary legal issue before the court was whether the documents in question were exempt from disclosure under clause 13(b) of the Freedom of Information Act. This clause provides an exemption for material that is confidential and would be an unwarranted invasion of personal privacy if disclosed. The court had to determine whether the university's decision to deny access to the documents was lawful and whether the documents indeed contained confidential material warranting exemption.

The court found that the university's decision to exempt the first two pages of documents 32 and 38, and the entirety of document 49, was not supported by the evidence. The court considered the nature of the information contained in these documents and concluded that they did not meet the threshold for exemption under clause 13(b). Consequently, the court allowed the appeal in part, affirming the university's decision to withhold certain documents while ordering the disclosure of the specific pages in question. The decision was made on the basis that the information contained in the specified pages did not constitute confidential material warranting exemption from disclosure under the Act.

The court's final order was that the appeal was allowed in part, with the university's decision to withhold certain documents affirmed, except for the first two pages of documents 32 and 38, and the entirety of document 49, which were ordered to be disclosed. This outcome reflects the court's determination that the university's decision to exempt these specific parts of the documents was not justified under the Freedom of Information Act.

Orders

Orders of the court

1. Appeal allowed as follows. 2. Decision of University in respect of those documents for which a claim to exemption was made under clause 13 affirmed, except for first two pages of documents 32 and 38, and the whole of document 49.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19
PARTIES:	APPELLANT Macquarie University RESPONDENT Sally Clare Howell
FILE NUMBER:	079027
HEARING DATES:	1 October 2008
SUBMISSIONS CLOSED:	25 September 2008
DATE OF DECISION:	25 March 2009
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	Freedom of Information – Confidential Material Exemption – Decision on the Merits – Freedom of Information Act 1989, Schedule 1, cl 13(b)
DECISION UNDER APPEAL:	Howell v Macquarie University [2007] NSWADT 95; Howell v Macquarie University (No. 2) [2007] NSWADT 227
FILE NUMBER UNDER APPEAL:	063012
DATE OF DECISION UNDER APPEAL:	09/28/2007
LEGISLATION CITED:	Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	AB v Dept Human Services [2001] VCAT 2020 Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39 Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 D v National Security for the Prevention of Cruelty to Children [1978] AC 171 JY v Commissioner of Police, NSW Police [2008] NSWADT 306 Keriakes v State Rail Authority of NSW [2003] NSWADT 191 Macquarie University v Howell [2008] NSWADTAP 46 Marke v Victoria Police [2007] VSC 522 McGuinness v Bathurst Regional Council [2005] NSWADT 152 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30 University of New South Wales v McGuirk [2006] NSWSC 1362 Victoria Police v Marke [2008] VSCA 218 WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
REPRESENTATION:	APPELLANT M Allars, counsel / P Dillon, solicitor, Foulsham & Geddes RESPONDENT P Howell, solicitor
ORDERS:	1. Appeal allowed as follows. 2. Decision of University in respect of those documents for which a claim to exemption was made under clause 13 affirmed, except for first two pages of documents 32 and 38, and the whole of document 49.