McLennan v University of New England

[2013] NSWADT 113

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

McLennan v University of New England [2013] NSWADT 113

Hearing dates:

On the papers

Decision date:

27 May 2013

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1.Set aside the decision of the University and remit it for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of the publication of these reasons.

2.With effect 30 days from the publication of these reasons, all previous orders made in these proceedings under s 75 of the Administrative Decisions Tribunal Act 1997 are discharged.

Catchwords:

Government information (public access) - accountability- transparency - personal affairs - business affairs - bonuses paid to senior staff disclosed

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Annual Reports (Statutory Bodies) Regulation 2010
Government Information (Public Access) Act 2009
University of New England Act 1993

Cases Cited:

Clarke v Blacktown City Council [2013] NSWADT 36
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QICmr 2
Raethel v Department of Education & Training [1999] NSWADT 108
Re Asher and Department of State and Regional Development [2002] VCAT 609
Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105
Re Stewart and Department of Transport, [1993] QICmr 6; (1993) 1 QAR 227

Texts Cited:

Robinson's New South Wales Administrative Law, Thomson Reuters

Category:

Principal judgment

Parties:

Helen McLennan (Applicant)
University of New England (Respondent)

Representation:

T Battin (Applicant agent)
B Peet, (Respondent Legal Officer)

File Number(s):

123151

reasons for decision

Introduction

1. This is a review of a decision made on 30 June 2012 by the University of New England (the University) under the Government Information (Public Access) Act 2009 (the GIPA Act), with respect to an application for access to information made by Ms McLennan. In her access application Ms McLennan sought access to information concerning the "salaries, KPI.s and bonuses of UNE's Senior Executive Staff, Directors and Heads of School for 2010 and 2011." The University refused to give her access to the information requested.

1. At Ms McLennan request the Information Commissioner reviewed the original decision on 14 May 2012 and recommended that the University make a fresh decision.

1. Ms McLennan's application for external review to of that decision was made to the Tribunal on 7 June 2012. At that time the University had not reconsidered its decision. It has subsequently done so, after Ms McLennan clarified that she was not seeking copies of relevant employment contracts, but did seek access to the information specified in her original request.

1. On 9 October 2012 in a further decision the University determined to release to Ms McLennan all the information she sought except for details of the actual bonuses paid by the University to relevant staff members in the years 2010 and 2011. The University did agree to provide the following information in tabular form with respect to each employee covered by the request: staff members' position, salary, KPI and potential bonus. With respect to the actual bonuses paid the University consider that the public interest considerations against disclosure outweighed those in favour of disclosure, and did not disclose them.

1. Ms McLennan continued to press for access to the information relating to actual bonuses paid to senior staff of the University, whose bonuses were not otherwise publicly available. In this regard it is important to note that clause 11 of the Annual Reports (Statutory Bodies) Regulation2010 relevantly provides -

(1) For the purposes of section 7 (1) (a) (v) and (b) of the Act, there must be shown in the annual report of a statutory body a statement on the performance of each executive officer of the statutory body of or above level 5 holding office at the end of the reporting year.

(2) The statement:

(a) is to be made by the person responsible by law for reviewing the officer's performance, and

(b) is to indicate the officer's performance having regard to the officer's agreed performance criteria and, if any performance-related incentive payments were paid or payable in respect of the officer, is to include the details set out in subclause (3), and

(c) is to be prepared in accordance with guidelines issued to statutory bodies by the Treasurer from time to time.

(3) The details of the performance-related incentive payments paid or payable in respect of the officer to be included are as follows:

(a) if performance-related incentive payments are accounted for on an accrual basis, the total amount of such payments for the reporting year that were paid or due and payable to the officer,

(b) if performance-related incentive payments are accounted for on a cash basis, the total amount of such payments that were paid during the reporting year to the officer, and the periods to which the payments relate,

(c) a summary of the criteria for determining the total performance-related incentive payments to the officer as referred to in paragraph (a) or (b).

(4) This clause also applies to any statutory officer who is the chief executive officer of a statutory body but does not hold an executive position and, in any such case, applies as provided in guidelines issued to statutory bodies by the Treasurer from time to time.

1. Clause 3 of the Regulation defines executive officer as including "(c) a person who holds a position on the executive staff of a university, and includes a person acting in such a position for 6 months or more."

1. Not all of the relevant senior staff paid bonuses by the University are "above level 5". As a result their bonuses are not disclosed in the University's annual report.

1. At a planning meeting held on 1 November 2012 the parties agreed that the issue of whether Ms McLennan should be refused access to information concerning the actual bonuses paid to relevant University staff could be determined to the papers, in the light of submissions from the parties. I indicated that I was content to follow that path, but reserved to the Tribunal the right to convene a hearing if I was unable to resolve an issue of fact to my satisfaction on the papers. I had explained to the parties, and I am satisfied that they understood, that s 105 of the GIPA Act provides that the University bears the onus of establishing that its refusal to grant Ms McLennan access to the information was justified.

1. I remain of the view that this is a matter that the Tribunal can adequately determine on the papers in the absence of the parties.

Material Considered by the Tribunal

1. In considering this matter I have had regard to the following documents:

• The University's original decision to refuse Ms McLennan access to information.
• The review report and recommendation from the Office of the Information Commissioner dated 14 May 2012.
• Ms McLennan's application to the Tribunal for external review.
• The further decision made by the University on 9 October 2012.
• The University's submission in its letter to the Tribunal. dated 9 October 2012. This adopted the reasoning in the further decision.
• Ms McLennan submissions dated 30 October 2012 and 9 November 2012.

1. The University has also provided to the Tribunal on a confidential basis all of the information sought by Ms McLennan. This includes tables in the form set out in the University's further decision for 2010 and 2011, which include columns specifying the bonuses actually paid to relevant staff members. The Tribunal has made orders under s 75 of the Administrative Decisions Tribunal Act 1997 prohibiting disclosure of that material until further order.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

1. 'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(c) a public authority." Public authority is in turn is defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Agency is such a body being established by the University of New England Act 1993. It is therefore an agency to which the GIPA Act applies.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

1. The Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information:

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct

1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

1. In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply -

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has issued a Guideline (4) entitled Personal information as a public interest consideration under the GIPA Act.

1. The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Individual rights, judicial processes and natural justice" and "Business interests of agencies and other persons" in the Table to s 14. They are -

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual's personal information,

...

4. Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

...

(d) prejudice any person's legitimate business, commercial, professional or financial interests,

1. Personal information is defined in clause 4 of Schedule 4 -

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

1. Reveal' is defined in Clause 1 of Schedule 4 -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonable practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5).

1. An access application is to be determined in accordance with s 58 -

(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. In exercising functions under the Act s 3(2) instructs that -

It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Public interest considerations in favour of disclosure

1. In its further decision the University identified the following public interest considerations in favour of disclosure of the actual bonuses paid to senior staff of the University:

... it could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

I agree that this is one public interest considerations in favour of disclosure.

1. Additionally, I consider that the disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. Knowledge of the actual bonuses paid to senior staff of the University would enhance the accountability of the University for the expenditure of public funds, the transparency of its operations, and enable consideration of the value obtained by the University for the expenditure of public money.

1. In Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QICmr 2 (24 February 2004) the Queensland Information commissioner said, at [27-28]

"Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual (and hence information concerning that individual's personal affairs) and information about the cost of having the duties of the relevant position performed for the benefit of the public. The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest. This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding. This public interest is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes.

28. I consider that there is a strong public interest consideration favouring disclosure to any interested member of the public, of information as to the total cost in salary and related expenses of any job for which a government decides to allocate funding, and that it is even stronger in the case of senior management positions of the kind under consideration in the present case. The same public interest considerations would apply in favour of informing the public of the total costs of having services performed for the public by private sector service-providers (see Re Wanless Wastecorp Pty Ltd and Caboolture Shire Council (2003) 6 QAR 242 at p.283, paragraphs 145-148), or the total costs of a government agency retaining a private sector consultant to provide expert services not able to be performed by its own pool of employed staff."

1. That decision followed Re Stewart and Department of Transport , [1993] QICmr 6; (1993) 1 QAR 227; Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105, and in Re Asher and Department of State and Regional Development [2002] VCAT 609, in all of which the public interest in the remuneration paid to public officers (especially those at a senior level) as a cost to government was recognised, despite the fact that the same information related to an individual's personal affairs.

1. While the GIPA Act is concerned with personal information, rather than information related to an individual's personal affairs, the public interests considerations in favour of disclosure articulated in those decision is equally applicable here: Hurst v Wagga Wagga City Council [2011] NSWADT 307 and Clarke v Blacktown City Council [2013] NSWADT 36.

1. Also in favour of disclosure is the general public interest consideration in favour of disclosure in s 12(1) of the GIPA Act.

Public interest consideration against disclosure

3 (a) Disclosure of the information could reasonably be expected to have one or more of the following effects reveal an individual's personal information

1. Information concerning bonuses paid to senior staff at the University, like salaries paid to senior staff in government employment, "is information about the salary paid to individuals whose identity is apparent, or can be reasonably ascertained" and therefore is the personal information of each of the staff members concerned: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [102].

1. That being the case there is a public interest consideration against disclosure of the information deleted by the agency from the audit report, on the ground that it could reasonably be expected to reveal an individual's personal information.

1. It is to be noted that there is no evidence before me concerning whether or not senior staff members object to the release of information relating to bonuses paid, and the University has not addressed this in submissions. I am satisfied, however, that the necessary consultation has taken place.

4 (d) Disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests

1. In its reconsideration decision the University identified its own business, commercial, professional and financial interests as those which could reasonably be expected to be prejudiced by release of information concerning the bonuses actually paid to its senior staff. This was explained as follows -

This is because bonuses are used as a performance management tool, and this performance management tool may be inhibited if the person making the bonus decision knows that the decision may become public.

For example, a decision to award a manager less than the maximum bonus due to average performance is much more serious if the decision is likely to be made public. It also has the potential to embarrass the relevant manager and damage the manager's reputation and standing at UNE. This would damage the manager's effectiveness in managing his/her own staff and therefore damage UNE as a whole.

1. This public interest consideration against disclosure is similar to the exemption in clause 7(c) of the First Schedule to the repealed Freedom of Information Act 1989. The authors of Robinson's New South Wales Administrative Law, Thomson Reuters, commented that, at [50.7410]

This provision is similar, but not identical to 7(1)(c) of Sch 1 to the FOI Act. Clause 4(d) introduces the notion of a person's "legitimate" business interests.

The word "prejudice" was also used in the FOI Act. In Sobh v Victoria Police (1993) 1 VR 41; 65 A Crim R 466 at 55 (VR), 481 (A Crim R) Nathan J said, "[p]rejudice is not a term of legal art. It means to impede or derogate from".

The crux of the public interest consideration is that government frequently holds detailed information about business operations which, if disclosed to a competitor, would undermine that business. If the business is not dealing with government, then there may be only limited public interest benefits in terms of understanding government processes and decision-making which would flow from disclosure of the business information. If the business is a government business or has been contracting with government, the public interest considerations in favour of disclosure are likely to be more weighty.

1. It can be seen that this public interest consideration against disclosure and its predecessor have usually been used with respect to the release of information concerning the affairs of others, rather than those of the agency that holds the relevant information. This is so because there are other public interest considerations against disclosure found in the Table to s 14, especially under the hearing "Responsible and effective government" which are better adapted to meet the concerns raised by the University in this case. That in clause 1(f) is particularly applicable: i.e. "that disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions." The function in issue would be the agency management of staff performance. In my view, the submission also raises for consideration that public interest consideration against disclosure.

1. Despite this customary usage of point 4(a) of the Table, I accept that it can reasonably be argued that release of information relating to staff bonuses could be reasonably expected to prejudice the University's legitimate business interest in the proper and orderly management of staff performance: see Raethel v Department of Education & Training [1999] NSWADT 108 at [46]. I am not persuaded that the argument can be maintained in respect of the University's commercial, professional and financial interests.

Balancing the public interests

1. Having identified the public interest considerations in favour of and against disclosure, it is now necessary to consider what weight should be attached to each of those considerations and to determine, on balance, whether the overriding public interest is in favour of or against disclosure. As I observed in Hurst at [94] -

Ultimately, the balancing of these competing interests is a question fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.

1. In my opinion the public interest considerations in favour of disclosure I have discussed above concerning accountability for, and transparency of public expenditure on, senior staff of the University are weighty factors. Those considerations were well articulated by Information Commissioner Sorenson in Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council (see paragraph 30 above) and merit considerable weight, as does the general public interest consideration in favour of disclosure in s 12(1) of the GIPA Act.

1. The Agency has pointed to two public interest considerations against disclosure, relating to disclosure of the personal information of its senior staff and prejudice to its business affairs concerning management of staff performance.

1. The public interest consideration against disclosure of personal information is real and concerns the public having access to details of the bonuses paid to individual staff members, when their maximum bonuses are known. I accept that disclosure might enable a person comparing those figures to reach a conclusion as to the individual's performance assessment. Such a conclusion would necessarily be tentative and based on sparse information. As a consequence, I accept that this fact that disclosure could reasonably be expected to reveal personal information is a consideration deserving weight in its own right.

1. In my opinion the weight to be given to the personal information consideration is greater than that which should afforded to those considerations affect the University's business interest and the management of its operations, with respect to performance management. This is so as because there is a tension between the University's use of its bonus system in the management of staff performance, and the public interests in its operations being accountable and transparent. The argument advanced by the University does not discriminate between good performance management decisions and bad ones. As Ms McLennan submitted -

"If a [bonus] decision is sound, it can withstand public scrutiny; if it is not sound, it should not be hidden."

1. The strength of the public interest in accountability and transparency of the University's employment practices in regard to its senior staff is emphasised by the provisions of the Annual Reports (Statutory Bodies) Regulation 2010 with respect to disclosure of financial payments to very senior staff. Those provisions demonstrate that publication of such matters is accepted as a necessary incident of the accountability of very senior managers of statutory bodies.

1. The University argued that the limitation of that compulsory disclosure to executive officers above level 5 indicates a legislative intention that disclosure of details of remuneration paid to less senior staff is not necessary or appropriate. I do not accept this submission. The regulation is concerned with compulsory disclosure of information in annual reports. It does not evidence a legislative intention that details of remuneration paid to executive officers of level 5 and below should not be publicly disclosed. It simply does not require such disclosure in annual reports.

1. Having the determined the weight to be given to all of the applicable public interest considerations the Tribunal's task is to weigh them and reach a conclusion.

1. In my opinion when all of these factors are weighed and considered the balance favours disclosure of the bonus information. As a consequence I am satisfied that there is an overriding public interest in favour of disclosure

Conclusion

1. As a result of the above I will set aside the decision of the University and remit it for reconsideration in accordance with these reasons, such reconsideration to be completed within 30 days of the publication of these reasons.

1. As a consequence of that order there will be no need for the confidentiality orders I have previously made under s 75 of the Administrative Decisions Tribunal Act 1997 to continue. With effect 30 days from the publication of these reasons they are discharged.

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Decision last updated: 27 May 2013