Macquarie University v Howell

Macquarie University appealed to the NSW Court of Appeal against a decision of the Information and Privacy Commission of NSW (Commission) that upheld a decision by the Information Principal Officer (IPO) that certain documents be released under the Freedom of Information Act 1989 (FOI Act). Howell cross-appealed against the Commission’s finding that certain documents were exempt from release under cl 10 of the FOI Act. The University argued that the Commission erred in finding that the advice privilege did not apply to the documents and that the Commission erred in finding that cl 13 did not apply to the documents. Howell argued that the Commission erred in finding that the advice privilege applied to the documents. The court was required to determine the scope of the advice privilege and whether it applied to documents relating to the conduct of an investigation into a complaint of misconduct. The court was also required to determine whether the Commission misapplied cl 13 of the FOI Act.
The court held that the advice privilege did not apply to the documents as the dominant purpose of the documents was not for the purpose of advice. The court held that the Commission misapplied cl 13 of the FOI Act in that it did not properly apply the requirements of cl 13. The court found that the Commission had erred in finding that cl 13 did not apply to the documents. The court allowed the appeal in part and set aside certain orders of the Commission. The court granted leave to extend the appeal to the merits in respect of all documents the subject of a claim for exemption on the basis of cl 13. The appeal was to be listed for further directions.