Polden v University of Sydney

[2016] NSWCATAD 201

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Polden v University of Sydney [2016] NSWCATAD 201
Hearing dates:	10 March 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision of the University of Sydney to refuse to provide the Applicant with access to salary information regarding the Executive Director of Sydney University Sport and Fitness and the Acting Finance and Administration Manager of Sydney University Sport and Fitness is set aside. (2) In place of that decision, the decision is made that the information is to be released 28 days from the date of this decision. (3) The decision of the University of Sydney is otherwise affirmed.
Catchwords:	Government Information – access to government information – whether information is held by agency – personal information - whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure
Legislation Cited:	Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Privacy and Personal Information Protection Act 1998 University of Sydney Act 1989
Cases Cited:	ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, (2014) 254 CLR 1 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) HCA 45, 173 CLR 231 Commissioner, NSW Police Force v Camilleri [2012] NSWADTAP 19 Farrell v Mulroney [1978] 1 NSWLR 221 Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346 Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QlCmr 2 Luxford v Department of Education and Communities [2016] NSWCATAD 118 Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227
Category:	Principal judgment
Parties:	Alexander Polden (Applicant) University of Sydney (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: A Polden (Applicant in person) Heesom Legal (Respondent)
File Number(s):	1510495

Reasons for decision

Background

1. Mr Polden, the Applicant made an access application to the University of Sydney (“the Respondent” or “the University”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) in the following terms:

I am requesting a detailed breakdown of salaries and expenses of the directors, presidents, executive and management staff of the University of Sydney Union and Sydney University Sport and Fitness for the last two years.

This includes but is not limited to:

a)   salaries or honorariums paid;

b)   preferential business arrangements;

c)   rental arrangements;

d)   travel arrangements such Cabcharge receipts;

e)   other expenses claimed;

f)   details of corporate credit card use and conditions.

2. The University determined that:

a)   it held salary information regarding the Executive Director of SUSF (Robert Smithies) and the Acting Finance and Administration Manager of SUSF (Aleksandra Pozder);

b)   it does not hold any salary information regarding any other directors, presidents, executive and management staff of the USU or SUSF; and

c)   it does not hold any information falling within the Applicant's categories (b) to (f) in relation to any of the directors, presidents, executive and management staff of the USU or SUSF, including Mr. Smithies and Ms Pozder.

3. The University decided:

• under section 58(1)(b) GIPA Act that some of the information sought is not held by the University.

• Under section 58(1)(d) of the GIPA Act, to refuse to provide the Applicant with access to some of the information sought because there is an overriding public interest against its disclosure.

4. The Applicant has applied to the Tribunal for external review of the University’s determination.

The Issues for determination

5. The parties are in general agreement in regard to the issues for decision. The issues can be expressed in the following terms:

In respect of information held by the University of Sydney Union ('USU') and Sydney University Sport and Fitness ('SUSF'):

a) Are either or both of the USU and SUSF to be regarded as part of and included in the University for the purposes of the GIPA Act?

b)   If the answer to (a) is 'yes', should the decision be remitted to the University for reconsideration?

In respect of information held by the University:

a)   What are the public interest considerations in favour of disclosure?

b)   What are the public interest considerations against disclosure?

c)   Is there an overriding public interest against disclosure?

d)   Should the Tribunal affirm, vary or set aside the University's decision?

Applicable legislation

6. The Tribunal’s role is to conduct an administrative review of reviewable decisions of an agency under the Administrative Decisions Review Act 1997 ("the ADR Act") upon application by a person who is aggrieved by a reviewable decision of an agency. Pursuant to section 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

7. Subsection 3(1) of the GIPA Act provides:

(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.

8. Subsection 3(2) of the GIPA Act provides:

(2)    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.

9. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act, unless there is an overriding public interest against disclosure. Section 12 provides:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

(2) 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.

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.

(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.

10. Section 13 provides that there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

11. With limited exceptions, the public interest considerations listed in the table to section 14 of the GIPA Act are the only considerations that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. Section 14 provides:

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) 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.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

12. Clause 3 of the table to section 14 provides:

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,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ,

(c)    prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d)    prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,

(e)    reveal false or unsubstantiated allegations about a person that are defamatory,

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

(g)    in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.

13. The term 'personal information' is defined in clause 4 of Schedule 4 to the GIPA Act as follows:

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) 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.

14. Section 4(1) of the Privacy and Personal Information Protection Act 1998 ('PPIP Act') defines “personal information” as:

4 Definition of “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 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 that is contained in a publicly available publication,

(c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

(d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

(e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994 , or that has been collected in the course of an investigation arising out of a public interest disclosure,

(f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997 ,

(g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

(h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990 ,

(i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009 ,

(j) information or an opinion about an individual’s suitability for appointment or employment as a public sector official,

(ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000 ,

(k) 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 subsection.

(4) For the purposes of this Act, personal information is "held" by a public sector agency if:

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998 .

(5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.

15. Section 5 of the PPIP Act provides:

5 Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 .

(2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

16. Section 18 of the PPIP Act provides for limits on disclosure of personal information:

18 Limits on disclosure of personal information

(1)    A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a)    the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)    the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)    the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

17. Section 25 of the PPIP Act provides.

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ).

18. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in section 15 of the GIPA Act which provides:

(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.

19. A decision to provide access or to refuse to provide access to information in response to an access application is a reviewable decision under section 80(d) of the GIPA Act. A decision that government information is not held by the agency is a reviewable decision under section 80(e) of the GIPA Act.

20. Section 105 of the GIPA Act provides:

105 Onus on agency to justify decisions

(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.

21. It is common ground that the University is a public authority for the purposes of the GIPA Act. The term ‘public authority' is defined in clause 2 of Schedule 4 to the GIPA Act as follows:

2 Public authorities

(1) In this Act, "public authority" means:

(a) a statutory body representing the Crown, or

(b) a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument, or

(c) the NSW Police Force, or

(d) the Teaching Service, or

(e) a State owned corporation, or

(f) a wholly-owned subsidiary of the Crown in right of the State or of a public authority, or

(g) a body declared to be a public authority by a regulation under this clause.

(2) The regulations may declare any of the following bodies to be a public authority:

(a) a body (whether incorporated or unincorporated) established for a public purpose otherwise than by or under the provisions of a legislative instrument,

(b) a body (whether incorporated or unincorporated) that is established by the Governor or by a Minister or that is an incorporated company or association over which a Minister is in a position to exercise direction or control.

(3) None of the following is a public authority for the purposes of a provision of this Act:

(a) an incorporated company or association (unless declared to be a public authority for the purposes of the provision by a regulation under this clause),

(b) the Legislative Council or the Legislative Assembly or a committee of either or both of those bodies,

(c) a Royal Commission or a Special Commission of Inquiry,

(d) a local authority.

(4) An unincorporated body that is a board, council, committee, subcommittee or other body established or continued by or under the provisions of a legislative instrument for the purpose of assisting, or exercising functions connected with, an agency is not to be regarded as a separate public authority and instead is to be regarded as part of and included in the agency.

(5) A regulation declaring a body to be a public authority may declare a body to be a public authority either generally or for the purposes only of specified provisions of this Act.

22. Clause 8 of Schedule 4 to the GIPA Act provides:

8 Bodies forming part of agencies

Subject to any regulations made for the purposes of clause 6A, a reference in this Act to an agency includes a reference to any body that forms part of the agency or that exists mainly for the purpose of enabling the agency to exercise its functions.

23. Clause 12 of Schedule 4 to the GIPA Act provides:

12 Government information held by agency

(1)    A reference in this Act to government information held by an agency is a reference to:

(a)   information contained in a record held by the agency, or

(b)    information contained in a record held by a private sector entity to which the agency has an immediate right of access, or

(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998 , or

(d)    information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).

(2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).

(3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.

24. The GIPA Act is beneficial legislation and ought to be interpreted beneficially i.e. with a wide and liberal statutory interpretation. It is proper to give it the widest interpretation which its language will permit: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) HCA 45, 173 CLR 231 per McHugh J at paragraph [21]. However, the High Court has held that accepting that legislation as a whole has a beneficial purpose does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, (2014) 254 CLR 1.

Are either or both of the USU and SUSF to be regarded as part of and included in the University for the purposes of the GIPA Act?

25. The University has provided copies of relevant documents concerning the establishment of the USU and the SUSF. Each of the parties has referred to that material in depth. Each presented detailed submissions in relation to this issue. However, in my view it is not necessary to address many of the arguments that have been presented.

26. It is common ground that both the USU and SUSF are unincorporated bodies. Each has a legal identity separate from that of the University. The University contends that the USU and the SUSF are wholly distinct and independent of the University and they are separate entities from the University for the purposes of the GIPA Act.

27. The Applicant disputes that position and contends that the USU and SUSF are to be regarded as part of and included in the University. The Applicant points to clause 2(4) of Schedule 4 to the GIPA Act in support of that contention.

28. The Applicant contends that they are unincorporated associations, created or continued by the Respondent, under an enactment, namely the University of Sydney Act 1989 (“the University Act”). He submits that where a public authority such as the University elects to create or continue any unincorporated association in order to assist it in carrying out its functions; those bodies are part of the public authority for the purpose of GIPA.

29. The Applicant’s case is essentially that the University is constituted under the University Act. The Senate is the governing body of the University and is constituted as part of the University. Section 16(1A)(c) of the University Act empowers the Senate to act for the University in a manner which appears "best calculated to promote the objects and interests of the University."

30. It is common ground that the Senate exercises its powers and makes decisions by way of Resolution. The Senate has passed a number of Resolutions by which the Respondent has established, exercises power over, and effectively delegates some of its functions to the SUSF and the USU. The authority for these resolutions is found in section 6(3)(b) of the University Act which provides that "the University may develop and provide cultural, sporting, professional, technical and vocational services to the community".

31. In relation to the application of clause 2(4) of Schedule 4, Ms Tronson, counsel for the University, submits that clause 2(1) ought to be understood as the leading provision, to which the other sub-clauses are subordinate. She argues that sub-clause (1) sets up the general definition of 'public authority' and that each of the other sub-clauses serves to qualify sub-clause (1) in some way. For example, sub-clause (2) expands the definition by providing for regulations to declare additional public authorities, and sub-clause (3) restricts the definition by providing that bodies that would otherwise fall within the definition are not public authorities. Sub-clause (4) provides that certain bodies are to be considered to be part of other bodies.

32. Ms Tronson submits that sub-clause (4) should be taken to apply to bodies which would, if not for sub-clause (4), arguably fall within the definition of 'public authority' in sub-clause (1). For example, the Senate of the University could be considered a separate government agency from the University itself, as it is continued by section 8 of the University Act. Clause 2(4) serves to remove any ambiguity in this regard by ensuring that a body such as the Senate of the University is to be deemed to be part of the University.

33. Ms Tronson submits that clauses 2(4) and 8 of Schedule 4 are, in effect, deeming provisions and in this regard should be given a narrow construction. To do otherwise could lead to an absurd or impracticable result and this should be avoided. For example, a broad reading could have the result that the agency had obligations under the GIPA Act in relation to information held by the separate body but no capacity to comply with those obligations. Further, the agency could have no capacity to know whether it was complying with its open access obligations in respect of the information held by the separate body.

34. She contends that a narrow reading would apply the relevant clauses where there was a close relationship which included significant elements of control. She finds support for this view in the inclusion in the definition of government information of 'information contained in a record held by a private sector entity to which the agency has an immediate right of access'.

35. She further submits that clause 2(4) of Schedule 4 only makes sense if it is a reference to a body that is capable of being regarded as "a separate public authority" from the agency in question - that is, not only a body which is separate and legally distinct from the agency, but a body which would be a public authority in its own right. She contends that neither USU nor SUSF would be a public authority in its own right. Accordingly, neither USU nor SUSF could be "regarded as a separate public authority" and so clause 2(4) of Schedule 4 to the GIPA Act simply does not apply to them

36. In any event, the University submits that the USU and SUSF do not satisfy the elements required by each of clauses 2(4) and 8. Clause 2(4) requires that both of the following elements be satisfied:

a)   the body must be established or continued by or under the provisions of a legislative instrument; and

b)   the establishment or continuation of the body must be for the purpose of assisting, or exercising functions connected with, another agency.

37. I agree with the University’s position that the element of clause 2(4) that requires that the relevant body must be “established or continued by or under the provisions of a legislative instrument” is not satisfied. In my view, clause 2(4) does not apply to either the USU or the SUSF.

38. As noted, clause 2(4) requires that the body must be established or continued by or under the provisions of a legislative instrument”. The University contends that in order to determine whether a body has been established "by or under the provisions of an instrument” it is necessary to identify the provisions under which that establishment has occurred. I agree with that contention.

39. The University relies on the decision in Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346 where the relevant issue was of whether the relevant act had been done under one source or another. Acting Chief Justice Beazley observed at paragraph [87]

“The phrase “by or under”, like the phrase “vest”, has a protean quality and its meaning “must be ascertained not by reference to authority but by reference to the text and context” of the provision in question”.

40. At paragraph [88] Her Honour accepted the submission that, for something to occur "under" the relevant legislation in that case, it was required to occur by the operation of the Act itself.

41. In the particular case, the vesting of the relevant assets occurred under an agreement, not under the statute, even though the power to enter the agreement was sourced in the legislation.

42. In Hunter Development Corporation Acting Chief Justice Beazley found that there was no reason to depart from this usual meaning of "by or under". In the present matter I agree with Ms Tronson that there is no reason to depart from this usual meaning, i.e. that "by or under" refers to something that occurs by the operation of the Act itself. This is consistent with the use of this phrase in clause 2 of Schedule 4 to the GIPA Act.

43. In this context both clause 2(1)(b) and (4) require establishment or continuation of a body "by or under the provisions of a legislative instrument". This requires identification of the particular provisions and the particular legislative instrument which, by direct operation, establish or continue the relevant body. It is not sufficient to merely assert that there is a statutory power that permits a decision to establish or continue the body.

44. I accept that the University Act authorises the making of a resolution by the University Senate. However, in my view section 6(3)(b) of the University Act does not operate directly to establish or continue either USU or SUSF. Senate resolutions are not legislative instruments.

45. Neither party has identified any other provision that could be said to operate directly to establish or continue either the USU or the SUSF. In my view neither USU nor SUSF are bodies established "by or under the provisions of a legislative instrument".

Are the SUSF and/or the USU otherwise part of and included in the University

46. The question arises as to whether the relationship between the University SUSF and the USU is such that they should be regarded as part of and included in the University for the purposes of the GIPA Act. Clause 8 of Schedule 4 provides that an agency includes a reference to any body that forms part of the agency or that exists mainly for the purpose of enabling the agency to exercise its functions.

47. The Applicant contends that the University not only exercises de facto control over SUSF and the USU, its control is enshrined and embedded in the constitutions of each of those bodies, and in Resolutions of Senate. He provided several examples of that control:

(a)    the University appoints Directors to the Board of the USU;

(b)   the University appoints Members to the Management Committee of the SUSF;

(c)   the University directly employs (and remunerates) the Executive Director and Finance Manager of SUSF;

(d)   neither SUSF nor the USU can amend their governing documents without consent of the Senate;

(e)   neither SUSF nor USU could (or did) come into existence until their governing documents were approved by Senate;

(f)   the financial reports of SUSF and the USU must be approved by Senate; and

(g)    in the event of a winding up, the assets of both SUSF and USU are to go to bodies with similar objects, namely providing benefit to members of the University.

48. The Applicant relies on the decision in Farrell v Mulroney [1978] 1 NSWLR 221 which he contends dealt with almost entirely identical situation at the University of New South Wales. Justice Rath found that the University of New South Wales ("UNSW") student association:

is an institution within the University, and it is part of the corporated activity of the University. Its functions and purposes are incidental to the conduct of the University as a tertiary educational establishment.

49. The University accepts that finding. However, Ms Tronson submits that this is not a finding that the two organisations were intertwined as a matter of legal personality. It is a finding about the intertwined nature of the activity of the two bodies. She submitted that this distinction is important in the present case because clause 8 of Schedule 4 to the GIPA Act requires consideration of whether a body is "part of another body” in a more general way than clause 2(4).

50. The University contends that control is not part of any of the applicable statutory tests, and it says that in any event the issues that the Applicant has referred to do not establish the control that he asserts exists. For example, it submits that the University's appointments of directors to the Board of USU and members of the Management Committee of SUSF are limited.

51. The Senate may appoint four members of the Management Committee of the SUSF, which is less than 50% of the Committee. Quorum may be achieved without any of those members of the Management Committee being present. A vacancy on the Management Committee does not prevent the Committee from proceeding to business.

52. The Senate may appoint two members of the Board of the USU. This is well below 50% of the 14 positions on the Board. Quorum may be achieved without the presence of either of the directors appointed by the Senate. There is nothing in the USU Constitution preventing the Board from operating if there is a vacancy (including one or both of the Senate-appointed positions) and there is no general principle that a board of directors cannot operate despite vacancies.

53. Accordingly, the University contends that neither the USU Board nor the SUSF Management Committee are controlled by the Senate or its appointees because

a)   the Senate-appointed members do not have a majority of votes on either the SUSF Management Committee or the USU Board; and

b)   both bodies would be able to continue to operate if the Senate did not appoint the members it is entitled to appoint.

54. The University further submits that the secondment of the Finance Manager of SUSF, and the remuneration of the Finance Manager and Executive Director of SUSF, by the University, is not sufficient to establish control. It also submits that, while the University's powers in relation to financial reports and governing documents come closer to establishing control in relation to both bodies, more evidence of actual control is required.

55. I agree with the University in this regard. There is no doubt that there is a close link between the University and both the SUSF and the USU. However, it is clear from the manner in which each of those bodies operates that they are able to do so despite the powers of the University to make appointments to the Management Committee of the SUSF and the Board of the USU.

56. For the reasons argued by the University, I am not satisfied that either the SUSF or the USU can be said to form part of the University or that they exists mainly for the purpose of enabling the University to exercise its functions. They can and do operate independently.

57. In my view, neither the USU nor the SUSF are to be regarded as part of and included in the University for the purposes of the GIPA Act.

58. It follows that the University’s decision that it does not hold information falling within the scope of the access application where that information is held exclusively by the USU or the SUSF should be affirmed.

The held information regarding Mr Smithies and Ms Pozder

59. As noted, the University found that it held “salary information regarding the Executive Director of SUSF (Robert Smithies) and the Acting Finance and Administration Manager of SUSF (Aleksandra Pozder)”. The University refused to release that information and relies on items 3(a) and 3(b) of the table to section 14 of the GIPA Act.

60. The University submits that the salary information is personal information about each of Mr. Smithies and Ms Pozder because it is 'about an individual ... whose identity is apparent or can reasonably be ascertained from the information'. It is information about each of them in the sense that it reveals how much each of them is paid. Disclosure of the salary information could reasonably be expected to reveal personal information.

61. The University submits that the salary information is also personal information for the purposes of the PPIP Act. In these circumstances disclosure of the information could reasonably be expected to be a breach of section 18 of the PPIP Act. The University says that pursuant to section 54 of the GIPA Act it was required to consult with each of Mr. Smithies and Ms Pozder and that each has objected to the disclosure of the information to the Applicant.

62. The University submits that the fact that information is personal information is a matter which should be given significant weight. It argues that this is recognised in the scheme of the GIPA Act by the requirement for consultation in relation to personal information and that the general position should be adopted in the present case. The University submits that the fact that information is personal information can be taken into account by the Tribunal in giving weight to its assessment of items 3(a) and 3(b) of the table to section 14 of the GIPA Act.

63. The University accepts that there is a presumption in favour of disclosure. It has also identified the following public interest considerations in favour of disclosure apply:

a)   disclosure of the information could reasonably be expected to promote effective oversight of the expenditure of public funds; and

b)   disclosure of the information could reasonably be expected to enhance the University's accountability in relation to its support for student organisations generally and the USU and SUSF in particular.

64. However, it contends that where the information held by the University is so limited in scope, the information has little to contribute towards that oversight or accountability. Accordingly, none of these considerations should be given much weight. In contrast, it submits that significant weight ought to be given to the public interest considerations against disclosure.

65. The University submits that it was not Parliament's intention, by enacting sections 5 and 25 of the PPIP Act, to place the public interest in obtaining access to government information above the public interest in preserving the right to privacy of personal information. This interpretation would make clauses 3(a) and 3(b) of the table to section 14 of the GIPA Act redundant.

66. Equally, it was not Parliament's intention, by enacting clauses 3(a) and 3(b) of the table to section 14, to elevate the public interest in preserving privacy above the public interest in obtaining access to government information. Clauses 3(a) and 3(b) are factors to be taken into account by an agency when weighing up the public interest considerations in favour of and against disclosure of government information, not exceptions to the general presumption in favour of disclosure.

67. The University submits that the effect of section 5 of the PPIP Act is that, if an agency finds that one or both of the factors outlined in clause 3(a) and 3(b) of the table to section 14 of GIPA are relevant public interest considerations against disclosure, the agency may release the requested information if the public interest considerations in favour of disclosure outweigh the public interest considerations against disclosure. The release of information in those circumstances would not constitute a breach of section 18 of the PPIP Act.

68. The University submits that the effect of section 25 of the PPIP Act is to exempt agencies from compliance with certain information protection principles (including section 18) where non-compliance is lawfully authorised or required. The Respondent submits that, read with section 5 of the PPIP Act, section 25 permits an agency to lawfully release personal information after weighing up the public interest considerations in favour of and against disclosure under the GIPA Act, and concluding that the public interest considerations in favour of disclosure outweigh the public interest considerations against disclosure.

69. Where there is an overriding public interest against disclosure, the release of personal information to an applicant would constitute a breach of section 18 of the PPIP Act.

70. The Applicant is in general agreement in regard to the effect of section 5 and section 25 of the PPIP Act.

71. This accords with the NSW Information Commissioner’s Guideline 4 which states:

If an agency finds that either 3(a) or 3(b), or both, are public interest considerations against disclosure and that releasing the information would contravene the PPIP Act, it may still release the information after applying the public interest test under the GIPA Act. This is made clear by section 5 of the PPIP Act, which provides that nothing in that Act serves to lessen the obligations agencies must exercise under the GIPA Act. Therefore, if the public interest considerations in favour of disclosure outweigh those against, then the personal information can be released to the applicant.

72. This is also consistent with the view that I expressed in Luxford v Department of Education and Communities [2016] NSWCATAD 118 at paragraph [164].

73. The Applicant submits that the information that the University identified as held should be released. He also submitted that the University erred by not treating the contracts of employment for Mr Smithies and Ms Pozder as falling within scope of the access application.

74. He contends that any contractual obligation of the University to pay salaries or to pay or reimburse expenses to Mr Smithies or Ms Pozder is within the scope. Accordingly, it should release the terms of Mr Smithies’ and Ms Pozder’s contracts which relate to remuneration.

75. I agree that a broad reading of the access application would capture the contracts of employment for Mr Smithies and Ms Pozder.

76. The Applicant also identified the following factors in favour of disclosure of the information.

(a) Personal factors of the Applicant

77. The Applicant is a student of the University and pays a compulsory Student Services and Amenities Fee amounting to $145 each Semester. This fee is used in part to fund the SUSF and the USU. At the time of making the application the Applicant was an editor of the student newspaper of the University of Sydney, Honi Soit. He continues to write for that publication and submits that disclosure would contribute significantly to public discourse at the University. He contends that these personal factors should be considered.

(b) Promote Accountability and Oversight of Public Funds

78. The Applicant noted that the University made the submission that the information is "limited in scope" and so "can contribute very little". He submitted that the University has not adduced any evidence, or made any reasoned argument to support of its position that because the quantum of information is limited, it can have little public interest or importance. He argued that this assertion cannot be accepted given the University's statutory burden of proof. The decision-maker does not have the ability to predict or judge how information will be used. Further, he submitted that despite contending that the information is of little value, because it is limited in scope, the University did not take the limited scope of the information into account as reducing the personal privacy factors weighing against disclosure. He contends that were it to be accepted that the limited scope of the information limits its value, it must also be true that the personal privacy considerations weighing against disclosure are similarly limited.

79. The Applicant referred to the decision of the Queensland Information Commissioner in Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council [2004] QlCmr 2 in support of his submission that there is a strong public interest in releasing the pay information of senior management or employees of the kind at issue here. In that decision at paragraph [27] it was found that:

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. Governments fund their operations by imposts on the public of one kind or another. In a representative democracy, elected representatives are accountable to the electors for decisions made in respect of raising and spending public funds. 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.

80. The Applicant submits that the seniority of Mr Smithies and Ms Pozder strengthens the public interest in disclosure. Both individuals can be fairly characterised as senior. Mr Smithies is Executive Director of the SUSF. Ms Pozder is a Senior Corporate Accountant, seconded to the SUSF as Finance Manager. The Applicant notes that SUSF's website classifies both Mr Smithies and Ms Pozder as "Senior Management Staff”. The SUSF's Organisation Chart places Mr. Smithies at the top of the organisation and Ms Pozder one rung below.

81. The Applicant further submits that the character and context of Mr. Smithies’ and Ms Pozder's employment demonstrates the significant contribution which would be made to the accountability of the Respondent and the Respondent's use of public funds, were the information sought the application to be released. He contends that the release of the information would disclose the fact that the University employs two individuals who occupy senior roles in what it claims is an independent body and the amount it spends doing so. This is not currently public knowledge.

82. The Applicant stated that Ms Pozder is employed by the University in the role of "senior corporate accountant" and on secondment to SUSF as its acting Finance Manager. Despite this, in response to a Summons issued 15 December 2015, the Respondent stated that it could not find any record or communication in relation to the terms of Ms Pozder's secondment. The Applicant submits that the existence of such an irregular and unregulated secondment by the Respondent, involving the expenditure of public funds with no apparent oversight or accountability, to an organisation the Respondent claims is an independent unincorporated association, should be of significant interest to the public, and in particular to students of the University, who directly or indirectly fund that secondment.

83. The Applicant submits that Mr. Smithies, as the Executive Director, is responsible for SUSF's elections, the arbitration of electoral disputes and the negotiation of funding with the University. Ms Pozder is the Finance Manager of the organisation. He contends that their contracts state that they owe contractual obligations to the University: there is no mention of what obligation, if any, they owe to SUSF. He further contends that this creates a clear conflict of interest.

(c) Other factors in favour of disclosure

84. The Applicant submits that disclosure of the fact that the University employs people, over whom it has little to no oversight, accords with the objects of the GIPA Act: to promote transparency and accountability in public administration. He says that the irregularity of Mr. Smithies and Ms Pozder's employment is thus directly relevant, and gives significant weight to the public interest in favour of disclosure.

85. The Applicant submits the correct and preferable decision is for the public interest test to be applied correctly, and no overriding public interest against disclosure be found. The Tribunal should substitute the Respondent's decision and grant access to the information.

Discussion

86. I accept the Respondent’s argument that the information concerning Mr. Smithies’ and Ms Pozder's employment is personal information for the purposes of the GIPA Act.

87. I note the submissions regarding the factors to be weighed in favour of and against release of that information. In this regard I agree that each of the factors raised by the Applicant is a relevant consideration.

88. The approach to be taken in regard to weighing the public interest considerations in favour of disclosure and those against disclosure is now well established: see for example the discussion of the balancing test in Commissioner, NSW Police Force v Camilleri [2012] NSWADTAP 19 at paragraph [25].

Where a decision maker forms the view that one or more of the public interest considerations against disclosure in subsection 14(2) applies, the decision maker's task is to weigh these considerations against disclosure against the public interest considerations in favour of disclosure for the purpose of determining whether there is an overriding public interest against disclosure (the section 13 public interest test). That is, in such circumstances, the decision making process a three step process: (a) identifying the public interest considerations in favour of disclosure (which are not closed), (b) identifying the public interest considerations against disclosure (which are closed as per section 14 of the GIPA Act) and then (c) determining where the balance lies.

89. As discussed above, the fact that the information concerning of Mr. Smithies’ and Ms Pozder's employment is personal information is a factor to be weighed in the balancing exercise. However, in my view it is only one of several factors. In my view it is to be given reasonable weight. However, it is my view that the factors raised by the Applicant in regard to promoting accountability and oversight of public funds are to be given greater weight. I do not agree with the University’s submission that the information is so limited in scope that it has little to contribute towards that oversight or accountability.

90. It was noted in Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 that:

there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office.

91. I agree with that view. I also agree with the view expressed in Lower Burdekin Newspaper Company at paragraph [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 …

92. In my view, the public interest considerations in favour of release outweigh those against release, notwithstanding that the information in issue is Mr Smithies’ and Ms Pozder's personal information.

93. That being the case, it is my view that the decision to refuse to release that information should be set aside and in its place the decision made that the information is to be released. The information should be released 28 days from the date of this decision.

94. The decision should be otherwise affirmed.

Orders

1. The decision of the University of Sydney to refuse to provide the Applicant with access to salary information regarding the Executive Director of Sydney University Sport and Fitness and the Acting Finance and Administration Manager of Sydney University Sport and Fitness is set aside’

2. In place of that decision, the decision is made that the information is to be released 28 days from the date of this decision.

3. The decision of the University of Sydney is otherwise affirmed.

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

Amendments

14 March 2017 - Coversheet orders and Order 1 - typographical error, decision amended to replace the words "the Executive Director of the University of Sydney Union" with the words "Executive Director of Sydney University Sport and Fitness".

Decision last updated: 14 March 2017