McGuirk v UNSW

[2007] NSWADT 204

CITATION:	McGuirk v University of New South Wales [2007] NSWADT 204
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	053107
HEARING DATES:	9 May 2006
SUBMISSIONS CLOSED:	23 March 2007
DATE OF DECISION:	6 September 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - protected disclosures - Freedom of Information Act - access to documents - protected disclosures
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Cannane v J Cannane Pty Ltd (In Liquidation) [1998] HCA 26 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 McGuirk v University of New South Wales [2005] NSWADT 113 McGuirk v University of New South Wales [2005] NSWADT 255 Pettit v Department of Education and Training [2004] NSWADT 86 Robinson v Director-General, Department of Health [2002] NSWADT 222. University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65 University of New South Wales v McGuirk (No 3) (GD) [2005] NSWADTAP 67 Watt v Forests NSW [2007] NSWADT 197
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, Barrister
ORDERS:	1. The decision under review is set aside.; 2. Pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the matter is remitted to the University for reconsideration with the recommendation that the Report is to be released to Mr McGuirk. With the exception of those parts of the Report which identifies either the complainants or the complaints made by the complainants in regard to the actions of Professor Bruce Hall, the Report is to be released in full.

1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 (“the FOI Act”). The document that is the subject of this application is a report of the St James Ethics Centre dated December 2004 (“the Report”). The later version of the Report has been published to some degree on the University’s website. Some parts of that document have been masked. Mr McGuirk has brought this application following two deemed refusals to provide him with the Report. Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the University. Mr McGuirk contends that the university has failed to discharge that burden.

2 This matter was subject of a determination on the preliminary issue regarding whether the University was entitled to make the request for an advanced deposit and whether it was entitled to refused to continue dealing with McGuirk’s application when payment of the deposit was not made. The decision on that point is recorded at McGuirk v University of New South Wales [2005] NSWADT 255 and the subsequent appeal at University of New South Wales v McGuirk (No 3) (GD) [2005] NSWADTAP 67.

3 The principal matter ultimately came before…