McGuirk v University of New South Wales (GD)
[2008] NSWADTAP 17
•3 April 2008
Appeal Panel - Internal
CITATION: McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17 PARTIES: APPELLANT
RESPONDENT
(Gerard) Michael McGuirk
University of New South WalesFILE NUMBER: 069045 HEARING DATES: 12 April 2007 , 19 October 2007 SUBMISSIONS CLOSED: 28 November 2007
DATE OF DECISION:
3 April 2008BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Leave to extend to the merits - question of law MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: McGuirk v University of New South Wales [2006] NSWADT 223 FILE NUMBER UNDER APPEAL: 053332 DATE OF DECISION UNDER APPEAL: 08/01/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Ombudsman Act 1974
Protected Disclosures Act 1994CASES CITED: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
Neary v The Treasurer, New South Wales [2002] NSWADT 261
Papakosmas v R (1999) 196 CLR 297R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
SI bhnf CC v KS bhnf IS (2005) 34 Fam LR 468
The Workers’ Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642
University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8
University of New South Wales v McGuirk [2006] NSWSC 1362REPRESENTATION: APPELLANT
RESPONDENT
In person
P Singleton, barristerORDERS: 1. Leave is granted for the Appeal to extend to the merits of the Tribunal’s decision
2. The Tribunal’s decision is affirmed in relation to Part A and Part B, Division 1 of the document
3. The Tribunal’s decision is set aside in relation to Part B, Divisions 2 and 3 (pages 17 to 23) of the document and the following order is made in substitution for that decision:
Access is to be given to Part B, Divisions 2 and 3 of the document (pages 17 to 23) with the name of the person who made the protected disclosure deleted
4. If either party wishes to apply for costs, they should do so within 21 days of the date of this decision. Any submissions in reply should be made within a further 21 days. Any application for costs will be determined by the Appeal Panel on the papers.
REASONS FOR DECISION
Introduction
1 Mr McGuirk applied to the University of New South Wales for access to a document under the Freedom of Information Act 1989 (FOI Act). The document was a submission that the University made to the Ombudsman entitled “Investigation concerning the conduct of the University in its consideration of a protected disclosure alleging maladministration within the Educational Testing Centre.” The submission was made following a complaint to the University about maladministration by employees of the University. It outlined the manner in which the University had dealt with the complaint. Both the complaint to the University and the complaint to the Ombudsman were treated as protected disclosures under the Protected Disclosures Act 1994 (PD Act). After receiving the submission, the Ombudsman reported under section 26 of the Ombudsman Act 1974. Pursuant to the provisions of the PD Act, the identity of the complainant was not disclosed in that report.
2 The University refused to give Mr McGuirk access to the submission on the ground that it was an exempt document under the FOI Act. The first exemption claimed was that the document contains “matter relating to a protected disclosure under the Protected Disclosures Act 1994”: FOI Act, Schedule 1, Clause 20(1)(d). The second exemption claimed was that the disclosure of the information in the document would be an unreasonable disclosure of information concerning someone’s personal affairs: FOI Act, Schedule 1, Clause 6.
3 Mr McGuirk applied to the Tribunal for a review of this decision. The Tribunal decided that the document was an exempt document because it contained matter relating to a protected disclosure. Having made that finding, the Tribunal did not need to make a determination in relation to the personal affairs exemption. The Tribunal then said that the issue, which remained, was “whether the Tribunal has a general discretion to grant access to exempt documents”. The Tribunal concluded, on the basis of the decision in Neary v The Treasurer, New South Wales [2002] NSWADT 261, that the Tribunal did not have such a discretion. The Tribunal’s order was that, “[T]he University’s determination not to provide Mr McGuirk with access to the document that he seeks is affirmed.” Mr McGuirk has appealed to the Appeal Panel against that decision.
4 An appeal may be made as of right on a question of law, but leave is required before an appeal may be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2).
Material before the Appeal Panel
5 Identification of material. The Tribunal did not mark the documents that it admitted into evidence as exhibits in the proceedings. That led to a discussion about what material was in evidence. The parties clarified that matter by confirming that a statement of Richard Buckley dated 17 February 2006 was in evidence as was a copy of the Executive Summary from the New South Wales Audit Office’s Performance Audit Report in relation to the Educational Testing Centre. Documents 1-4 referred to in Mr Buckley’s statement were confidential exhibits. An unsigned Deed of Release was also in evidence.
6 Tribunal not bound by the rules of evidence. Mr McGuirk objected to the Appeal Panel differentiating between evidence that had been admitted into evidence and other material on the Tribunal’s file that had not been formally tendered. He said that the Tribunal is not bound by the rules of evidence, and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act, section 73(2). Not being bound by the rules of evidence gives the Tribunal some flexibility to depart from those rules. In particular it allows the Tribunal to admit evidence that would otherwise be excluded by evidentiary rules including the rules relating to hearsay, opinion and character evidence. However, those rules should not be lightly ignored because they “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256.
7 A critical qualification to the principle that the Tribunal is not bound by the rules of evidence is that it must apply the rules of procedural fairness. One of the elements of procedural fairness is the fair hearing rule, which requires, among other things, that the substance of the material on which a decision will be made is disclosed to a party. The customary manner in which material is disclosed, and by which a party is put on notice that the Tribunal will consider that material, is by admitting it into evidence. While it is not essential that material be formally marked as an exhibit in the proceedings, it is essential that parties are aware of the material that the Tribunal will take into account when making its decision.
8 Mr McGuirk did not point to any material before the Tribunal, other than the material identified above, that the Appeal Panel should take into account on appeal. We consider that our approach in seeking to clarify the material to which the Tribunal had regard when making its decision was correct.
9 In the appeal proceedings a “statement of evidence” signed by Mr McGuirk and dated 12 April 2006 was admitted in evidence. Mr Singleton, representing the University, submitted that the statement was not relevant to any issue arising in the appeal. Mr McGuirk was unable to clearly identify the way in which that material was relevant, however we decided to admit it and to take it into account insofar as it was relevant to any issue before us. It is a fundamental rule of evidence that only relevant evidence should be admitted: Papakosmas v R (1999) 196 CLR 297 per Gleeson CJ and Hayne J. Although the Tribunal is not bound by those rules, it is arguable that the Tribunal would exceed its jurisdiction if it took into account irrelevant evidence. What is not in doubt is that the Tribunal would deny the other party procedural fairness if it was not on notice of the relevance of evidence which was sought to be tendered.
10 It was for these reasons that the Tribunal questioned Mr McGuirk at length about the relevance of his “statement of evidence”. That statement set out the reasons that Mr McGuirk was not well prepared for the hearing before the Appeal Panel. However, he did not seek an adjournment, so that material is irrelevant to any issue we need to decide. The second part of the statement set out material about the University’s allegedly improper treatment of whistleblowers. Mr McGuirk said that if the evidence he had provided in relation to the treatment of so-called whistleblowers by the University was insufficient to establish improper conduct by officers of the University, then he would seek an adjournment to arrange for a witness to give evidence of that matter. It is not the Appeal Panel’s role to advise Mr McGuirk whether or not his evidence is sufficient and to give him a further opportunity to bring evidence if it is not sufficient. In considering the grounds of appeal, we will determine whether the evidence provided by Mr McGuirk of improper conduct by officers of the University is relevant and if so, what weight it should be given.
Grounds of Appeal
11 Mr McGuirk’s grounds of appeal, as set out in his Notice of Appeal and as clarified and amended during the course of the hearing, can be summarised as follows:
Ground 1 – breach of procedural fairness
(a) the Tribunal breached the rules of natural justice because it was not a “competent independent and impartial tribunal established by law”;
(b) the Tribunal erred in its construction of the phrase “matter relating to a protected disclosure under the PD Act” in Clause 20(1)(d); and
(c) the Tribunal erred when it decided that it had no discretion to grant access to exempt documents.
12 Mr McGuirk relied on the High Court’s decision in Johnson v Johnson (2000) 201 CLR 488 referring to the International Covenant on Civil and Political Rights (ICCPR) to submit that the Tribunal was in breach of the rules of procedural fairness because it was not a “competent independent and impartial tribunal established by law.” According to Mr McGuirk, the Tribunal Member hearing this case at first instance, Mr Montgomery, is not competent and a review of his decisions over the last three years supports that assertion.
13 The phrase “competent independent and impartial tribunal established by law” comes from the ICCPR and is mentioned at page 501 of the High Court’s decision:
14 The right to a “fair and public hearing by a competent independent and impartial tribunal established by law” is merely a re-statement of the right to due process enshrined in Magna Carta: SI bhnf CC v KS bhnf IS (2005) 34 Fam LR 468 at [109]. Due process includes the second limb of the rule of procedural fairness, that is, the rule against bias. It is firmly established in the Australian context that a decision maker should be, and should be seen to be, impartial and independent: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The High Court was making the point in Johnson v Johnson (2000) 201 CLR 488 that the principle that every adjudicator should be free from bias has also been accepted in the international law of human rights. The use of the word “competent” in the ICCPR does not mean that a tribunal member should be disqualified unless he or she displays a particular level of ability or skill. The only qualification for appointment as a judicial member of the ADT is that the person either “holds or has held a judicial office” or is “an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 7 years standing”: ADT Act , section 17. A competent tribunal, in the context of the ICCPR, means that the tribunal has jurisdiction and is properly constituted.
It is a ‘fundamental rule of natural justice’ and an ‘abiding value of our legal system’ that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the "parties or the public might entertain a reasonable apprehension" that an adjudicator may not be impartial. Thus, Art 14.1 of the International Covenant on Civil and Political Rights, the starting point for consideration of the relevant requirements of international law, states:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law.
15 Although there was a great deal of discussion before the Tribunal about whether or not Mr McGuirk was applying for Mr Montgomery to disqualify himself for bias, ultimately Mr McGuirk conceded that there was no utility in proceeding with that application. (See transcript of 21 February 2006 at page 24, line 18.) Nor has Mr McGuirk identified any matter to us, which would justify Mr Montgomery being disqualified for bias. Consequently, this ground of appeal fails.
Ground 2 – meaning of Clause 20(1)(d)
16 Grounds of appeal. Mr McGuirk’s second ground of appeal was that the Tribunal misinterpreted the exemption in Clause 20(1)(d) to the Schedule of the FOI Act. That provision states that:
17 There were two parts to this ground of appeal. The first was that the Tribunal erroneously gave the term “relating to a protected disclosure” the widest possible meaning. The second alleged error was that the Tribunal did not interpret the term in context.
(1) A document is an exempt document if it contains matter the disclosure of which would disclose:
. . .
(d) matter relating to a protected disclosure within the meaning of the PD Act
18 Mr McGuirk said that in this case the intention of parliament has not been fulfilled because the University has used the exemption in section 20(1)(d) to cover up corruption rather than to promote the purposes of the PD Act. He pointed to the material in his “statement of evidence” as establishing that allegation. Mr Singleton correctly identified the short answer to Mr McGuirk’s submission. Any conduct of the University is not relevant to the meaning of the words “matter relating to a protected disclosure” in Clause 20(1)(d). The principles of statutory construction apply to the interpretation of the exemption. The circumstances of a particular case are not relevant to its meaning. Consequently, we have not taken into account Mr McGuirk’s statement of evidence when determining the meaning of “relating to a protected disclosure”.
19 Meaning of “relating to a protected disclosure”. Mr McGuirk submitted that the Tribunal erred by saying, at [18], that the expression should be given its “widest possible meaning”. The submission of Mr Singleton with which the Tribunal agreed, appears in the transcript at p 80, line 25:
20 Conclusion. In The Workers’ Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 Wilson and Gaudron JJ referred at 646, to decisions where it was said that the phrase “in respect of” should have “the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”. Their Honours regarded that interpretation of the phrase to be “perhaps somewhat extravagant”. Deane, Dawson and Toohey JJ at 653 were more definitive:
The only other thing that needs to be said is that the term “relates to” or “related to” is of the widest possible meaning when it speaks of connections between two different things. The law sometimes speaks of “in relation to”, sometimes it says “relates to” and another formulation is “with regard to”. There may be one or two others, which escape my mind. There is ample authority for the proposition that those are very wide terms of connection.
21 In the light of the High Court’s decision, the Tribunal went too far when it said that the phrase “relating to a protected disclosure” should be given its “widest possible meaning”. It should have said that the phrase should be given “a wide meaning” but that the context will determine the matters to which it extends. Of particular relevance to the context are the objects of the PD Act and the FOI Act . Given this error, it is appropriate to extend the appeal to the merits of the Tribunal’s decision on this point. We can either remit that matter to the Tribunal or determine it ourselves: ADT Act , section 114 and section 115. We are of the view that we should determine the issue ourselves based on the parties’ submissions to the Tribunal at first instance and on appeal.
Undoubtedly the words “in respect of” have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111, that “they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.
22 Consideration of the merits. The Tribunal found, at [17] that a person had made a protected disclosure under the PD Act, to the Ombudsman. Mr McGuirk did not dispute that finding before the Appeal Panel. The only outstanding question is whether the document in dispute, which is a submission from the University outlining the manner in which the University had dealt with the complaint when it was initially made, “contains matter the disclosure of which would disclose matter relating to” a protected disclosure.
23 In 1994, when the PD Act was enacted, the FOI Act was amended to include the exemption in Clause 20(1)(d). The objects and provisions of both Acts provide the context in which that exemption should be interpreted. The PD Act was enacted “to provide protection for public officials disclosing corrupt conduct, maladministration and waste in the public sector and for related purposes.” The object is set out in section 3(1):
24 That object is to be achieved by:
The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and serious and substantial waste in the public sector . . .
25 The degree to which protected disclosures should remain confidential is set out in the confidentiality guideline in section 22 of the PD Act :
(a) enhancing and augmenting established procedures for making disclosures concerning such matters, and
(b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and
(c) providing for those disclosures to be properly investigated and dealt with.
An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a protected disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the protected disclosure unless:
(a) the person consents in writing to the disclosure of that information, or
(b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or
26 There is nothing in the PD Act that requires an investigation of a protected disclosure to be conducted confidentially. The fact that proper investigation is mentioned in section 3(1) of the PD Act as one of the means by which the object of the Act is to be achieved, does not mean that the content of those investigations is intended to be kept confidential. The confidentiality guideline in the PD Act applies only to the identity of the person making the disclosure. Despite that fact, the exemption in the FOI Act applies to any matter relating to a protected disclosure regardless of whether the information would identify or tend to identify the person who made the disclosure. The breadth of the exemption cannot be explained by the objects of the FOI Act , one of which is to extend, as far as possible, the rights of the public to obtain access to information held by the Government: FOI Act , section 5(1)(a). However, even when read in context, the term “relating to” is a broad one. It cannot be read down to apply only to information concerning the identity of an informer.
(c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.
27 The document in dispute is a submission to the Ombudsman in response to a protected disclosure. That submission contains, among other things, the identity of the informer and the steps that the University took to investigate the allegations that that person had made. Even if the term “relating to” is interpreted narrowly, there is a direct and strong connection between the protected disclosure and the University’s submission setting out how that disclosure was investigated. That connection is sufficiently close to come within the definition of “relating to” a protected disclosure under the PD Act. Consequently, the decision of the University not to give Mr McGuirk access to the disputed document because it is an exempt document is affirmed.
Ground 3 – discretion to give access to exempt documents
28 The Tribunal decided at [20] that it had no general discretion to grant access to an exempt document. Since the Tribunal made that determination, the Supreme Court has handed down a decision in University of New South Wales v McGuirk [2006] NSWSC 1362. In that case Nicholas J concluded at [102], that the Tribunal has a discretion “to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.” At [85], Nicholas J adopted a passage from Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 as a correct statement of the law:
29 It follows that the Tribunal made an error of law when it decided that it had no general discretion to grant access to an exempt document. We can either remit that matter to the Tribunal or determine it ourselves: ADT Act , section 114 and section 115. We are mindful of the costs to parties of determining this issue at a further hearing before the Tribunal. We have decided that the appropriate course is for the Appeal Panel to determine the question of whether, although the document is exempt, it should nevertheless be released. We appreciate that that decision deprives the losing party before the Tribunal of the opportunity to appeal against the decision to the Appeal Panel.
Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of section 63 of the ADT Act – indeed the duty – when reviewing a determination under sub-section 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under section 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it.
Further hearing
30 This matter was stood over, part heard, to 20 June at 9.30 at which time Mr McGuirk was to be given an opportunity to reply to the submissions of Mr Singleton and make an application for costs. The parties were also invited to make submissions in relation to the override discretion in the event that the Appeal Panel set aside the decision below and extended the appeal to the merits on that issue. The matter did not proceed on 20 June and was re-listed on 19 October 2007, the first date that was suitable to the parties and the Appeal Panel. Mr McGuirk did not attend on that occasion. Given his non-attendance, the Appeal Panel made the following orders and directions:
31 On 22 October 2007, the Tribunal wrote to Mr McGuirk advising him of these directions. On 22 November 2007 Mr McGuirk wrote to the Tribunal advising that he had not had an opportunity for at least a month to review the matters that he currently has before the Tribunal. He says he phoned the Registry on that day and subsequently conducted a thorough search of his ‘in tray’ and discovered an unopened envelope from the Tribunal containing the 22 October 2007 letter. He says that notwithstanding that he did not read that letter until 22 November 2007, he advised the Tribunal of the reason for his non-attendance on 19 October in a facsimile sent on 23 October 2007. That facsimile explained Mr McGuirk’s non-attendance in a separate matter (053437) on 23 October 2007. In explaining the reasons for his non-attendance on that day, Mr McGuirk referred to the fact that he had made an application to the Local Court in Burwood on 19 October 2007 for a warrant to be issued pursuant to section 229 of the Criminal Procedure Act 1986 for the arrest of the Commissioner of the New South Wales Police, Andrew Scipione. Mr McGuirk apologised for his non-attendance on 23 October 2007. Mr McGuirk submitted that he clearly had good reasons not only for failing to attend the Tribunal on 19 October 2007, but also for failing to comply with the directions for filing further material.
1. The Appeal Panel will ask Mr McGuirk to provide an explanation for his non-attendance on 19 October 2007, within 7 days. If an explanation is provided, the Tribunal will seek submissions from the University as to whether the explanation is adequate and whether Mr McGuirk should be permitted to file any submissions in Reply and any further submissions on the override discretion. The Appeal Panel will then determine that issue on the papers.
2. If the Appeal Panel decides that Mr McGuirk has provided an adequate explanation for his non-attendance, he will be directed to file and serve any further submissions in Reply and in relation to the ‘override discretion’ within a further 21 days. The University will be given a further 21 days to file and serve any submissions in reply on the override discretion. The Appeal Panel will then determine the ‘override discretion’ issue.
32 By letter of 28 November 2007, the University submitted that Mr McGuirk’s explanation for his non-attendance was not adequate for the following reasons:
33 On 5 December 2007 the Registry wrote to the parties advising that the Appeal Panel was of the view that Mr McGuirk had not provided an acceptable explanation for his non-attendance on 19 October 2007 and that consequently the appeal would be determined on the basis of the submissions before it on that date. The parties were also advised that reasons for the Appeal Panel’s view that Mr McGuirk’s explanation was not acceptable would be provided in the reasons for decision. We now provide those reasons.
1. Mr McGuirk admits that he did not write to the Tribunal advising of his reasons for non-attendance until 23 October 2007, four days after the hearing day.
2. Mr McGuirk was always aware that the matter was listed for hearing on 19 October 2007 as early as 6 August 2007, when the Tribunal wrote to him. Despite this, he offers no reason for his discourtesy in failing to inform the Tribunal or the University before the hearing date, of his intention to not attend the hearing.
3. The reasons for his non-attendance, as set out in his letter of 23 October 2007 are not a sufficient excuse for his non-attendance. There is no rule of law, or ethical or other code of conduct applicable to Mr McGuirk (who is not legally qualified) that requires that criminal proceedings (of which in any event he was an applicant) take precedence over civil proceedings. It was always open to him to instruct a lawyer to appear on his behalf in either set of proceedings but he chose not to do so.
4. The fact that Mr McGuirk is involved as an applicant in a large number of different legal actions is no excuse for his failure to notify the Tribunal of his proposed non-attendance.
34 We accept that Mr McGuirk was in another court on 19 October 2007. However, he had been on notice of the hearing since 6 August 2007. If he was unable to attend on that day, he should have advised the Tribunal and the University prior to the hearing. He has not explained his failure to do so. Furthermore, Mr McGuirk had an opportunity to provide written submissions following the decision in the first matter. He has had ample opportunity to bring any relevant matters to the Appeal Panel’s attention. Consequently, we will determine the remaining issue on the basis of the evidence before the Tribunal, written submissions from both parties and Mr Singleton’s oral submissions to the Appeal Panel.
Override discretion
35 The remaining question for the Appeal Panel is whether the University should have exercised its discretion under section 25(1)(a) of the FOI Act to give Mr McGuirk a copy of the disputed document even though that document is an exempt document. The Appeal Panel examined the nature and extent of the discretion in a previous decision, University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 at [9] to [18]. We adopt that reasoning in this decision. The Appeal Panel concluded at [18], that:
36 Mr Singleton submitted that Parliament has already recognised that there is a public interest in the non-disclosure of documents relating to protected disclosures. While certain exemptions in the FOI Act require the agency to take into account the public interest, the exemption for protected disclosures does not contain a separate public interest test. The exemption for Cabinet documents (Clause 1); law enforcement (Clause 4) and legal professional privilege (Clause 10) fall into the same category. Mr Singleton says that the strongest category of exemption is legal professional privilege, followed by Cabinet documents and then protected disclosures. According to Mr Singleton, Parliament has already determined where the balance should lie in relation to these categories of documents.
The FOI Act requires discretions be exercised, as far as possible, so as to facilitate the disclosure of information: section 5(3)(b). Consistently with the objects of the FOI Act , and the means by which those objects are to be achieved, it can be assumed that the exemptions were included because parliament considered that they were “reasonably necessary for the proper administration of the Government”. In that sense, the balancing exercise between competing public interest considerations has already been undertaken. Nevertheless, a relevant consideration when exercising the discretion is whether there is a reason, particular to the circumstances of the case, for giving access to such documents. That reason needs to be sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of Government. In that sense, it may be described as special, overriding or strong: See Department of Premier and Cabinet v Hulls [1999] VSCA 117; Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55.
37 Parliament considered that the public interest expressed in the object of the PD Act was sufficiently strong to override the public interest in open and accountable government. However, the fact that an agency has a discretion to disclose such documents suggests that there are circumstances where the correct and preferable decision would be to do so. In our view, given the subject matter and scope of the FOI Act, there needs to be a reason particular to the circumstances of the case which is sufficient to displace the assumption that the exemption is reasonably necessary for the proper administration of the University.
38 In the proceedings before the Tribunal, Mr McGuirk made a general statement that disclosure was in the public interest. The second part of the statement Mr McGuirk tendered to the Appeal Panel set out material about the University’s allegedly improper treatment of whistleblowers including the person who he understood had made the protected disclosure. He said that that person was prepared to give evidence to the Appeal Panel but that he had been unable to arrange for the person to do so because of other unrelated circumstances. Mr McGuirk invited the Appeal Panel to adjourn the proceedings in order to make arrangements for the person who had made the protected disclosure to appear and give evidence. Mr McGuirk did not say that the person consented to the submission being disclosed.
39 Mr Singleton said that the object in section 3(1)(c) of the PD Act specifically refers to the investigation of protected disclosures and the University’s investigations of protected disclosures should not be circumscribed. He said that the University should be permitted to investigate its own problems confidentially. Furthermore, in the absence of any reason justifying disclosure Mr Singleton said that the submission should not be released.
40 The onus of establishing that the documents should not be released is on the University: FOI Act, section 61. Contrary to Mr Singleton’s submission, that means that even if Mr McGuirk has not put forward a sufficient reason for releasing the document, the Tribunal may nevertheless come to the view that the University should have exercised its discretion to give access to the document.
41 The public interest reflected in the FOI Act is the public interest in openness and accountability. In this case the public interest, which is promoted by the exemption in Clause 20(1) (d), is the public interest in protecting from reprisals public officials who disclose corrupt conduct, maladministration and waste in the public sector. The object of the PD Act is to encourage and facilitate such disclosure. Section 3(1)(c) of the PD Act relating to the investigation of protected disclosures is not an object of the PD Act. It is merely a means by which the object is to be achieved. That provision does not justify keeping details of investigations confidential, especially given that the confidentiality guideline in section 22 applies only to information that might identify or tend to identify a person who has made a protected disclosure. Making the details of investigations public may well encourage agencies to conduct a thorough and objective assessment of the protected disclosure. In that sense disclosure would promote openness and accountability. Even without taking into account any of Mr McGuirk’s assertions in relation to corruption or improper treatment, the preferable decision is to disclosure the details of the investigation.
42 The submission was divided into Part A and Part B. Part B was divided into three further divisions, Division 1, Division 2, and Division 3. Disclosing the information in Part A and Part B, Division 1 would not only disclose the identity of the person who made the disclosure, it would disclose a great deal of sensitive personal information about that person. The document reveals that there are several people who know the identity of the person who made the protected disclosure. Consequently, deletion of the name would not protect the person’s privacy. The submission also contains sensitive personal information relating to another person. (See, for example, Part A, Division 1, 1.2.1, third paragraph.) There was no evidence from either of those people as to their attitude to the disclosure of their identity or the personal information relating to them. Furthermore, contrary to Mr McGuirk’s contention, it is not appropriate for the Appeal Panel to seek out that evidence or adjourn the proceedings to enable those people to give evidence. Mr McGuirk did not suggest that the person who made the protected disclosure consented to the submission being made public.
43 We also note that in Part B, Division 1, there is reference to matters that are likely to be privileged from production in legal proceedings on the ground of legal professional privilege. The University waived that privilege but only for the purpose of making the submission to the Ombudsman. There are no circumstances of which we are aware that would justify the disclosure of privileged information in this case. Nevertheless, that information could have been deleted if it were practicable to disclose the remainder of that part of the document.
44 It is not practicable to delete the information identifying the person who made the protected disclosure and the sensitive personal information contained in Part A and Part B, Division 1 of the submission: FOI Act, 25(4). That part of the document would not make sense with all that information deleted. The same concern does not apply to Part B, Divisions 2 and 3. While the name of the person who made the disclosure is mentioned in those Divisions, it is practicable to disclose the information with the name deleted. There is no personal information about the person who made the disclosure in that part of the document. In our view, the correct and preferable decision is to give Mr McGuirk access to pages 17 to 23 of the submission, but with the name of the person who made the protected disclosure deleted. We have not been provided with any of the annexures to the submission, nor has any determination been made by the Tribunal in relation to those annexures.
Order
1. Leave id granted for the Appeal to extend to the merits of the Tribunal’s decision
2. The Tribunal’s decision is affirmed in relation to Part A and Part B, Division 1 of the document
3. The Tribunal’s decision is set aside in relation to Part B, Divisions 2 and 3 of the document and the following order is made in substitution for that decision:
4. If either party wishes to apply for costs, they should do so within 21 days of the date of this decision. Any submissions in reply should be made within a further 21 days. Any application for costs will be determined by the Appeal Panel on the papers.
Access is to be given to Part B, Divisions 2 and 3 of the document (pages 17 to 23) with the name of the person who made the protected disclosure deleted
5
13
3