Nationwide News Pty Ltd v General Manager, Leichhardt Council
[2003] NSWADT 76
•04/16/2003
CITATION: Nationwide News Pty Ltd -v- General Manager, Leichhardt Council [2003] NSWADT 76 DIVISION: General Division PARTIES: APPLICANT
Nationwide News Pty Ltd
RESPONDENT
General Manager, Leichhardt CouncilFILE NUMBER: 023098 HEARING DATES: 16/10/2002, 29/10/2002 SUBMISSIONS CLOSED: 10/29/2002 DATE OF DECISION:
04/16/2003BEFORE: Robinson MA - Judicial Member APPLICATION: access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133
Saleam -v- Director General, Department of Community Services [2002] NSWADT 41
Saleam -v- Director General, Department of Community Services [2002] NSWADTAP 30
A -v- Director General, Department of Health [2000] NSWADT 59
Woods -v- Chief Executive Officer, State Rail Authority [2002] NSWADT 253
Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11
BY -v- Director General, Attorney General's Department (No 2) [2003] NSWADT 37
Director General, Department of Community Services -v- Latham (GD) [2000] NSWADTAP 21
Bennett v Vice Chancellor, Unviersity of New England [2002] NSWADT 175
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Saltman Engineering (1948) 65 RPC 203
Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93
Neary v The Treasurer, New South Wales [2002] NSWADT 261REPRESENTATION: APPLICANT
RESPONDENT
A Henskens, barrister
C Ronalds, barristerORDERS: 1. The reviewable decision is affirmed. ; 2. These reasons for determination are confidential to the respondent and to the applicant’s legal representatives for 14 days from today and shall not be published for 14 days from today; and; 3. The parties have liberty to apply within 14 days of today as to any further confidentiality orders they might seek.
1 The applicant is a Sydney newspaper publisher. It made an application to the respondent under section 17 of the Freedom of Information Act 1989 ("the Act") dated 6 March 2002 seeking access, in terms, to “ the report by independent consultant Helen Colbey of the fact-finding investigation she conducted on behalf of Leichhardt Council in relation to the alleged sexual harassment claim against council’s [then] general manager… ”. It is common ground that the respondent council commissioned an independent consultant, Ms Helen Colby, to investigate “certain allegations” made by an employee of the respondent against the then General Manager of the respondent and to produce a report (“the report”).
2 The original application was refused by the Administration Manager of the respondent agency in a letter dated 18 March 2002. He merely set out two grounds of exemption from the FOI Act, namely, clause 6(1) of Schedule 1 of the Act (documents affecting personal affairs), and clause 10 of the said Schedule (legal professional privilege), refused access, and advised the applicant of its appeal rights. I note in passing that this notice of determination was on the face of it deficient as:
3 In response to an internal review application made pursuant to s 34 of the FOI Act, the Acting General Manager made a determination dated 12 April 2002 again refusing access to the report in whole. The said determination provided skeletal reasons and noted that the Council had not yet seen the document as it had not been delivered to it. The report was referred to in these terms in the letter:
(a) Reasons and findings of fact were not provided (as were required to be provided by s 28(2)(e) of the FOI Act);
(b) There was no attempt to deal with the public interest test that might apply or any discretionary considerations that applied (pursuant to s 25(1)); and
(c) There was no apparent consideration given to whether access should be granted to the alleged exempt documents in a form which deleted any exempt matter from the face of the documents (if that is what the applicant would wish) as required by section 25(4) of the FOI Act and as permitted by section 28(2)(c) of the said Act.
4 The internal review determination suffered similar deficiencies to the original refusal. There was no obvious consideration of the public interest and consideration had not apparently been given to the possible deletion of exempt material from the subject document or of any discretionary factors going to possible release – perhaps for the reason that the Council had not yet seen the report as at the time of making both FOI determinations. In addition to relying on clause 6 (personal affairs) and clause 10 (privilege), the decision-maker now relied on clause 4(1)(a)(b)(d)(e) & (h) of Schedule 1 (law enforcement & public safety) and clause 13 (confidential material). Due to the reliance on clause 4, the decision-maker now contended that the document was a “restricted document” within the meaning of s 6(1) of the FOI Act and was not merely an “exempt document”.
“[T]he document you seek is the report by the Internal Audit Bureau of its investigation of a complaint. The Bureau, an independent body, was commissioned by the Council to investigate a complaint. I understand that the document details allegations and interviews with witnesses.”
5 The applicant then lodged its review application with the Tribunal. A planning meeting was held at the Tribunal on 21 June 2002 where it became clear that the respondent had not yet issued any notices to persons mentioned in the report pursuant to the "reverse FOI" procedure set out in s 31 of the FOI Act. The respondent resisted proposed directions relating to such consultation stating that, having regard to the particular nature of the report (which it had not yet then seen), such consultation will be found to be unnecessary. I will return to this issue later in this determination.
6 At the hearing of these proceedings on 16 October 2002 both parties were represented by barristers who were each instructed by solicitors. Various applications were made and determined on the day. The Premier, being the Minister Administering the FOI Act, was invited to participate in the proceedings as a party pursuant to section 57(6) of the FOI Act. However, he declined to appear or participate in the proceedings. On that day, an application was made by the respondent agency for the Tribunal to receive evidence and hear argument in camera, as it were, pursuant to section 57(2) of the FOI Act. The Tribunal made orders that for the limited purposes of the section, the Tribunal would receive evidence and hear argument in the absence of the public and the review applicant. In addition, notwithstanding that the making of this proposed order was strongly contested by the applicant, the Tribunal ordered that where the subject report was being adduced, the Tribunal would receive evidence and hear argument in the absence of the review applicant's legal representatives. The Tribunal directed that the subject report was to be treated as a confidential document until further order.
7 By the time of the first day of the hearing, the respondent, through its representatives, had finally taken physical possession of the report and had read it. Confidential affidavits and exhibits were tendered and read in the absence of the public and the applicant. Copies of these affidavits and many of the exhibits were given by the respondent to the applicant's legal representatives who were present during the closed-session hearing on the day. Due to the limitations on the Tribunal in determining a review application pursuant to section 55 of the FOI Act and bearing in mind s 28(3), the Tribunal cannot in these reasons say anything that would disclose exempt matter under the FOI Act. As I have determined that the subject report does contain exempt matter for the reasons I shall set out in this determination, I must be constrained in what I say regarding the evidence and the report itself.
8 The hearing of these proceedings continued before the Tribunal on 29 October 2002. Submissions were heard in the morning of that day on the report itself in the absence of the public and the applicant's representatives. Other exhibits were tendered and both parties made very detailed submissions during the remainder of the day.
9 In stating its position to the Tribunal, the respondent sought to have the Tribunal withhold disclosure of the nature of the report, its contents and the facts and matters leading to the creation of the report and many of the events that occurred after its creation. In the circumstances, I consider that having regard to the terms of the original FOI determination, the internal review determination, and the written submissions of the respondent filed 27 September 2002, none of which were the subject of any confidentiality order, the respondent has already effectively admitted that there was such a report as was requested by the applicant and that the said report can be fairly said to be (at least in part) a report of a fact-finding investigation conducted in relation to an alleged sexual harassment claim by an employee of the respondent against a former general manager of the respondent.
10 The primary concern of the respondent, as expressed in paragraph 8 of its written submissions, is to ensure that the whole process of seeking to maintain confidentiality of the report is not rendered nugatory by debate about the contents of the report and the various documents pertaining to it.
11 The report itself is dated February 2002 and is 70 pages long. It is more than a fact-finding and investigation report regarding certain allegations. The author of the report was asked to and did provide a report containing findings of facts and advice or recommendations as to certain other matters relating to council business and compliance with certain legislation.
12 The report was drafted by Ms Helen Colby, a consultant employed by a private entity known as the Internal Audit Bureau Management Consulting Group. In her statement before the Tribunal, affirmed 21 August 2002, she set out her experience in undertaking public sector investigations such as the one leading to the creation of the subject report. She said she conducted these investigations in accordance with the policy and procedures set out in the firm's "Investigation Manual", an undated copy of which was tendered in evidence before me. She said she conducted the investigation in early 2002 and undertook face-to-face interviews with the complainant and six other persons and undertook a telephone interview with one other person. A total of eight persons were therefore contacted and interviewed by the investigator.
13 The evidence of Ms Colby was that in undertaking these interviews she advised each witness, inter alia, of the purpose of the interview and of what use would be made of the information provided. She said she gave an introduction to each witness to the effect that the evidence was being provided in confidence for the purpose of investigation of a complaint and that the person may be able to assist the investigation. She further advised each person interviewed that the Council may use the evidence to be provided "in the event that the matter went further" and that if, for example, industrial relations proceedings or anti-discrimination proceedings were to occur, the Council may use the evidence provided in those proceedings.
14 Ms Colby’s evidence was not challenged by the applicant at the hearing.
15 A statement was tendered at the hearing from Ms Margaret Lyons, the Executive Officer of the respondent council that was affirmed on 19 August 2002. That statement set out the history of the FOI application and the background to the commissioning of and creation of the report. It also set out some significant and highly confidential details relating to the departure of the then general manager from the council and of other possible legal proceedings that might occur in the future in relation to matters subject of the report, the nature of which I should say no more.
16 Ms Lyon's evidence was not challenged by the applicant. As to the factual matters leading to the departure of the then general manager of the council and the delivery of the report, it is sufficient for me to say that an article appeared in a periodical published by the applicant that was distributed throughout the local government area of the respondent in early February 2002 purportedly relating to the investigation and a then pending report. The council resolved at an extraordinary meeting to accept the resignation of the then general manager on terms set out in a confidential deed of agreement, a copy of which was before me and which was not available to the applicant's representatives. It is common ground that a public statement was then released by the Council stating, inter alia, that the general manager had announced his resignation, citing "recent adverse publicity about himself and the Council" and how this publicity might adversely affect then current proposals to alter the Council's boundary with the Sydney City. It stated further that the general manager "reiterated his belief that there was no substance to the complaints. However, he said that now the matter had been made public, the interests of Council, its staff all the individuals concerned were best served if he resigned."
17 Ms Lyon's statement then goes on to exhibit further articles published in the applicant's periodical in the following months concerning the former general manager and the report and other matters. Details of the other possible legal proceedings to which I referred earlier in this determination were set out in the statement, including a confidential copy of a document that might well lead to legal proceedings in the immediate future involving the Council and other persons who were interviewed for the creation of the report. These matters were unresolved as at the time of the Tribunal hearing.
18 Ms Lyon's evidence is that the Council, prior to the Tribunal hearing, gave consideration to whether or not part or parts of document could be released. It was said that certain parts of a document relate to council's various policies, each of which are public documents and available from the Council on request or pursuant to the FOI Act. As to the other parts of the report it was said to be impracticable, given the nature of the report and the strength of the claims for exemption, to undertake a line by line analysis of whether the material in a particular line could be released. It was said that even if such a lengthy exercise were undertaken, it would render the material a meaningless jumble of words which would not enable any reader to understand the report's contents, or, alternatively, it could lead to serious errors in interpretation. I agree. Having regard to the nature of the material contained in the report, I consider that deleting large parts of the report for possible release under the Act pursuant to section 25(4) would not be practicable.
19 Ultimately, in these proceedings, the respondent relied on the same exemptions cited by the internal reviewer as set out above. However, clause 10, legal professional privilege, was abandoned at the hearing. It was argued that the primary ground for exemption was the restricted documents ground, namely, certain subparagraphs of clause 4(1) and that the other grounds were less significant. I do not agree. As I see it, these proceedings may appropriately be determined solely by reference to clause 6, documents affecting personal affairs.
20 In addition to the oral argument that occurred at the hearing, both parties kindly provided the Tribunal with detailed written submissions.
The Personal Affairs Exemption
21 Section 6(1) of the FOI Act provides:
22 The exemption has been the subject of extensive judicial and Tribunal consideration (see, for example, Humane Society International Inc. -v- National Parks & Wildlife Service [2000] NSWADT 133 at [11] to [14] and Saleam -v- Director General, Department of Community Services [2002] NSWADT 41 at [38] –[53], and, on appeal at ibid , [2002] NSWADTAP 30 at [14]-[15]).
“Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).”
23 The respondent submitted that the report plainly deals with the personal affairs of a number of named persons and that, in the absence of express agreement of at least a number of those persons, disclosure of their identity and of the contents of the report would be unreasonable. In particular, it was argued at some length that the applicant would like to publish personal details from the report in its periodical and possibly in other media outlets and this was said to be a bad thing for a number of reasons. Accordingly, it was said that the motive of the applicant was a significant factor here going to the question of whether it would be reasonable to release the documents pursuant to clause 6.
24 The applicant argued that the respondent could not genuinely believe that the report concerned the personal affairs of any person as the respondent did not enter into the "reverse FOI Act" procedure contemplated by section 31 of the FOI Act. That section relevantly provides:
25 By the remaining subsections of section 31, if an agency determines, after having sought the views of the third party, that access to the subject document is to be given, access should be delayed, and certain other procedures are to occur so as to enable the third party an opportunity to review and/or appeal the decision to release the material.
“31 Documents affecting personal affairs
(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased).
(2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.
26 In proceedings concerning documents potentially effecting personal affairs, in cases where these third persons have not been notified by the agency, the Tribunal ordinarily makes orders for the agency to ascertain the views of the third persons. It may be, in some cases, that the third persons have a view relating to the original FOI application such that it would cause a decision maker to release the documents to the original FOI applicant (and therefore, arguably, to the public at large). In the present case, the respondent in effect argued, and I accept, that given the particular contents of the report, which I have read, and given the determination I was urged to make, there was no need to contact the third persons under the reverse FOI procedure so as to ascertain their views on the application.
27 The applicant argued that a claim of sexual harassment in the workplace of a public authority with elected officials by a senior employee of the authority is not a matter concerning the personal affairs of any person. It was said that it related to matters performed in a public workplace and not matters of private concern. I was referred to the decision of the Tribunal in A -v- Director General, Department of Health [2000] NSWADT 59 where the Tribunal decided that A’s name, which had appeared in an agency investigation report, was solely concerned with A’s duties at a hospital, and did not amount to “personal affairs”. That case was considered recently in Woods -v- Chief Executive Officer, State Rail Authority [2002] NSWADT 253 where the Deputy President of the Tribunal, at [36] to [47], canvassed the various lines of authorities concerning the question whether information about a person’s work performance ordinarily constituted a person’s “personal affairs”. Ultimately, the issue is a question of fact in each case.
28 Having read the report, I can say that it plainly relates to matters that occurred both at the Council and outside the Council. In many respects, the detail of which I cannot go into for the reasons stated, the private matters that occurred away from the Council to some extent informed events that occurred at Council premises. Accordingly, I consider that the report plainly concerns the personal affairs of a number of persons in that they comprise matters of private concern to them. In light of this finding, I do not need to enter into the interesting discussion about the scope of the exemption in relation to work performance or vocational competence documents in Woods’ case, ibid, at [45]-[46].
The Reasonableness of Disclosure
29 The applicant argued that it was reasonable for the report to be disclosed as there had already been significant publication of many aspects of it or, at least, relating to it published in its periodical. The respondent was not able to respond to this assertion in open submissions or in closed session with the respondent’s representatives at the Tribunal as it required direct reference to the contents of the report. When that did occur, the Tribunal was taken to those parts of the report that plainly led the Tribunal to accept the conclusion that the publicity did not necessarily reflect the full position or the complex factual matters that needed to be first addressed, before one could reasonably state that all these matters, or a significant portion of them, were already in the public domain. I do not consider that the contents of the report are already in the public domain.
30 In any event, both parties asked the Tribunal to take into account the motives of the applicant in seeking release of the report. The respondent, as I have indicated earlier, was concerned that the report would be selectively published by the applicant, and that would be a bad thing for a number of reasons. The applicant argued, inter alia, that discovery of the report was necessary to, as it were, clear the air, given matters raised in the existing published articles and to investigate further the circumstances of the termination of services of the former general manager.
31 In considering this question, I am to be guided by the general approach toward considering the public interest described by the President of the Tribunal in Saleam -v- Director General, Department of Community Services [2002] NSWADT 41 at [38]-[42]. It involves a consideration of all the circumstances of the case. As to the relevance of the claimed motives of the applicant in making the original FOI request, or, for that matter the possible motives of any of the participants to the creation of the report in published public articles, the President of the Tribunal has stated (ibid, at [46]&[47]):
32 The Appeal Panel agreed with this passage in Saleam -v- Director General, Department of Community Services [2002] NSWADTAP 30 at [14]-[15].
“The question of whether disclosure would result in the unreasonable disclosure of information concerning a person's personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though, not in my view, conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgment required of an agency or the Tribunal (on review) in considering whether cl 6 should be invoked.”
33 On the question of reasonableness, the applicant also argued, as I understood it, that the complainant would likely have no objection to the full release of the report to the applicant. Reliance was placed on some of the articles published in the applicant’s periodical. However, those published articles do not reflect the full picture as is set out in the report, and that person was not called to give evidence. Even if that person had been called, and even accepting what is put by the applicant, I doubt very much it would have been a conclusive factor taken alone. There would have needed to be a number of other persons coming forward to, in effect, agree to the release of the information before those submissions began to constitute weighty considerations in these proceedings. Further, having read the report carefully, I doubt very much that the complainant would truly wish to have all of the matters contained in it released to the public.
34 It was suggested that it might be regarded as unfair for the complainant not the see this report as a result of the FOI application as other action might have begun or might be taken by her and she should therefore see it. However, the FOI Act does not override or impact on rules relating to compulsory discovery or production of relevant documents to the parties concerned in disciplinary proceedings, industrial relations proceedings, anti-discrimination proceedings or any kind of legal or other proceedings where evidence is adduced. If any of the eight witnesses concerned in the creation of the report properly required the production of the report for the purposes of legal proceedings, they might well be entitled to production of it. Such rights are always available to be sought by parties properly concerned and calling on considerations such as this does not normally assist in making clause 6 FOI determinations.
35 The primary consideration that I have had regard to in the present case is the report itself. The report contains intimate and very detailed personal and private information concerning a number of persons. There is no persuasive reason put forward as to why it should be released, in effect, to the public. In all the circumstances, I determine that disclosure of it would involve unreasonable disclosure of information concerning those persons.
36 Having made that determination, I do not need to go on to consider the other claimed exemptions under the FOI Act. In deference to the lengthy arguments that were made by the parties in relation to them, I should make the following observations.
Clause 4 – Law Enforcement and Public Safety
37 The respondent strongly argued that the report was a restricted document within the meaning of clause 4(1)(a)(b)&(e) of Schedule 1 of the FOI Act (two sub-paragraphs of that clause relied on by the internal reviewer were abandoned by the respondent at the hearing). Clause 4 relevantly provides:
38 The respondent contended that there were a number of possible “investigations” that would be conducted by the respondent in light of the subject report, the details of which I cannot disclose in these reasons, and that they would constitute “contravention or possible contravention of the law” and concern “enforcement or administration of the law” within the meaning of clause 4. Some elaborate submissions and evidence of Ms Lyons was directed to this ground. It was submitted that the section applied to the kind of internal investigations and actions carried on or proposed to be carried on by the respondent and others here and they were appropriately characterised as “law enforcement” including the “policing of criminal laws or civil obligations” (cf: Watkins -v- Chief Executive, Roads and Traffic Authority [2000] NSWADT 11 at [39]).
“4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:
(2) A document is not an exempt document by virtue of subclause (1):
(a) to prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, or
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or …
(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or …
(a) if it merely consists of:
(b) if disclosure of the document would, on balance, be in the public interest. (my emphasis)”
(i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or
(ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or
(iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or
(v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and
39 On the face of it, I consider the functions of the respondent agency in the present case in attending to the creation of the report do not concern law enforcement by police agencies or any analogous situation within the meaning described by Smith JM in Watkins’ case at [39]. I note that this passage was recently considered and applied by the President of the Tribunal in BY -v- Director General, Attorney General's Department (No 2) [2003] NSWADT 37 at [51]-[52]. However, once the report was produced and once investigations had begun by other entities properly charged with policing criminal or civil obligations, there would then need to be careful scrutiny of any claim made under clause 4. In particular, the alleged “prejudice” to those investigations and methods would need to be plainly asserted and demonstrated, perhaps by the agency concerned (and not merely by the respondent agency). However, given my determination based on the personal affairs grounds, I do not need to finally determine this issue.
Clause 9 – Internal Working Document
40 At the hearing, the respondent relied, somewhat faintly and for the first time, on clause 9 of Schedule 1 of the FOI Act, which provides:
41 The respondent submitted that it had a duty to undertake the investigation leading to the report and that the report was made in the normal business of the Council. It might have been premature for the agency to rely on it in the present case in the absence of the respondent also seeking to demonstrate that the report was created in the course of, or for the purpose of, some specified decision-making function of the respondent. Merely to assert that there is a confidential report that has been commissioned might be insufficient for the purposes of seeking to make out a clause 9 exemption. It may be that there should be some evidence adduced that, for example, demonstrates relevant decisions are yet to be made by the Council (cf: Director General, Department of Community Services -v- Latham (GD) [2000] NSWADTAP 21). Given my determination based on the personal affairs grounds, I do not need to determine this issue.
“9 Internal working documents
(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
(b) would, on balance, be contrary to the public interest.
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency's policy document, or
(b) factual or statistical material.”
Clause 13 – Confidential Information
42 The respondent relied on clause 13(a) & (b) of Schedule 1 of the FOI Act which provides:
43 The respondent relied on both limbs of this exemption. As to the first limb, it was said that a document entered into between the former general manager and the council relating to his departure from the council (which is a confidential document in these proceedings) is sufficient to found an action for breach of confidence were the Council to disclose the report.
“13 Documents containing confidential material
A document is an exempt document:
(a) if it contains matter the disclosure of which would found an action for breach of confidence, or
(b) if it contains matter the disclosure of which:
(i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and
(iii) would, on balance, be contrary to the public interest.”
44 The ground for exemption in clause 13(a) has been considered a number of times by the Tribunal. In Bennett v Vice Chancellor, Unviersity of New England [2002] NSWADT 175 at [24]-[27], the Tribunal considered the exemption in the case of confidential information provided to a University. The Tribunal stated:
45 If these elements are satisfied, there is no need for the FOI decision-maker (or for the Tribunal) to go on to any public interest considerations in determining clause 13(a). In the present case, I consider that, in the case of the former general manager alone, the substantial part of the report dealing with him does appear to have the necessary quality of confidence about it. If there was ever any doubt that the information was conveyed in circumstances importing an obligation of confidentiality, they were dispelled when, before any report had been finalised or delivered to the Council, the confidential agreement to which I have referred was in fact drawn up and agreed to by the Council and the former general manager. Accordingly, the former general manager would probably have an action in contract or equity for breach of confidence, were the report to be released to the applicant.
“If a disclosure of the contents of a document would create a basis for an action for breach of confidence against the keeper of the record, the document is defined by cl.13(a) as an exempt document. An action for breach of confidence requires three fundamental elements. In Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 Megarry J said that, absent an express or implied contractual duty of confidence, a person may nonetheless bring an equitable action for breach of confidence if:
(a) The information concerned has "the necessary quality of confidence about it", which will usually be satisfied by proving that the information is not commonly or publicly known: Saltman Engineering (1948) 65 RPC 203 at 215 per Lord Greene MR;
(b) The information was conveyed in circumstances importing an obligation of confidentiality; and
(c) There is unauthorised use of the information by the recipient of it to the detriment of the party communicating it.”
46 In light of these comments on clause 13(a), I shall not go on to consider clause 13(b) and the more general claim for confidentiality combined with a public interest test. Were I required to, I would have applied the "public interest" test here to achieve the same result as in the personal affairs consideration above. The disputed report should not be released to the applicant.
47 As to whether the Tribunal should release the report in any event as a matter of the Tribunal's discretion in section 25(1) of the FOI Act (see, Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 at [76] to [85] referred to there as the "override discretion"), I consider that to the extent that such a discretion may now be said to exist (see, Neary v The Treasurer, New South Wales [2002] NSWADT 261) all the matters the Tribunal would ordinarily consider as going to the exercise of the discretion in the present case have already been taken into account in the Tribunal's consideration of the personal affairs exemption. Accordingly, I do not consider the exempt material should be released as a matter of the Tribunal's section 25(1) discretion.
48 Due to the unusual way in which these proceedings were conducted, being wholly heard in private session, and having regard to the confidentiality orders I made in these proceedings, to the extent I need to, I hereby revoke those confidentiality orders to the limited extent so as to permit this decision to be published as it presently appears. For the moment, I shall publish my determination only and these reasons shall be confidential for a limited period and will only be available to the respondent and to the applicant’s legal representatives. I will give the parties liberty to apply as to any further confidentiality orders they might seek. If no application is received and determined by the Tribunal within 14 days of today, these reasons for determination shall be published in their present form.
49 The Tribunal thereby determines:
(a) The reviewable decision is affirmed.
(b) These reasons for determination are confidential to the respondent and to the applicant’s legal representatives for 14 days from today and shall not be published for 14 days from today; and
(c) The parties have liberty to apply within 14 days of today as to any further confidentiality orders they might seek.
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