McGuirk v University of New South Wales

[2005] NSWADT 113

Set aside by Appeal: Set Aside by Appeal on 8/12/06: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362

CITATION:	McGuirk v University of New South Wales [2005] NSWADT 113
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	043295, 043398
HEARING DATES:	13/04/2005-14/04/2005
SUBMISSIONS CLOSED:	05/14/2005
DATE OF DECISION:	05/23/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - personal affairs - access to documents - protected disclosures - access to documents - substantial and unreasonable diversion of agency's resources - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - personal affairs - Freedom of Information Act - access to documents - protected disclosures - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSW ADTAP 28 Robinson -v- Director General, Department of Health [2002] NSWADT 222 Young v Wicks (1986) 13 FCR
REPRESENTATION:	APPLICANT In person RESPONDENT A Mullen, solicitor
ORDERS:	1. The reviewable decisions are set aside; 2. The applicant is to be given a copy of each of those documents that fall within the scope of the applications. It is sufficient satisfaction of this order if the documents are provided in a printable electronic form; 3. Of the documents sought, the material identified in Schedule 1 to these reasons falls outside the scope of the application; 4. These matters are to be listed for further directions in relation to the issue of whether a report under Section 58 of the FOI Act ought to be made.

1 In late 2001 several individuals approached the University of New South Wales with a plethora of allegations against Professor Bruce Hall. Amongst these complaints were allegations that Professor Hall was guilty of mismanagement, scientific misconduct, scientific fraud and workplace bullying. Since then, the University has conducted a series of internal inquiries into the allegations and ordered an independent investigation, chaired by the former High Court chief justice Sir Gerard Brennan (“the Brennan inquiry”). In response to a resolution of the University Council, Mr Hungerford QC was engaged to advise whether all matters raised by the complainants had been addressed. The matter has also attracted considerable attention throughout the scientific and academic communities and has also received considerable media exposure.

2 Reports have been produced as a result of each of the enquiries. Mr McGuirk has applied to the University under the Freedom of Information Act 1989 (“the FOI Act”), seeking to obtain unedited copies of several of those reports. He does not seek to obtain any personal information such as addresses and contact details that might be contained in the documents. He made two applications. The first application sought access to the following reports:

(a) Report of Professor McLachlan dated 15 April 2002 (“ the McLachlan Report ”);

(b) Report of Professor Ingleson dated 15 April 2002 (“the Ingleson Report”);

(c) Report of Professor Niland dated 17 April 2002 (“the Niland Report”);

(d) Report of Professor Deane dated 17 March 2003 (“the Deane Report”);

(e) Report of Deputy Vice-Chancellor Wainwright dated 20 November 2003 (“the Wainwright Report”); and

(f) Report of Vice-Chancellor Hume 23 December 2003 (“the Hume Report”).

3 Mr McGuirk's second application sought access to the following reports:

(g) Report of Professor Dowton dated 3 April 2002 (“ the Dowton Report ”); and

(h) Report of Mr Hungerford QC dated 9 June 2004 (“the Hungerford Report”).

4 The University provided Mr McGuirk with copies of the Niland Report and the Hume Report. Mr McGuirk has also obtained a copy of the report produced as a result of the Brennan inquiry from another source. The University declined to provide Mr McGuirk with copies of the remaining reports and asserts that they are exempt from production under various provisions of the FOI Act.

5 Edited copies of the McLachlan Report, the Ingleson Report, the Deane Report, the Wainwright Report, the Dowton Report and the Hungerford Report have been posted on the University’s website. It is not in dispute that the edited reports are published in a format that cannot be searched and cannot be easily printed.

6 The Brennan inquiry Report and Professor Hall's Response are posted on the University’s website and are available for inspection at the University.

7 In these reasons the various reports that are the subject of the applications are collectively referred to as “the Reports”. The complaints are collectively referred to as “the complaints”. I have been provided with copies of the Reports in both original and de-identified forms. At the invitation of the parties I have also viewed the de-identified reports posted on the University’s website.

8 Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document if it is an exempt document. The University contends that the reports that Mr McGuirk seeks are exempt because:

(a) each of the Reports is an “exempt document” pursuant to clause 20(1)(d) of Schedule 1 to the FOI Act as their disclosure would disclose a matter relating to a protected disclosure under the Protected Disclosures Act 1994;

(b) each of the Reports is an “exempt document” pursuant to clause 13(a) of Schedule 1 to the FOI Act because the Reports contain confidential material given to the University in confidence;

(c) each of the Reports is an “exempt document” pursuant to clause 16 of Schedule 1 to the FOI Act because disclosure of the Reports would have a substantial adverse effect on the management or assessment of the University’s personnel and on the conduct of its industrial relations;

(d) each of the Reports is an “exempt document” pursuant to clause 9 of Schedule 1 to the FOI Act because each of the Reports was produced for the purpose of and in the course of the University’s decision-making functions and its deliberative processes; and

(e) each of the Reports is an “exempt document” pursuant to clause 6 of Schedule 1 to the FOI Act because disclosure would involve the unreasonable disclosure of information concerning the personal affairs of persons referred to in the Reports.

9 The University further asserts that disclosure of the Reports would, on balance, be contrary to the public interest.

10 Mr McGuirk has sought a review of the University's determinations. Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the University.

Protected disclosures

11 Under Clause 20(d) to Schedule 1 of the FOI Act a document is an exempt document if it contains matter the disclosure of which would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994.

12 A disclosure must meet certain requirements if it is to be regarded as a "protected disclosure" under the Protected Disclosures Act 1994. Firstly, under section 8, the disclosure "must be made by a public official” as defined in the Protected Disclosures Act. Under section 4 a public official includes "a person employed under the Public Sector Management Act 1988."

13 Further, the disclosure must be made to an investigating authority; the principal officer of a public authority or investigating authority or officer who constitutes a public authority; another officer of the public authority or investigating authority to which the public official belongs; or an officer of the public authority or investigating authority to which the disclosure relates. Under section 9 a disclosure must be made voluntarily.

14 The Protected Disclosures Act 1994 intends that the identity of individuals who make protected disclosures should remain confidential. Further, any information that could lead a person to ascertain the identity of the complainant should not be disclosed.

15 In order to determine whether or not the Reports contain matter relating to a protected disclosure it is first necessary that I determine whether or not any or all of the complaints constitute a protected disclosure: Robinson -v- Director General, Department of Health [2002] NSWADT 222. The onus of establishing this lies on the University.

16 The University contends that each of the complaints is subject to the protection of the Protected Disclosures Act 1994. The University’s evidence in relation to the issue is limited to the report of Professor Ingleson dated 15 April 2002 which indicates that the complaints were treated as protected disclosures. The University adopted this approach notwithstanding the acknowledgement that at least one of the complainants did not seek the protection of the Protected Disclosures Act 1994.

17 The University presented no other evidence in relation to the original complaints in order to establish that they were lodged as protected disclosures, or to establish whether or not subsequent events had altered the status of the disclosures.

18 A document that appears to be a complaint from one of the complainants is in the material provided to the Tribunal. That document is contained within an annexure to the Hungerford report. It is expressed to be lodged as a protected disclosure however there is no evidence at all to establish the authenticity or status of this document or even if it is in fact one of the complaints in issue. Mr Mullen, the University’s solicitor, did not address this issue other than by reference to Professor Ingleson’s report. In my view this is insufficient to satisfy the burden on the University to establish that this or any other document is a protected disclosure.

19 Material before the Tribunal indicates that the identities of the complainants have been made public. This has occurred both by way of posting of material on the University’s website and by the media exposure apparently sought by some of the complainants themselves. It is conceivable that as part of this process the complainants might have waived any right to protection under the Protected Disclosures Act 1994, however there is no evidence from which that inference could be drawn.

20 I specifically raised the issue of my need to be satisfied that the complaints are protected disclosures at the hearing to allow the University to address it however it failed to do so in any satisfactory manner. In my view the mere fact that the University treated the complaints as protected disclosures does not establish that they were in fact protected disclosures. After considering the material before me I find that there is insufficient basis for concluding that the complaints are protected disclosures. The burden of establishing this lies with the University. The University has not satisfied that burden.

21 As I cannot be satisfied that the complaints are protected disclosures, I cannot be satisfied that the Reports are exempt from production under clause 20(1)(d) of Schedule 1 to the FOI Act.

22 Mr McGuirk asserts that if the Protected Disclosures Act 1994 in fact protects the complainants and the University has not been released from its obligations to them, another issue arises. If, as the material before the Tribunal suggests, the University has posted the names of all the complainants on its website, there must be cause for concern that the University has acted in breach of its obligations under the Protected Disclosures Act 1994. This, however, is not an issue for determination by this Tribunal.

Confidential material given in confidence

23 The University contends that each of the Reports is an exempt document pursuant to clause 13(a) of Schedule 1 to the FOI Act because the Reports contain confidential material given to the University in confidence. It further contends that to disclose the information in the Reports would expose the University to an action for breach of confidence and that disclosure would, on balance, be contrary to the public interest.

24 In my view there is no merit in this proposition. Despite the University bearing the burden of proof, it has failed to present evidence to support this assertion. There is no evidence at all to show that the University made explicit promises of confidentiality. Nor is there any explanation by the University for its failure to provide such evidence.

25 In light of the material that has already been published by the University and that which is otherwise publicly available, the evidence proffered by the University falls well short of the standard necessary to satisfy the burden placed on it to establish that publication of the Reports would expose the University to an action for breach of confidence.

26 The Tribunal is obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment: Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSW ADTAP 28. The question is always whether the material, statements of opinion and submissions put forward by an agency justifies reliance on the exemption. In my view, the University’s reliance on this exemption is misconceived and its assertion has done it no credit.

27 In the circumstances I need not consider whether the protection afforded by section 64 of the FOI Act has any application in relation to this asserted exemption.

Adverse effect on the conduct of industrial relations.

28 The University contends that each of the Reports is an “exempt document” pursuant to clause 16 of Schedule 1 to the FOI Act because their disclosure would have a substantial adverse effect on the management or assessment by the University of its personnel and on the conduct of industrial relations by the University.

29 The Reports contain opinions on matters concerning the work performance of Professor Hall, the complainants and other employees. The University asserts that their disclosure will encourage speculative discussion concerning the personal affairs of individuals, which may cause professional or personal harm to the individuals concerned. It argues that it would have substantial adverse effect on the industrial relations of the University - it would undermine confidence of University employees in the disciplinary processes of the University and it would create reluctance in employees to provide statements in future and impact detrimentally on staff morale. For the same reasons, it is submitted, disclosure of the Reports would, on balance, be contrary to the public interest.

30 In contrast, Mr McGuirk asserts that in its disciplinary process the University has an obligation to act in accordance with the applicable Enterprise Agreement. He argues strongly that the University has acted in clear conflict with the provisions of that Enterprise Agreement. He argues that the complainants have not been given the same opportunity that Professor Hall was given to respond to allegations made against them and that the University has adopted an obstinate approach in these proceedings to justify what amounts to a clear abuse of process.

31 He also points to material that suggests that each of the complainants has asserted that the University has failed to protect them from retribution. He argues that the detrimental actions already suffered by the complainants far exceeds any additional detriment that they may suffer in the short term as a result of the publication of the allegations made against them. He contends that the release of the Reports would reveal the processes that the University has adopted and that this is clearly in the public interest.

32 I agree with Mr McGuirk’s arguments. I consider that the University’s contentions are misconceived. I do not agree with its assessment of the implications for the management of its personnel and on the conduct of its industrial relations that would follow publication.

33 There can be no doubt that the Reports contain opinions on the work performance of a number of employees however in my opinion speculative discussion is far more likely as a result of the publication of the Reports in a de-identified form than from releasing the complete documents. Similarly, unless the publication reveals defects in the processes that the University has adopted, the failure to disclose the documents is more likely to undermine confidence in the disciplinary processes than would their publication. In the absence of transparency it is conceivable that the University employees might conclude that the disciplinary processes are flawed. If that were the case, employees would almost certainly be reluctant to provide statements in future.

34 In my view, the future conduct of industrial relations by the University would in fact be enhanced, rather than affected adversely, by disclosure of the Reports. It would remove any opportunity for speculation as to their contents and would reveal the integrity or otherwise of the processes adopted by the University. This would also provide a level of transparency that is in accordance with the objectives of the FOI Act. Accordingly I do not agree that disclosure of the Reports would, on balance, be contrary to the public interest.

Documents produced in the University’s decision-making functions

35 The University contends that each of the Reports is an exempt document pursuant to clause 9 of Schedule 1 to the FOI Act because each of the Reports was produced for the purpose of and in the course of the University’s decision-making functions and its deliberative processes. Without doubt the Reports contain opinions and recommendations in relation to the complaints against Professor Hall. The University says that they represent the processes engaged in by the University and that the creation of the Reports was necessary only for the internal operations of the University. For the same reasons, it is submitted, disclosure of the Reports would, on balance, be contrary to the public interest.

36 While there is no specific evidence on the issue I am satisfied that it is probable that the Reports was produced for the purpose of and in the course of the University’s decision-making functions and its deliberative processes. Nevertheless, a document is an exempt document under clause 9 only if its disclosure would be contrary to the public interest. My views with respect to the public interest issues have been set out above. I will not repeat them here. Suffice to say that I do not agree that disclosure of the Reports would, on balance, be contrary to the public interest.

Personal affairs

37 The University contends that each of the Reports is an “exempt document” pursuant to clause 6 of Schedule 1 to the FOI Act because each contains matter, the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of persons referred to in the Reports.

38 I note that Mr McGuirk does not seek to obtain any personal information such as addresses and contact details that might be contained in the documents.

39 Various authorities have considered the meaning of the term "personal affairs". While the term is inherently imprecise it has been generally interpreted to mean "matters of private concern to an individual”: Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J.

40 In Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR 606 (“Perrins case”) Kirby P stated at page 625:

'In its context, the words "personal affairs" mean the composite collections of activities personal to the individual concerned.'

41 Whether a document contains information concerning the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act.

42 In the present matter I have examined each of the documents in issue and undertaken a comparison of the original Reports and those in a de-identified form. Having done so I have formed the opinion that parts of some of the reports in fact contain material that would be outside the scope of Mr McGuirk’s applications in that they contain personal information such as addresses and contact details. I note that the University has mostly, but not invariably, excluded this information from the de-identified form of the Reports that have been published.

43 In my view, this information is personal information for the purpose of clause 6 of Schedule 1 of the FOI Act; however, as it falls outside the scope of Mr McGuirk’s applications I need not consider whether its disclosure is unreasonable. Accordingly it is my view that this information should not be disclosed. The information that falls within this category is set out at Schedule 1 to these reasons.

44 I note that notwithstanding my view that certain information set out in Annexure G to the Wainwright Report is outside the scope of McGuirk’s applications, that material has been posted on the University’s website in a readable form. The University may consider it prudent to address that issue however I have no jurisdiction to order it to do so.

45 The remainder of the information that the University has asserted to be exempt pursuant to clause 6 of Schedule 1 to the FOI Act falls within the description of a person's name and other identifying characteristics of the kind referred to in Woods. It is my view that insofar as this information is contained within the Reports it is not information concerning the personal affairs of the persons to whom it refers for the purpose of clause 6. Accordingly, the University’s reliance on this exemption is not justified.

Unreasonable diversion of resources

46 The University asserts that the cost of de-identification of the Reports so that personal information such as addresses and contact details remain masked would be substantial and this would unreasonably divert the University's resources. In my view this submission is unmeritorious. It will be a relatively simple and inexpensive process to de-identify the Reports to the extent that I consider is warranted. Nor do I accept that the cost of providing evidence to establish that the exemptions asserted by the University are justified would have been substantial or that this would have unreasonably diverted the University's resources.

Improper conduct report

47 Section 58 of the FOI Act provides that if the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed by the FOI Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister.

48 The legislature has expressed clearly its intention that the public has a right to obtain access to information held by the Government. The FOI Act provides a mechanism to obtain that information however the right to access is tempered by certain exemptions. The misapplication of those exemptions in an effort to circumvent the legislature’s objective is inimical to the public’s confidence in the proper, efficient and fair exercise of its functions under the FOI Act.

49 Mr McGuirk asserts that officers of the University have engaged in obstructionist behaviour and failed to comply with statutory obligations imposed by the FOI Act. He contends that the University has unreasonably relied on exemptions and unfairly forced him to litigate to establish his claims. Mr McGuirk has requested that, in light of this alleged conduct, a report under section 58 of the FOI Act ought to be made.

50 In the present case I am at a loss to understand why the University has resisted so strongly Mr McGuirk’s attempts to obtain the Reports. However, I am not prepared to agree to his request at this stage. In my view the proper approach is to allow each party to present considered argument on that issue. Accordingly, the matter is to be relisted so that directions can be made with respect to the further progress of the matter.

Orders:

1. The reviewable decisions are set aside.

2. The applicant is to be given a copy of each of those documents that fall within the scope of the applications. It is sufficient satisfaction of this order if the documents are provided in a printable electronic form.

3. Of the documents sought, the material identified in Schedule 1 to these reasons falls outside the scope of the application.

4. These matters are to be listed for further directions in relation to the issue of whether a report under Section 58 of the FOI Act ought to be made.

Schedule 1

1. In the Annexures to the Hungerford Report
The contact details at lines one to four on page 248;
The contact details at lines one to six on page 250;
The contact details at lines one to six on page 251;
The contact details at lines one to six on page 252;
The contact details at lines one to six on page 254;
The contact details at lines one to four on page 255;
The contact details at lines one to six on page 262;
The contact details at lines one to five on page 263;
The contact details at lines one to six on page 266;
The contact details at lines one to nine on page 283;
The contact details at lines one to four on page 284;
The contact details at lines one to nine on page 286;
The contact details at lines one to nine on page 287;
The contact details at lines one to four on page 289;
The contact details at lines one to four on page 304;
The contact details at line four of the second paragraph on page 307;
The contact details at lines one to five on page 309;
The contact details at lines one to six on page 312;
The contact details at lines one to five on page 315;
The whole of the first sentence of the second paragraph on page 319 after the word “laboratory”; and
The contact details at lines one to four on page 324.

2. In Annexure F to the Wainwright Report
The contact details at line one of the handwritten letter dated 15th September and addressed to Professor Wainwright
The identity of the individual who’s leave record is recorded in the e-mail dated September 20 2002 from the Personnel Officer to Professor Hall with the Subject “Leave Record”.
The contact details at lines one to three of the letter dated 25th September 2002 addressed to “To whom it may concern”.
The handwritten contact details at the bottom right hand section of the letter dated 2nd October 2002 and addressed to Professor Hall.

3. In Annexure G to the Wainwright Report
The past grant monetary figures at page 16 of 46 in the NHMRC Project Grant Application.
The birth date and contact details at page 21 of 46 in the NHMRC Project Grant Application.
The grant monetary figures at page 24 of 46 in the NHMRC Project Grant Application.
The fund monetary figures at page 26 of 46 in the NHMRC Project Grant Application.
The birth date and contact details at page 29 of 46 in the NHMRC Project Grant Application.
The grant monetary figures at page 32 of 46 in the NHMRC Project Grant Application.
The salary details at page 37 of 46 in the NHMRC Project Grant Application.
The salary details at page 38 of 46 in the NHMRC Project Grant Application.
The salary details at page 39 of 46 in the NHMRC Project Grant Application.