Norkin v University of New England (No. 2)

[2021] NSWCATAD 371

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Norkin v University of New England (No. 2) [2021] NSWCATAD 371

Hearing dates:

28 September 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1.The respondent’s decision dated 7 May 2021 is affirmed.

2. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

3. Publication of the confidential affidavits filed by the respondent in these proceedings and the matters contained in and exhibited to those affidavits is prohibited.

4. Disclosure to the Applicant of the confidential affidavits filed by the respondent in these proceedings and of matters contained in those affidavits is prohibited.

5. Pursuant to Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), s 63, Sch 3

Civil and Administrative Tribunal Act 2013, s 64

Government Information (Public Access) Act 2009 (NSW) ss 3, 4, 5, 9(1), 12, 13, 14, 15, 53, 54, 55, 80(d), 104, 105, 107, Sch 4

Privacy and Personal Information Protection Act 1998 (NSW), s 18

University of New England Act 1993 (NSW)

Cases Cited:

AEZ v Commissioner of Police [2013] NSWAADT 90

AFW v WorkCover Authority (NSW) [2013] NSWADT 51

APD v Commissioner of Police [2012] NSWADT 42

Battin v University of New England [2013] NSWADT 73.

Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Eyes v Wyong Shire Council [2015] NSWCATAD 214

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADTAP 50

Leech v Sydney Water Corporation [2010] NSWADT 198

Lonsdale v University of Sydney [2016] NSWCATAD 176

Marist Brothers St Joseph’s College v Transport for NSW [2020] NSWCATAD 288

McLennan v University of New England [2013] NSWADT 113

Neary v State Rail Authority [1999] NSWADT 107

Norkin v University of New England [2021] NSWCATAD 90

Raven v University of Sydney [2015] NSWCATAD 104

Selby v Commissioner of Police (NSW) [2013] NSWADT 61

Smolenski v Commissioner of Police [2015] NSWCATAP 235

Taylor v Destination NSW [2017] NSWCATAD 272

Transport for NSW v Searle [2018] NSWCATAP 93

Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10

Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175

Category:

Principal judgment

Parties:

Anton Norkin (Applicant)
University of New England (Respondent)

Also heard:
Information Commissioner (pursuant to the Government Information (Public Access) Act 2009, s 104(1))

Representation:

Solicitors:
Applicant (Self-represented)
Sparke Helmore Lawyers (Respondent)
Information Commissioner (Self-represented)

File Number(s):

2020/00221116

Publication restriction:

See orders 2 – 5 above.

REASONS FOR DECISION

Introduction

1. The Applicant seeks access to the following single piece of information from the University of New England pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act):

the “name (business or personal) of the contractor of the UNE who conducted the GTE assessment …”.

2. There is no controversy between the parties as to what this request means. The Applicant seeks to know the name of the contractor engaged by the University to assist in making inquiries as part of a Genuine Temporary Entrant (GTE) assessment which was, in turn, part of the enrolment process for a foreign student.

3. The Applicant’s request was originally made to the University on 30 January 2020. There has, since that date, been a long procedural history including a determination in April 2021 by the Tribunal, differently constituted, which remitted the request for reconsideration by the University; Norkin v University of New England [2021] NSWCATAD 90.

4. On 7 May 2021, the request having been remitted, a delegate of the University determined the request for access again. The conclusion of that determination was that the Applicant was not to have the information he had requested released to him.

5. That decision was made after a third-party consultation pursuant to GIPA Act, s 54. The authorised decision-maker recorded that:

“I have consulted with the third party who has confirmed that the information you seek is their personal information and their business, commercial, professional and financial information and they object to its release to you for the reasons that I have set out below.”

6. The University’s decision was made on the basis of seven grounds which refer to various items in the tables set out in the GIPA Act, s 14 Table (the Table). These grounds are listed and discussed further and in detail below.

7. Pursuant to the GIPA Act, s 104(1) and the CAT Act, Sch 3, cl 9(4)(a) the Information Commissioner appeared at the hearing in this application and made submissions to assist the Tribunal with respect to the determination of the correct and preferrable decision of this matter under Administrative Decisions Review Act 1997 (NSW), s 63. The Information Commissioner’s submissions are primarily directed to the application of the Table, cl 3(a) and 3(f) and the considerations in GIPA Act, s 13. Those submissions were of assistance to the Tribunal with respect to those matters.

Issue to be Determined

8. The role of the Tribunal in hearing the application for review is to decide the correct and preferable decision having regard to the material before it, including relevant factual material and the applicable law: Administrative Decisions Review Act 1997, s 63(1).

9. There is one substantive issue to be determined; is the Applicant entitled to obtain the information he has sought?

10. After considering the relevant facts and applicable law, the answer to that is that the Applicant is not entitled to access the information because there is an overriding public interest against disclosure.

Evidence and Findings of Fact

11. The University read and relied upon three affidavits from two witnesses.

12. The first witness was the Director of UNE International. I shall not refer to this person other than by role since part of her evidence is the subject of suppression orders. The Director made two affidavits, one was confidential, the other not. I received the non-confidential written and oral evidence by the Director in open hearing including her evidence in cross-examination. In addition, I read and heard evidence from the Director in a confidential session in the absence of the Applicant. The second, confidential, affidavit of the Director was marked as Exhibit Conf-1.

13. The third affidavit read by the University is also the subject of suppression orders made at the commencement of the hearing. This affidavit, which was marked as Exhibit Conf-2, was made by the Chief Communications Officer (CCO) of the contractor to the University (Contractor) whose name was the only information sought by the Applicant under his request. As with the University’s other witness, I will refer only to this witness by title.

The Director’s Evidence

14. The Director gave oral evidence via telephone and was cross-examined by the Applicant. From listening to the Director’s evidence, I formed the impression that she was an informative and knowledgeable witness who made a genuine effort to answer all questions put to her in cross-examination.

15. The effect of the Director’s oral evidence given at the hearing, including under cross-examination, was that University’s use for GTE assessments arises from its participation in a framework known as the Simplified Student Visa Framework (SSVF).

16. Relevantly, the SSVF sees the University making its own inquiries as to whether a prospective international student might qualify for a grant of a student visa in the event that a formal offer of admission is made. By way of explanation of what a student visa application may entail, the Director’s non-confidential affidavit exhibited an overview of the Subclass 500 Student Visa from the Department of Home Affairs website. Exhibited to her non-confidential affidavit was a factsheet for educational providers concerning the SSVF. The Director’s non-confidential affidavit mirrored the oral evidence given at the hearing on this issue.

17. The GTE assessment process features an “evidence level” which is allocated to each registered educational provider based on the “migration outcomes” of international students enrolled with the education provider in the previous six-month period.

1. Migration outcomes include, according to the Director’s evidence, the number and the rate of student visa applications which are refused due to fraud and which are lodged overseas.

2. Each country from which prospective students come is also allocated an “evidence level” based on the migration outcome of that country.

18. The Applicant cross-examined the Director about the different treatment of students depending on their nationality. The Director conceded that students were indeed treated differently in accordance with the evidence levels pertaining to their home country and that this was according to the requirements notified by the Department of Home Affairs.

19. For a prospective international student subject to the GTE assessment process, the country and the provider’s evidence levels are combined and then used as a guide for the level of documentary evidence that student is required to provide with their application for a student visa. The Director’s evidence was that this process, at least in some circumstances, can assist students in streamlining an application for a student visa.

20. The Director’s oral evidence about the GTE assessment process and evidence levels was to the following effect:

1. The University is the decision-maker in the GTE assessment process;

2. The University uses a contractor’s report and recommendations as part of the relevant material to be considered in the GTE assessment process;

3. Only employees of the University liaise with students, student migration agents, and the GTE assessment contractors. There is no contact directly between the students or student migration agents and GTE assessment contractors.

21. As part of the steps taken by the University to undertake a GTE assessment process of prospective students from countries with a high immigration risk, the Director gave evidence that the University engages an external contractor to inquire or give recommendations about four things;

1. Firstly, whether the applicant is a genuine student;

2. Secondly, whether the applicant has an appropriate level of English;

3. Thirdly, whether the applicant has sufficient funds to support themselves and their dependants while living in Australia; and

4. Finally, whether the applicant is a genuine temporary entrant to Australia.

22. The object of the Applicant’s request is to know the name of the University’s external contractor who undertook these types of investigations.

23. The non-confidential evidence of the Director was further to the effect that there existed an industry practice of confidentiality with respect to engagement and name of the GTE assessment contractors. The Director’s evidence was to the effect that the University and other institutions she is aware of never disclose the identities of the contractors engaged for GTE assessments. Specific to the University of New England, the Director’s evidence was that there is no contact made between a contractor and prospective students or any person representing a prospective student.

24. None of the Director’s evidence concerning the GTE assessment process or the use of contractors was challenged by the Applicant in cross-examination, nor was the Director’s evidence on this topic illogical or unlikely. On that basis, I accept as a matter of fact, the matters set out concerning the GTE assessment process, the evidence levels maintained by the University, the checking process which the external contractor undertakes at the request of the University, the fact that the University never discloses the identity of the external contractor and that there is no contact made between the external contractor and any prospective student in the course of the contractor’s work.

25. In non-confidential written evidence, the Director expressed concerns about the fact that release of the Contractor’s name would be unconditional. The concern arose because the Applicant is a registered education agent whose role is to recruit and assist international students in applying to universities and other institutions in Australia. This evidence is relevant to considerations under GIPA Act, s 15(e) and s 55 and I have taken account of the concerns expressed by the Director relevant to those provisions.

26. On the basis of the Director’s non-confidential evidence, I further find that;

1. the Contractor was engaged by the University on a confidential basis to undertake tasks that were sensitive in nature pertaining to the GTE assessment;

2. the University needs to maintain confidentiality with respect to the identity of the contractors it engages for this purpose; and

3. the role played by the Contractor is pivotal to the integrity of the GTE assessment system and the desirability that such contractors are not identified or subject to the stated concerns of lobbying, pressure or the payment of bribes.

27. I note the University’s concerns about the release of the information to a person, such as the Applicant, who may be described, neutrally, as being in the business of assisting prospective international students navigate the Australian migration system and have taken this into account. However, there was no evidence before me, and I expressly do not find, that the Applicant personally, would subject the Contractor to pressure or bribery.

28. The Director’s non-confidential evidence was that the University performs GTE assessments diligently in order to keep the evidence level for the University as low as possible. According to the Director’s evidence, a low evidence level gives the University a competitive advantage in the “international student recruitment market” since, the lower the evidence level required, the less documentation a student may need when applying for a student visa. The Director’s evidence was that applying to an education provider with a low evidence level is particularly attractive to students applying from countries which have a high evidence level. The Director under cross-examination gave evidence which was consistent with the non-confidential affidavit.

29. [NOT FOR PUBLICATION]

30. Consequently, I find that the University has a genuine commercial and reputational interest in ensuring it retains a low evidence level with respect to the international student recruitment market.

The Contractor’s Evidence

31. The CCO gave sworn written evidence and also gave oral evidence to the Tribunal in a private session of the hearing.

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

36. [NOT FOR PUBLICATION]

37. [NOT FOR PUBLICATION]

38. [NOT FOR PUBLICATION]

39. [NOT FOR PUBLICATION]

40. [NOT FOR PUBLICATION]

The Law

Parties, Review and Onus

41. The decision of 7 May 2021 is a reviewable decision; GIPA Act, s 80(d) and the Applicant seeks administrative review of that decision pursuant to the GIPA Act, s 100. As noted above, the Tribunal is to determine the correct and preferrable decision having regard to the material before it, including relevant factual material and the applicable law.

42. The University is a public authority; University of New England Act 1993 (NSW) and therefore an “agency” for the purposes of the GIPA Act; s 4(1); Sch 4, s 2(1).

43. As the decision-making agency, the University bears the onus of establishing that its decision to refuse access to a document disclosing the name of the contractor is justified; GIPA Act, s 105(1).

Third Party Consultation

44. Consultation pursuant to the GIPA Act, s 54 has occurred in this case with the Contractor.

45. The result of that consultation was that the Contractor objected to the release of its name. That objection remains.

46. [NOT FOR PUBLICATION]

The Presumptions in Favour and Against Disclosure

47. There exists a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure; GIPA Act, s 5.

48. A person who makes a valid application for access to government information has a legally enforceable right to be provided with access to that information unless there is an overriding public interest against disclosure; GIPA Act, s 9(1).

49. The presumption in s 5 and the right created in s 9 of the GIPA Act give effect to the object stated at GIPA Act, s 3(1)(c) which provides that access to government information should only be restricted where there is an overriding public interest against disclosure.

50. The finding of an “overriding public interest against disclosure” requires a balancing between considerations in favour and against disclosure; GIPA Act, s 13; Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].

51. The operation of the GIPA Act, s 5 and s 12 recognise the significance of the presumption in favour of disclosure which applies without limitation, in every case. Such consideration should be accorded, therefore, “significant weight” when determining whether access to information should be granted; Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89]; Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [48].

52. The balancing of those considerations should favour disclosure; Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. Yet the process is not a matter of mere mechanistic tabulation; rather the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at [94]; Battin v University of New England [2013] NSWADT 73 at [74]. That process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in the GIPA Act, s 15: Transport NSW v Searle [2018] NSWCATAP 93 at [104].

53. GIPA Act, s 14 sets out the considerations against disclosure. The only material where there is a conclusive overriding public interest against disclosure are described in the GIPA Act, Sch 1. There is no material in these proceedings to which a conclusive overriding public interest against disclosure applies. This case concerns the so-called other considerations that may be taken into account as set out in the Table in s 14.

54. The determination of whether there exists an overriding public interest against disclosure also requires consideration of the matters set out in GIPA Act, s 15. Those principles are clear and do not require further elucidation.

55. The GIPA Act, s 55, provides that the Tribunal can consider the Applicant's motives for making the application. The considerations in GIPA Act, s 55 can apply in favour of, or against, disclosure and are relevant only to the effects referred to at clauses 2 to 5 of the Table; Smolenski v Commissioner of Police [2015] NSWCATAP 235 at [54] - [55].

“Could reasonably be expected”

56. Before the Tribunal, the University cited various public interest considerations against disclosure under GIPA Act which are provided in clauses of the Table. Meeting the clauses contained in the Table does not lead conclusively to a determination of an overriding public disclosure. The chapeau to clause 1 of the Table contained within the GIPA Act, s 14 is illustrative:

“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 (whether in a particular case or generally):”

57. The Tribunal is called upon to examine whether the effect, set out in a relevant clause of the Table, is established and then to ask whether the disclosure “could reasonably be expected” to have the specified effect; Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [30]. That phrase is to have its ordinary meaning and requires the decision-maker determine as to whether it is reasonable to expect that disclosure would have the relevant effect. The word reasonable, in that context, means something that is not irrational, absurd or ridiculous; Transport for NSW v Searle [2018] NSWCATAP 93 at [68].

58. Something more than a mere risk or chance is required, there must be real or substantial grounds which are more probable than not; Leech v Sydney Water Corporation [2010] NSWADT 198 at [28]; Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited.

The balancing of matters required under the GIPA Act

59. The Tribunal is required, in conducting the balancing analysis under GIPA Act, s 13, to have regard to the following matters:

1. the objects of the legislation contained in GIPA Act, s 3;

2. the presumption in favour of disclosure of government information as provided by, in particular, GIPA Act, s 5 and s 12 – those considerations to be given significant weight;

3. the considerations in s 14; and

4. to the principles set out in section 15 of the GIPA Act

to determine whether there is an overriding public interest against disclosure or whether the presumption in favour of disclosure prevails.

60. I have adopted the approach outlined in Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104], in setting out the competing public interest considerations for and against disclosure, attributing weight to each consideration and to determine the balance in the light of such weighting.

Considerations in Favour of Disclosure

61. The University made brief submissions identifying those considerations it considered to be in favour of disclosure.

62. In addition to the objectives set out in the GIPA Act, s 3, I consider the public interest considerations in favour of disclosure in this case are as follows:

1. the general public interest in favour of disclosure of government information;

2. that the disclosure may or could reasonably be expected to inform the public about the operation of the University and its practices in dealing with the public – including the Applicant.

3. the personal factors of the Applicant, in particular that he seeks access to information in order to know who has received information he submitted to the University and which he may have believed would not have been given to any other entity.

Submissions Against Disclosure

63. In submissions before this Tribunal and as set out in the reviewable decision, the University relied on the following public interest considerations against disclosure provided by reference clauses in the Table;

1. 1(f) prejudice the effective exercise by an agency of the agency’s functions;

2. 1(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed);

3. 3(a) reveal an individual’s personal information;

4. 3(b) contravene an information protection principle or a Health Privacy Principle;

5. 3(f) expose a person to a risk of harm or of serious harassment or serious intimidation;

6. 4(a) undermine competitive neutrality in connection with any functions of an agency; and

7. 4(d) prejudice any person’s legitimate business, commercial, professional or financial interests.

Analysis

64. In determining the correct or preferrable decision, the Tribunal is not limited to considering only those matters submitted by the parties. Having reviewed the other clauses in the Table, I have concluded that the clauses identified by the University are the most relevant. I will therefore address each of those considerations below by reference to the particular clauses in the Table.

Public Interest Considerations Against of Disclosure

Clause 1(f) prejudice the effective exercise by an agency of the agency’s functions

65. This public interest consideration applies where an agency can establish that the release of information could cause prejudice to the effective exercise of one or more of its functions.

66. On the evidence of the Director, I accept that the GTE assessment process is one of the functions undertaken by the University as part of its admissions process relevant to foreign students.

67. The University submitted that the prejudice to its functions arose in four ways:

1. Firstly, that disclosure would compromise the integrity of the GTE assessment.

2. Secondly, and flowing on from the issue above, that the University’s ability to recruit students from high immigration risk countries would be impaired;

3. Thirdly, that adverse publicity in respect of the external contractor’s role in the GTE assessment process could be reasonably expected to prevent prospective students from applying for admission to the University; and

4. Fourthly, the disclosure could prejudice the commercial and business interests of the University.

68. Taking into consideration the non-confidential sworn evidence of the Director and material contained in confidential evidence given by the CCO, I find that the release of the contractor’s details could be reasonably expected to compromise the integrity of the GTE assessment process undertaken by the University and to which it receives assistance from the Contractor.

69. Having regard to the evidence given by the Director the CCO, I find that it could reasonably be expected that, if the integrity of the GTE assessment process were compromised then this would impair the ability of the University to recruit students who originate from high immigration risk countries. The Applicant did not challenge the Director’s evidence on any aspect concerning this point.

70. There was no evidence to support the University’s third basis that there would be adverse publicity in respect of the contractor’s role and as such, I do not accept that submission.

71. The impact on the commercial and business interests of the University is a relevant fact under clause 1(f) of the Table; Lonsdale v University of Sydney [2016] NSWCATAD 176. The evidence, which I accept, establishes that the disclosure of the Contractors name would prejudice the University’s commercial and business interests.

72. I am satisfied that the University has established that this public interest consideration against disclosure applies in relation to the information requested by the Applicant.

Clause 1(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or, on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed);

73. The University submits that the investigation activities were carried out by the Contractor on its behalf and that disclosure of the Contractor’s name would prejudice the effectiveness or integrity of its GTE assessment process.

74. The University submits that, in order to meet the public interest consideration against disclosure under clause 1(h), the following elements are required:

1. Prejudice to the conduct, effectiveness or integrity of any audit, test, investigation or review;

2. Conducted by or on behalf of the agency;

3. By revealing its purpose or results;

4. Whether or not the investigation is commenced and whether or not it is completed.

75. The University’s contention that clause 1(h) applies is not made out because:

1. The disclosure of the Contractor’s name would not cause the purpose of the investigation to be revealed. The purpose of the Contractor’s role in the GTE assessments was a matter of non-confidential evidence; and

2. The result of the Contractor’s inquiry may be confidential, though the ultimate outcome of that inquiry is communicated to the prospective student. There was no evidence to establish that disclosure the Contractor’s name would reveal the result of its inquiries.

76. Accordingly, I do not consider that this public interest consideration against disclosure would apply in relation to the information requested by the Applicant.

Clause 3(a) reveal an individual’s personal information

77. “Personal information” is a term defined in the GIPA Act, Sch 4, cl 4. The definition is:

4 Personal information

(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, including the individual's position title, public functions and the agency in which the individual works) 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.

78. It is apparent from the CCO’s evidence that the names and other employment information of the CCO and other employees of the Contractor could be readily ascertained if the Contractor’s name were to be disclosed.

79. The Applicant seeks the name of the Contractor and relies expressly on the exclusion provided in the GIPA Act, Sch 4, cl 4(3)(b) to the effect that a name, in and of itself, is not personal information.

80. Contrary to the Applicant’s submissions, the exclusion of a name from the definition of personal information does not squarely apply in this case. The Applicant seeks disclosure of a “the name (business or personal) of the contractor who conducted the GTE assessment …”. In AFW v WorkCover Authority (NSW) [2013] NSWADT 51, a document called the “key personnel register” which recorded the names scheme agents was released by order of the Tribunal. The basis of that release was the finding that the scheme agents were in fact exercising public functions of the agency. The activities of the Contractor and its staff do not amount to the exercise of public functions of the University. It was established, from the Director’s evidence, that the University exercises the public function, it undertakes the assessment and relies on the Contractor and the Contractor’s staff to assist in some aspects of the GTE assessment process.

81. The following should be considered where the exclusion relied upon by the Applicant under the GIPA Act, Sch 4, cl 4(3)(b) cannot be found to apply:

1. Under the GIPA Act, s 12(3) and s 14(3), the Information Commissioner may issue guidelines to assist agencies about public interest considerations – for and against disclosure.

2. Agencies must have regard to the Information Commissioner’s Guidelines when making their decisions. Guideline No. 4 pertains to personal information.

3. At paragraph 1.2 of Guideline No. 4, the Information Commissioner provides a non-exhaustive list of personal information – the list includes names.

82. The University submits, by reference to the Information Commissioner’s Guideline 4, that a name can be personal information in these circumstances. Having regard to the matters set out above, I agree with that submission and conclude that in this instance, the name of the Contractor is personal information.

83. Of more practical importance is the effect of disclosure of the Contractors names on individuals who are employed by it. In Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175, the Tribunal at [50] to [53] found that the disclosure of a corporate name would readily allow the names of employees of a company to be ascertained via an internet search. The evidence on this application is to a similar effect and was not contested by the Applicant as being otherwise. The Director’s evidence was to the effect that revealing the Contractor’s business name would enable the Applicant or any other person to ascertain the identity of employees of that business and consequently the names of those persons involved in carrying out investigative work and making recommendations to the University would also be revealed.

84. While the University concedes that the business name of the Contractor is publicly available on a website, the disclosure of the Contractor’s name in the context of the Applicant’s request would then lead to personal information pertaining to its employees and the work they undertake being revealed. The present situation may be distinguished factually from the decision of the Tribunal in Eyes v Wyong Shire Council [2015] NSWCATAD 214. In that case, there was a finding that a report, being the subject of a request for disclosure, had been made publicly available on another agency’s website. Here, the Applicant seeks to know the identity of the contractor who carried tasks relevant to a particular assessment. The evidence was that this type of work is performed by particular individuals who are employees of the Contractor and that those persons are not publicly identified by reference to specific tasks they undertake.

85. While disclosure of the business name of the Contractor is not “personal information”; Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADTAP 50 at [13] – [14], the nature of the disclosure in the present context would reveal personal information about its employees, including their functions, roles and names.

86. I find that the disclosure of the Contractor’s name will inevitably reveal the fact that the Contractor undertakes this type of work which it has contracted to do on a confidential basis and that the individuals who undertake these tasks as employees of the Contractor will also be identified. I am therefore satisfied that the University has established that this public interest consideration against disclosure applies in relation to the information requested by the Applicant.

Clause 3(b) contravene an information protection principle under the Privacy and Personal Information Act 1998

87. On the basis that the disclosure of the Contractor’s name is personal information since its disclosure could be used to ascertain the names of its employees, the University also relies on the Table cl 3(b) as a further consideration against disclosure.

88. The University submits that the information protection principle contained in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), s 18 prohibits the University from disclosing personal information to a person unless an exception applies and that, relevantly, none of the exceptions apply.

89. The exceptions to the PPIP Act, s 18 are, in summary, concerned with the circumstances in which personal information is collected or in other words whether;

1. confidential or expected to be disclosed,

2. there would be expected to be an objection to such disclosure by the person whose information is to be disclosed; and

3. whether there is a necessary basis for disclosure in serious or emergency circumstances. It is clear that none of those exceptions apply in this case.

90. In this regard, the evidence has established that:

1. both the University and Contractor expect and rely upon the non-disclosure of the Contractor’s identity;

2. the Contractor manifestly objects to disclosure; and

3. there is no emergency or imminent threat to life or health which would justify disclosure.

91. Having concluded above that the disclosure of the Contractor’s name would reveal personal information of and in particular its employees, I also conclude that the University has established this public interest consideration against disclosure applies in this case.

Clause 3(f) expose a person to a risk of harm or of serious harassment or serious intimidation

92. The University contends that there is an objectively ascertained risk of harm, a serious risk of harassment or a serious risk of intimidation if the disclosure were made. As such, the University contends, the public interest consideration against disclosure under the Table, cl 3(f) arises.

93. The University relies on the non-confidential affidavit of the Director and on the confidential evidence to support this contention. There was no evidence that the Applicant personally was likely to harm, seriously intimidate or seriously harass the Contractor. At its highest, the evidence before me suggested that, because the nature of the Applicant’s business, it was possible that the disclosure to him would lead to harm or serious intimidation or serious harassment by others.

94. Regard to the text of the Table, cl 3(f) shows that harm, serious harassment or serious intimidation are to be separately considered.

95. I was referred to AEZ v Commissioner of Police [2013] NSWADT 90 at [85] where the meaning of the word harm was considered to be confined to:

“…a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. The evidence before me, both confidential and non-confidential does not in my opinion meet this high bar. The evidence is largely subjective and while I consider the concerns are genuinely held, I cannot conclude from that evidence that the risk of harm, on an objective basis is of such seriousness that

96. The terms “harassment” and “intimidation” are closely related; often one will be included in the definition of the other. The Tribunal in AEZ, after considering an array of legislative, dictionary and case law definitions concerning those words found the following distinctions;

1. as to the word harassment, the common element was that a person would be offended, humiliated or intimidated by the conduct with the conduct being repeated; and

2. as to the word intimidation, that word connoted harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety or ongoing behaviours that are found to be threatening or disturbing.

97. Serious intimidation or harassment is considered to mean behaviour of that ilk which is “heavy, weighty or grave, and not trifling or transient" Marist Brothers St Joseph’s College v Transport for NSW [2020] NSWCATAD 288 at [60]; Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 at [100]. These definitional thresholds create a high bar for the party asserting that the consideration in the Table, cl (3)(f) applies. As the University notes in its written submission, the Tribunal needs to be satisfied that the severity or level of consequences that would result in the information being released would reasonably be expected to expose a person to a risk of harm, serious harassment or serious intimidation.

97. Having regard to my factual findings as set out above, I do not consider this consideration applies in this case.

Clause 4(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise places an agency at a competitive advantage or disadvantage in any market

99. The University submitted this consideration applied because the University competes with other universities and educational institutions in the marketplace for international students and the disclosure of the Contractor’s name would place the University at a competitive disadvantage or undermine its competitive neutrality in respect of its function.

100. The University in this case has established on the evidence that it will be placed at a competitive disadvantage with other institutions with respect to its ability to enrol international students if it is unable to ensure the name of the Contractor remains confidential. The evidence by reference to its competition with other universities and educational institutions was not speculative in nature; rather, as I have found above it was probable that this disadvantage would arise.

101. I note that this case is unlike Raven v University of Sydney [2015] NSWCATAD 104 at [105] – [109]. That case concerned a request for information and documents associated with ethics applications for a clinical research trial where the little or no evidence was adduced at hearing about the competitive market in which the clinical trial was to take place.

102. On that basis, I have concluded that on disclosure of the Contractors name there is a likelihood of a detrimental impact on the competitive position of the University and that this consideration applies in favour of there being an overriding public interest against disclosure.

Clause 4(d) prejudice any person’s legitimate business, commercial professional or financial interests

103. Given my findings with respect to cl 1(f), to the effect that the disclosure could prejudice the University’s commercial and business interests, I consider this finding applies with some weight in respect of this consideration.

104. Clause 4(d) refers to “any person’s” interests. Formerly, this consideration and its predecessors have applied almost exclusively with respect to the information of entities other than the agency the subject of the request for information; McLennan v University of New England [2013] NSWADT 113. Giving full effect to the text of cl 4(d), the business and other interests of other persons, notably the Applicant and the Contractor should be taken into account in respect of this consideration.

105. No prejudice is disclosed concerning the Applicant’s relevant interests. However, I note that the application appears to stem from the fact that the Applicant’s name and information was provided to the Contractor, and he wished to know who had received his information.

106. [NOT FOR PUBLICATION]

Is there an Overriding Public Interest Against Disclosure?

107. On the basis of my findings, the public interest considerations against disclosure are that;

1. The disclosure would prejudice the effective exercise by the University of its functions. For the reasons set out above, it is my view that this consideration has significant weight.

2. The disclosure would reveal an individual’s personal information. Specifically that in revealing the name of the Contractor, the names and other employment information of the CCO and other employees of the Contractor could be readily ascertained as a result of that disclosure. I accept that a mere name may not be personal information, but the disclosure of the name will reveal other information of a personal nature. While I consider this consideration applies, I do not give much weight to it.

3. The disclosure could result in a contravention of an information protection principle though, because of my reasoning above, I do not attribute very much weight to this consideration.

4. It is probable that the disclosure would undermine competitive neutrality in connection with any functions of an agency. The evidence, which I have accepted, clearly points to this, and I give this consideration considerable weight.

5. It is probable that the disclosure would prejudice the legitimate business, commercial or financial interests of the University and the Contractor. As set out above, I have given this consideration significant weight.

108. I have set out at paragraph 62 those considerations in favour of disclosure which I consider are relevant in this case. The release of the Contractor’s name will not enhance government accountability, nor will the release of the name provide further information to the Applicant or the public concerning the policies and practices of the University; APD v Commissioner of Police [2012] NSWADT 42.

109. Having regard to:

1. the considerations both for and against disclosure as set out above; and

2. the principles set out in the GIPA Act, s 15,

I have concluded that on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, and applying s 13 of the GIPA Act, there is an overriding public interest against disclosure of the Contractor’s name.

Conclusion

110. Accordingly, and for the reasons set out above, I find that the decision of the University dated 7 May 2021 which decided that the Applicant is not to have the information he had requested released to him, is the correct and preferrable decision.

111. On that basis I will make orders affirming the decision of the University which is the subject of this application.

Orders

112. The respondent’s decision dated 7 May 2021 is affirmed.

113. Pursuant to Civil and Administrative Tribunal Act 2013, s 64(1)(c) and s 64(1)(d), the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

114. Publication of the confidential affidavits filed by the respondent in these proceedings and the matters contained in and exhibited to those affidavits is prohibited.

115. Disclosure to the Applicant of the confidential affidavits filed by the respondent in these proceedings and of matters contained in those affidavits is prohibited.

116. Pursuant to Civil and Administrative Tribunal Act2013 (NSW), s 64(1)(c) and s 64(1)(d), the transcript and recording of the hearing of those parts of the hearing which took place in private and in the absence of the Applicant are not to be published or released to the Applicant or the public.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 December 2021