Todd v University of New South Wales

[2004] NSWADT 250

CITATION:	Todd v University of New South Wales [2004] NSWADT 250
DIVISION:	General Division
PARTIES:	APPLICANT Girvan Frederick Todd RESPONDENT University of New South Wales
FILE NUMBER:	043052
HEARING DATES:	21/06/2004 23/06/2004
SUBMISSIONS CLOSED:	06/23/2004
DATE OF DECISION:	11/01/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	access to documents - confidential material - access to documents - internal working documents - access to documents - operation of agencies - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - operation of agencies - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989
CASES CITED:	BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76 Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Colakovski -v- ATC (1991) 29 FCR 429 Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR 606 Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43 Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133 Leonard Hastings Ainsworth -v- The Principal Officer, Dept of Gaming & Racing (Dist Court of NSW 6/6/97 unreported) Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 Re: Corrs Pavey Whiting and Byrne And: Collector of Customs for The State of Victoria and Alphapharm Pty. Ltd. No. VG6 of 1987 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6ALN 257 Re Hutchinson and Department of Human Services (1997) 12 VAR 422 Re Maher and Attorney General’s Department (1985) 7 ALD 731 Ryder v Booth (1985) VR 870 at 872 Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41 Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT S W Hickey, barrister RESPONDENT J Oakley, barrister
ORDERS:	The University’s decision to refuse to release each of the documents that are the subject of this application is affirmed.

1 This is a review application under section 53 of the Freedom of Information Act 1989 ('the FOI Act'). The Applicant is an 82 year-old veteran who participated in a research project undertaken by the University of New South Wales (“the University”) in conjunction with the Commonwealth Department of Veterans Affairs and the Repatriation Commission. The Applicant participated in the research project by way of involvement in a focus group in May 2002. Some time after that involvement the Applicant's involvement in the focus group a complaint was made in relation to the conduct of the academic who had conducted the research project. The Applicant is seeking to discover the identity of complainant.

2 By letter dated 25 November 2003 the Applicant applied under section 17 of the FOI Act seeking the following documents:

(i) Letter of complaint lodged with the Human Research Ethics Secretariat in or about September 2003 (“Document 1”);

(ii) Document constituting a summary of that complaint distributed to members of the executive of the Human Research Ethics Committee (“HREC”) as constituted on Thursday, 2 October 2003 (“Document 2”);

(iii) Report prepared by the HREC describing the outcome and investigation into the complaint and including but not limited to any report forwarded to the Pro-Vice Chancellor (Research) of the University of New South Wales (“Document 3”);

(iv) Notes taken by Peter Dolnik at the meeting of the HREC executive on Thursday, 2 October 2003 (“Document 4”);

(v) Draft minutes prepared by Mr Dolnik based upon the said notes and forwarded to the presiding member of the executive of the HREC (“Document 5”).

3 The University determined that the documents sought are exempt documents under clauses 6, 9 and 13(b) of Schedule 1 to the FOI Act, however it was noted that the University records did not contain a document meeting the description of Document 1. The University informed the Applicant of that determination and the reasons for the determination by letter of 17 December 2003. By letter dated 14 January 2004 the Applicant sought an internal review pursuant to section 34 of the FOI Act.

4 The University’s Deputy Vice Chancellor Resources, Dr Alec Cameron, conducted the internal review. Dr Cameron located a document a document meeting the description of Document 1. The internal review determined that all documents the subject of the application, including Document 1, were exempt documents pursuant to clauses 6, 9 and 13(b) of Schedule 1 of the FOI Act. The Applicant was informed of the determination and the reasons for it by letter of 30 January 2004.

5 Dr Cameron noted that the author of Document 1 (“the complainant”) had requested that the matter be dealt with confidentially and that the University's HREC had given a specific undertaking to that person that confidentiality regarding the complaint would be maintained. He also noted that the University's grievance handling procedures and both the National Health and Medical Research Council’s National Statement on Ethical Conduct in Research Involving Humans and the Commentary on that Statement required procedural fairness, confidentiality and privacy be taken seriously in relation to the handling of complaints.

6 Dr Cameron identified it as being in the public interest to ensure that information is provided to the University and that complainants be able to provide information in a confidential manner. As the complaints the subject of the application was written and submitted in confidence their release would be in breach of an undertaking of confidentiality which might discourage persons in future from making complaints or providing information to the University. The consent of the individual who was the subject of the complaint was not considered sufficient of itself for a decision to release the documents. It was not considered practicable to release the documents sought with excisions or deletions.

7 On 4 March 2004 the Applicant lodged with the Tribunal an Application for Review pursuant to section 53 of the FOI Act.

8 In accordance with a direction from the Tribunal the University provided a copy of the documents the subject of the review to the Tribunal on the understanding that they not be disclosed to either the Applicant or his advisers.

Issues on Review

9 Pursuant to section 61 of the FOI Act the University has the burden of establishing that its determination was justified. In determining an application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it and for that purpose may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. The Tribunal is to have regard to any relevant Government policy in force at the time the reviewable decision was made and may have regard to any other policy applied by the administrator in relation to the matter concerned.

10 The issues in this application are whether the grounds on which the University has refused access to the documents requested by the Applicant have been made out. That is, whether the Authority can establish that the exemption on which it has refused access to each document in fact apply. It needs to be determined whether the documents sought by the Applicant are exempt documents within Schedule 1 of the FOI Act; and if the documents are exempt documents whether it is practicable to give access to copies from which exempt matter has been removed.

11 The relevant provisions of the FOI Act are found in section 25 and Schedule 1. Subsection 25(1) of the FOI Act allows an agency to refuse access to an exempt document in certain circumstances, including where a document is an "exempt" document as defined in the FOI Act. Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted and if it appears to the agency that the Applicant would wish to be given access to such a copy.

12 Section 31 of the FOI Act provides in part that an agency shall not give access to a document containing information concerning the personal affairs of any person (otherwise than to the person concerned) unless the agency has taken steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

13 The relevant provisions of Schedule 1 of the FOI Act are:

“6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.”

“7 Documents affecting business affairs

(1) A document is an exempt document:

(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or

(b) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets) that has a commercial value to any agency or any other person, and

(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made.”

“9 Internal working documents

(1) A document is an exempt document if it contains matter the disclosure of which:

(a) would disclose:

(i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or

(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency, and

(b) would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document, or

(b) factual or statistical material.”

“13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.”

“16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or

(v) to have a substantial adverse effect on the conduct of industrial relations by an agency, and

(b) would, on balance, be contrary to the public interest.”
14 The relevant policies are the University’s Code of Conduct for the Responsible conduct of Research, Rules Governing Human Research Projects at UNSW; National Statement on Ethical Research Conduct in Research Involving Humans, Human Research Ethics Handbook and Joint NHMRC/AV-CC Statement & Guidelines on Research Practice.

15 The University’s case is that each of the documents sought are exempt from production.

Document 1

16 As to Document 1 the Applicant asserts that as the original determination did not concern Document 1 the exemption clauses referred to in the internal review decision could not have been applied to that document. The Applicant says that the reviewing decision in relation to Document 1 is therefore flawed and of no effect, being based on the premise that Document 1 had been considered by the original decision maker.

17 In response to that argument the University asserts that the original decision maker in fact considered Document 1 as it was annexed to Document 3. After reviewing the documents I am satisfied that Document 1 is in fact an annexure to Document 3. It follows in my view that there is no merit in the Applicant’s argument on that particular issue.

18 The University asserts that Document 1 (and therefore Document 3) contains material relating to the personal affairs not only of the Applicant but also of both the complainant and individual who was the subject of the complaint.

19 The complainant has a strong objection to any disclosure of information concerning the complainant's personal affairs. The individual who was the subject of the complaint has indicated that she has no objection to disclosure of her personal affairs to the Applicant. To the extent that the documents contain information about the personal affairs of the Applicant, the University says that clause 6(2) of Schedule 1 of the FOI Act applies.

"personal affairs"

20 Ms Oakley, counsel for University, referred to various authorities in relation to the meaning of the term "personal affairs" and argued that while the term is inherently imprecise it has been generally interpreted to mean "matters of private concern to an individual".

21 The Applicant maintains that Document 1 is not an exempt document on the ground of personal affairs. Mr Hickey asserts that the identity of a complainant cannot amount to personal affairs for the purposes of Clause 6 of Schedule 1. The Tribunal must look to whether the document contains information about the personal affairs of a person. He referred to the views of Britton JM in BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76 where she stated at paragraph 25 of her decision:

“25 As a general rule a document cannot be said to contain information about the personal affairs of its author solely on the grounds that that person created the document. The document must contain information about the author’s personal affairs. A document will not fall within clause 6 of Schedule 1 simply because it was written or created by a member of the applicant’s family.”
22 It is the view of the Applicant that the complainant is, in all probability, a person known to him and that the complainant's name and address is material already available generally to him. Therefore it cannot be said that the letter of complaint has as its subject matter in any way the personal affairs of the complainant. Mr Hickey asserts that the Respondent ought not to be allowed to argue that the complainant's interest as a family member in the personal affairs of the Applicant is itself a personal affair of the complainant.

23 In Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J stated in relation to a similar provision to that in clause 6 contained in section 41 of the Commonwealth Freedom of Information Act 1982:

“In my opinion, none of the subject documents contain information relating to the “personal affairs” of the applicant within the meaning of s 41(1) of the Act. The reference to “personal affairs” of a person was, I think, intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual”.
24 In Colakovski -v- ATC (1991) 29 FCR 429 at 431 Lockhart J. stated:
“It is also plain from the reasons for judgment of the Full Court in Dyrenfurth that their Honours preferred not to substitute for the word “personal” where appearing in s 41(1) a word such as “private”, though they recognised that according to the ordinary use of the word “personal” it connotes something private to the person, or, as it was put by Beaumont J in Re Williams at 221, the expression “personal affairs” refers “to matters of private concern to an individual”.

See also the judgment of Wilcox J in Bleicher v Australian Capital Territory Health Authority (1990) 96 ALR 732, where his Honour carefully reviewed the authorities relating to the meaning of “personal affairs” in s 41(1) and s 12(2) of the FOI Act and observed (at 738) that: “… matters related to the pursuit of a vocation and ‘personal affairs’ are not necessarily mutually exclusive categories.”

I respectfully agree with his Honour’s observation.

The meaning of the expression “personal affairs” in s 41(1) of the FOI Act came before a Full Court of this court (Sheppard, Beaumont and Pincus JJ) in Wiseman v Commonwealth (24 October 1989, unreported). The Full Court noted that the Administrative Appeals Tribunal, from whose decision the appeal was brought to the Federal Court, had expressed the view that “personal affairs” referred to “matters of private concern to individuals”, citing the words of Beaumont J in Re Williams. Their Honours did not themselves consider the meaning of the expression “personal affairs”, but it is plain from their reasons for judgment that they saw no reason to disagree with the tribunal’s statement.

25 In Commissioner of Police -v- District Court of NSW (1993) 31 NSWLR 606 (“Perrins case”) Kirby P stated at page 625:
'In its context, the words "personal affairs" mean the composite collections of activities personal to the individual concerned.'
26 Whether a document contains information about the "personal affairs" of a person is a question of fact to be determined from the circumstances of each individual case: Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 (“ Woods ”) at paragraph 31. The circumstances of the case will determine whether or not a person's name and other identifying characteristics are personal affairs for the purpose of clause 6 of Schedule 1 of the FOI Act. A distinction has been drawn in the authorities between persons who are carrying out their functions as officers of an agency (Perrins Case) and persons outside the agency ( Gilling -v- General Manager, Hawkesbury CC [1999] NSWADT 43; Thompson -v- The Lord Howe Island Board [2003] NSWADT 193)

27 In Woods at paras 26 and 27 the Appeal Panel stated that:

“A private citizen’s complaint of alleged rudeness by a public servant would, we consider, clearly involve an aspect of the no doubt ‘personal’ life or affairs of the citizen.

There is not, as we see it, a fundamental difference to be found in a situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains the concern to them in a private capacity.”

28 In Woods the document in issue was a petition that had been signed by work colleagues of the applicant and at para 28 the appeal panel stated the following:

“ 27 There is not, as we see it, a fundamental difference to be found in the situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains of concern to them in a private capacity.

28 The contents of the ‘petition’ are, as we see it, reasonably open to be characterised as matters of personal or private concern to the fellow employees. The document does not purport to be a neutral evaluation of performance or competence of another employee by persons trained or tasked to do that. The present case is not one involving a tasked activity (cf. Perrin’s case). The sources of the report are co-workers. None of them were at the relevant times in a supervisory relationship to Woods and Brew. They had a discretion whether to file any report. They were not directed to do so. They were seeking to draw to the attention of management, issues that were of personal concern to them and which they also saw as relevant to the effective management of the organisation and requiring action.”

29 The Appeal Panel went on to state that in its view the application before it was akin to those in Re Hutchinson and Department of Human Services (1997) 12 VAR 422 and at para 30 the Appeal Panel quoted the following paragraph from Hutchinson .
“ I do not think there can be any doubt that [the documents in issue, handwritten notes of interviews and follow-up typed drafts compiled by a named investigator from unnamed staff members relating to Hutchinson’s conduct in the workplace] are to be characterised as containing matters of private concern to the individuals interviewed by Mr Fennessy. The documents contain information relating to the interviewee’s personal experiences with the applicant and their various reactions to those experiences, their versions of particular events and their reactions to those events.”
30 Having examined document 1, on the basis of the decision of the Appeal Panel in Woods and the authorities discussed therein, it is my opinion that Document 1 relates to the personal affairs of the complainant. I am also of the view that the document relates to the personal affairs of the individual who was the subject of the complaint.

31 Accordingly, the next issue for determination is whether disclosure of the document would be unreasonable.

Whether disclosure is unreasonable

32 Mr Hickey asserts that it is unlikely that the release of Document 1 would disclose the personal affairs of the complainant. It is probable that the body text of Document 1 relates not to the personal affairs of the complainant but to those of the applicant and the individual who was the subject of the complaint. Both of who consent to its release. The consent by the individual who was the subject of the complaint, to which Mr Hickey referred, is contained in a letter dated 7 January 2004 to the University’s FOI coordinator. In part that letter states:

“It may be that you require formal written acceptance of my permission that all these documents be provided to Mr Todd. This is provided herewith. I ask that you make all requested documents available to Mr Todd. I am confident that the release of the documentation will close the matter for myself, for Mr Todd and for his dealings with the University.”
33 Mr Hickey asserts that disclosure of Document 1 would not amount to unreasonable disclosure of the personal affairs information. He submitted that the test to be applied is whether disclosure is reasonable in all the circumstances. In BW -v- Registrar, New South Wales Medical Board [2002] NSWADT 76 Britton JM stated:
“45 In determining whether disclosure would be unreasonable I am required to weigh up the public interest of protecting the privacy of members of the applicant’s family against the public interest of enabling the applicant to access documents held by a Government agency. (See Colakovski (at 438)). In making this determination the following factors are relevant: the reasons the applicant seeks access to the documents; the nature of the information contained in the documents; the circumstances in which the information was obtained; the views of the authors of the documents in respect of disclosure; and, finally, whether disclosure is likely to have any adverse impact on that person or persons whose personal affairs are contained in the document.

46 The applicant’s motives or intentions in relation to the application for access are highly important in considering whether or not the disclosure of the information would be reasonable in all the circumstances. (See Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 and Re Targridge Pty Ltd and Road Traffic Authority (1988) 2 VAR 604 at 606-607.)”

34 Mr Hickey referred to the decision in Humane Society International Inc. -v- National Parks & Wildlife Service & ors [2000] NSWADT 133 where Robinson JM stated:
“21 The next issue to be addressed is whether or not the release to the applicant of the licence addresses would constitute unreasonable disclosure of information. This involves a consideration of all of the circumstances of the case and a balancing of relevant interests. In many respects, it involves the Tribunal in undertaking a process similar to the assessment of the “public interest” that applies in a number of other areas in the FOI Act. However, to some extent, the FOI Act has directed that, where the exercise of discretions conferred by the FOI Act are involved, they should be exercised as far as possible so as to facilitate the giving of access – section 5(3)(b).”
35 He submitted that the balancing of the relevant interests must have the public interest at its core. He argued that there is an interest in releasing the document to the Applicant. He asserted that this is not a case where release of documents will cause disharmony within a family as was considered in BW -v- Registrar, New South Wales Medical Board . There is no threat of violence or harassment as in some cases. Rather, he asserted, release of the documents would put things to rest and create harmony within the family. The primary relief that the Applicant seeks is an apology and the provision of the document will promote the family relationship. The Tribunal can consider whether this would prejudice the person whose personal affairs are to be protected.

36 In Gilling -v- General Manager, Hawkesbury City Council [1999] NSWADT 43 the Tribunal’s Deputy President Hennessy stated:

“Factors which are relevant to the question of unreasonableness are: the views of the third parties; the nature and extent of any prejudice to third parties if their names and addresses are disclosed; and whether disclosure would serve the public interest purposes of the legislation. There has been some debate about whether the applicant’s interest in the information is also a relevant factor.”
37 Disclosure to the world is a consideration. A parallel consideration in this case is that the Applicant wants the document to be able to respond. Mr Hickey submitted that the Tribunal should look to the aim of the complainant in making the complaint. He argued that it was made out of malicious intent because of a change in the Applicant’s will. This should be considered. The Applicant thinks that the complainant is one of three persons. Release of the document will put to rest any doubt in relation to the others.

38 Mr Hickey further submitted that it is necessary to examine whether the complaint concerns the work of the individual who was the subject of the complaint or merely an out of work situation. There is a public interest in disclosure so that the whole can be seen in context. It is in the public interest to have transparency in the operation of the HREC and there is a need for protection of persons in connection with research. There is a need for accountability to the wider public with respect to the operation of the HREC.

39 Ms Oakley raised several arguments to support the University’s position that release would be unreasonable. While the University concedes that the individual who was the subject of the complaint has consented to the release of the document to the Applicant, it is argued that this was only partial consent. A copy of relevant parts of the University’s staff enterprise agreement was put in evidence. Ms Oakley argued that the University has an obligation of confidentiality under that agreement and allegations of misconduct are to be treated confidentially. The individual who was the subject of the complaint has not consented to the release to the world of material which would disclose her personal affairs.

40 Ms Oakley also submitted that release of Document 1 would be unreasonable in that:

1. It was given in confidence;

2. notification of the complainant was only disclosed to the University on the basis that it would be kept confidential;

3. the complainant initiated, and intended to initiate, an inquiry with respect to the breach of the enterprise agreement;

4. there are privacy issues with respect to the potential prejudice to the complainant;

5. there was no consent to the release by the complainant, and only partial consent to release by the individual who was the subject of the complaint; and

6. release of the document would be a breach of the agency's undertaking as to confidentiality.

41 The Tribunal must undertake a balancing of competing public interests in determining whether disclosure is unreasonable. In Saleam v Director General, Department of Community Services and Ors [2002] NSWADT 41, at para 38, the President adopted the approach that had been adopted in relation to the Commonwealth Act by the Administrative Appeals Tribunal’s Deputy President Hall in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6ALN 257. In determining whether a disclosure would be unreasonable the President stated:
“38 As to the general approach to be adopted in deciding whether an exemption should be applied on the basis that disclosure would involve the unreasonable disclosure of information concerning the personal affairs of a person, I agree with the views expressed by the Commonwealth Administrative Appeals Tribunal (AAT). In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, the AAT said:
‘(51) … [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is “unreasonable” requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 [the Commonwealth FOI Act exemption equivalent to cl 6] seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document’.”

42 In Saleam the President also cited authority for the principle that that `whether or not disclosure would be unreasonable is a question of fact and degree which calls for a balancing of all the legitimate interests involved'.

43 In this case I agree with Ms Oakley’s argument that the public interest in disclosure is outweighed by the fact that the complainant opposes disclosure, that the material was obtained in confidence, that an undertaking was given to keep the complainant's identity confidential, and the fact that the complainant is a third party, not being in any way associated with the University.

44 Having examined Document 1, I have formed the view that it would not be practicable to remove exempt matter from the Document in order to allow the Applicant access to it. Accordingly, it is my view that the University’s decision to refuse to release Document 1 to the Applicant was the correct and preferable one.

45 For completeness I note that the University also asserted that Document 1 should not be releases on other grounds. Ms Oakley submitted that release of the document would disclose advice obtained in the course of or for the purposes of its decision-making processes ie determination of whether the complaint would form the basis of disciplinary action against the individual whom was the subject of the complaint. Accordingly, it is submitted, Document 1 is an exempt document under Clause 9 of Schedule 1 of the FOI Act.

46 The University also submits that document 1 is exempt under clause 13 of Schedule 1. Ms Oakley submitted that while it had not been identified by the University as the basis for exemption, an exemption is available under Clause 13 (a) if disclosure would found an action for breach of confidence. I was referred to views expressed by Gummow J in the Federal Court of Australia matter of Re: Corrs Pavey Whiting and Byrne And: Collector of Customs for The State of Victoria and Alphapharm Pty. Ltd. No. VG6 of 1987 where he stated at paragraph 14 of his decision:

“14. As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge) (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence and (iv) there is actual or threatened misuse of that information: Saltman Engineering Co Ltd v. Campbell Engineering Co (1948) 65 RPC 203 at 215, The Commonwealth v. John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50-51, O'Brien v. Komesaroff (1982) 150 CLR 310 at 326-8. It may also be necessary, as Megarry J thought probably was the case ( Coco v. A.N. Clark (Engineers) Ltd (1969) RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff.”
47 Mr Hickey argued that these criteria cannot be satisfied with respect to Document 1.

48 Nevertheless the University relies on Clause 13(b) as the basis for exemption. This involves a three-stage test. A document is an exempt document under clause 13 (b) if it contains matter the disclosure of which (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest. Ms Oakley submitted that in this matter the complaint explicitly states that the information is given in confidence. It is a complaint against an academic. The information was given on the understanding that the details of the complainant would be kept confidential. The release of that information would affect others wanting to make complaints on a similar basis. The complainant's interests should be protected. The University asserts that the public interest would not be served by a breach of a confidentiality assurance. Complaints about academic staff for breaches should not be impeded. Further, academics against whom complaints have been made our entitled to have their confidentiality respected.

49 Ms Oakley asserted that both the complaint and the identity of the complainant were confidential. An assurance was given concerning confidentiality. She referred to the matter of Leonard Hastings Ainsworth -v- The Principal Officer, Dept of Gaming & Racing (Dist Court of NSW 6/6/97 unreported) in which it was held by Cooper, DCJ:

“It is further clear from a consideration of the documents that information was obtained by the respondent on the promise of such confidence and that if it became known (which it would clearly be) that the information could be disclosed then it would prejudice the future supply of such information to the respondent.”
50 She argued that disclosure would be contrary to the public interest because it would involve a breach of an assurance of confidentiality and may interfere with the University's ability to receive confidential complaints about its staff members in future.

51 Ms Oakley further submitted that the document is an exempt document pursuant to Clause 16 of Schedule 1 as it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel or, to have a substantial adverse effect on the conduct of industrial relations by the University, and would, on balance, be contrary to the public interest.

52 The Applicant claims that in relation to Document 1, Clauses 9 and 13(b) of Schedule 1 have no application. The Applicant says that any consultation or deliberation that has taken place has not been in the course of, or for the purpose of the decision-making functions of the University and that the disclosure of the information in the documents would on balance, be not contrary to the public interest.

53 Contrary to the Respondent's grounds for withholding the documents the Applicant claims that release of them would enhance the accountability of the University. Further, exemption of the documents would be contrary to the public interest, in ensuring that there is proper compliance with the National Statement on Ethical Conduct in Research Involving Humans. The overriding public interest is that persons have freedom of access to documents. In this matter the Applicant has real and genuine concerns as his reasons for requesting the documents.

54 In relation to Clauses 9 of Schedule 1 Mr Hickey argued that the Applicant's input for the research project ended in May 2002. The complaint was made a very considerable time thereafter. Documents 2 to 5 came into existence in preparation for or as a result of the inquiry conducted by the HREC. Neither at the time of the research project or indeed before it nor at any time thereafter was there any reason for HREC to become involved by way of inquiry.

55 The Applicant claims that the complaint was not about the conduct of the research project. The complaint was made in September 2003. The Applicant's involvement had ceased in May 2002. The subject matter of the complaint was personal and private and did not relate to the conduct of the research project. The HREC had no jurisdiction to instigate and carry out the inquiry it did. In so doing the inquiry was conducted improperly to the extent that the University should not have permitted it. As the HREC had no power to deal with the complaint it cannot be said that any document created by it or for it related to its decision-making functions.

56 Mr Hickey put documents into evidence to support his argument as to the scope of the HREC’s functions and the interrelationship between that body and the decision-making powers of the University.

57 The first limb of Clause 9 in Schedule 1 requires any element to be obtained, prepared or recorded or to have taken place in the course of, or for purposes of the decision-making functions of the University. That test imputes, by demand of the words used, "the proper decision-making functions of the University”. Any decision made at the University or by University personnel will not and cannot be a decision of that establishment if ultra vires of the ambit or scope for the decision making powers of the body or person who made it.

58 Accordingly the documents were not produced for the "purpose of" and "in the course of the "decision-making functions" of the University as contemplated by the wording of the Act.

59 Mr Hickey argued that the provision of information in confidence of itself does not establish that the release of information is therefore contrary to the public interest. The University must establish something more than supply of information on a confidential basis. The Applicant says that the information supplied by the complainant to the University was not initially supplied whether orally or in writing on a confidential basis. Extracts supplied to the Applicant by the Respondent clearly indicate that assurances as to confidentiality were given after and not contemporaneously with the initial complaint. Confidentiality cannot be applied retrospectively. The information was therefore not obtained in confidence.

60 As I have indicated above, it is my view that Document 1 is an exempt document under Clause 6 of Schedule 1 to the FOI Act because it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of both the complainant and the individual who was the subject of the complaint. It is therefore not necessary to consider the alternative arguments raised in relation to Document 1. Nevertheless I am persuaded that Document 1 would be exempt at least under Clause 13(b) of Schedule 1 to the FOI Act for the reasons argued by Ms Oakley.

Document 2

61 Document 2 comprises a summary of Document 1. This document was distributed to members of the HREC. The University concedes that document 2 only contains information concerning the personal affairs of the individual who was the subject of the complaint. The University asserts that this document is exempt under clause 6 of Schedule 1, as there was only limited consent to its release. There was no consent to the world at large. Ms Oakley submitted that the content of the document influences whether it is reasonable to disclose it. The information was given in confidence, therefore disclosure to the world is not justified.

62 Ms Oakley argued that it is apparent that the document was initiated to determine how to next proceed in relation to the complaint. The business affairs exemption under clause 7 of Schedule 1 is therefore applicable because it contains matter concerning the University's research and its disclosure could have an adverse effect on the future conduct of research. She further asserted that the disclosure of the document would disclose an advice prepared or recorded for the purposes of the decision-making functions of the University. The relevant decision-making function is how to deal with the complaint about a member of staff. It would be contrary to the public interest to disclose the document because of its confidential nature. Accordingly, Ms Oakley submitted, the document is exempt pursuant to clause 9 of schedule 1 to the FOI Act.

63 Ms Oakley also submitted that document 2 is exempt pursuant to both clause 13(a) and 13(b) of schedule 1 to the FOI Act. She asserted that disclosure of the document would disclose information obtained in confidence and could reasonably be expected to prejudice the future supply of such information to the University and that on balance that disclosure would be contrary to the public interest.

64 Ms Oakley also submitted that it is open to the Tribunal to find that Document 2 is exempt pursuant to both clause 16(a)(iii) and 16(a)(v) of schedule 1 to the FOI Act and that on balance disclosure would be contrary to the public interest.

65 With respect to the University’s assertion that Document 2 is exempt pursuant to Clause 9 of schedule 1, Mr Hickey submitted that Document 2 was not produced for the "purpose of" and "in the course of the "decision-making functions" of the University. He repeats the argument referred to above with respect to Document 1.

66 The Applicant says that the HREC had no jurisdiction to instigate and carry out the inquiry it did and acted ultra vires. The purported relevant "decision-making functions of the University" were not within the ambit or scope of the decision-making powers of the body or person who purported to make them. The documents were thus not produced for the relevant purpose of or in the relevant course of the decision-making functions to the extent that the first strand of the test can be fulfilled

67 In relation to the second strand test of Clause 9 the Applicant claims that disclosure of the matter contained in the documents would not, on balance, be contrary to the public interest.

68 He further submitted that the grounds for exemption which rely upon confidentiality could only apply to Document 1 and not to Documents 2-5.

69 Mr Hickey repeats his argument that the complaint was not obtained in confidence in relation to Document 2. He asserts that the University could not give an undertaking as to confidentiality in relation to matters that are not confidential. Furthermore, the HREC had no jurisdiction to deal with the complaint. It thus had no power to give any undertaking in relation to confidentiality. The University is estopped from relying on undertakings of confidentiality that it had no power to give and/or which were given improperly. To allow it to rely on such undertakings would be contrary to the public interest. The Applicant claims that the subject matter in respect of which confidentiality was sought was not in any event confidential. For information to be obtained "in confidence" it must be shown that it was communicated and received under an expressed or inferred understanding to be kept confidential.

70 Mr Hickey submitted that the grounds for exemption under Clause 13(b) require all three subclauses to be met. That is, the disclosure (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the University, and (iii) would, on balance, be contrary to the public interest. If the complaint was not obtained in confidence, no issue of confidentiality arises in relation to Documents 2-5.

71 The Applicant further claims that the disclosure of the documents sought ought not to be reasonably expected to prejudice the future supply of such information to the University. Mr Hickey submitted that for the University to succeed on this ground, the University’s ability to obtain such, or similar, information in the future must be impaired. The question is not whether the complainant will give such information in the future.

72 The complainant was not associated in any way with the University. The complainant's motivating and only interest was a personal interest or private interest in the disposition of assets by the Applicant. Therefore there cannot be any basis to expect the future supply of information to the University will be prejudiced by the release of these documents.

73 The Applicant says there are no public interest factors that favour the University. Release of documents will contribute to public knowledge for the purpose of debate. The subject matter of the documents is not matter in the public forum. This is because the documents do not relate to matters of public interest. At worst the documents are equivocal on the test and thus release of them would not be "contrary" to the public interest. It is in the public interest rather than contrary or against the public interest to release the documents. The release of documents may improve the accountability of the University and the HREC in the manner in which it conducts itself.

74 I do not consider that there is any merit in the Applicant’s argument that the complaint was not obtained in confidence. It is well established that in order for information to be obtained in confidence it must be shown that it was communicated and received under an expressed or inferred understanding that it would be kept confidential: see Re Maher and Attorney General’s Department (1985) 7 ALD 731 at 737. Confidentiality can be infirmed from all the circumstances: see Wiseman v Commonwealth, unreported, Federal Court, 24 October 1989.

75 In respect of determining whether disclosure of the information would prejudice the future supply of such information to the agency, the test is not whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, the test is whether the agency will be able to obtain such information in the future: see Ryder v Booth (1985) VR 870 at 872 and Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 at 341.

76 After considering the contents of Document 1, I am satisfied that the complaint was only made after the complainant was given an undertaking in relation to confidentiality. In my view, the test that it must be shown that the complaint was communicated and received under an expressed or inferred understanding to be kept confidential, has been satisfied.

77 Nor do I agree with Mr Hickey’s argument that the approach adopted by the University following receipt of the complaint was ultra vires. It is apparent from the face of Document 1 that the complaint was lodged with the University. It seems to me that having received the complaint the University was obligated to take some action to investigate the issued raised by it. Document 2 was produced as part of that action. In my view, this falls squarely within the scope of Clause 9 of Schedule 1. It satisfies the test that the document was prepared in the course of, or for the purpose of "the proper decision-making functions of the University”.

78 It follows that I am satisfied that the first limb of Clause 9 has been met in relation to Document 2. Given the nature of Document 2 I am also satisfied that disclosure would, on balance, be contrary to the public interest. In my view, the same reasons apply to Document 2 as are applicable to Document 1.

79 Having examined Document 2 I have formed the view that it would not be practicable to remove exempt matter from the Document in order to allow the Applicant access to it. Accordingly, it is my view that the University’s decision to refuse to release Document 2 to the Applicant was the correct and preferable one.

Document 3

80 Document 3 comprises a report prepared by the HREC following the investigation into the complaint and related documents. The report is a composite document that annexes several documents that the University asserts fall into a number of exemption categories.

81 An exemption is claimed under clause 6 because of the information concerning the personal affairs of the complainant and the individual who was the subject of the complaint. Ms Oakley submitted that it would be unreasonable to disclose the document for the reasons previously discussed. The University also asserts that the disclosure of document 3 would disclose information concerning the professional affairs of the University and the individual who was the subject of the complaint. Accordingly, an exemption is claimed under clause 7.

82 The University also claimed exemption under clause 9(1)(a)(ii) of schedule 1. It is asserted that document 3 is an internal working document and the disclosure would disclose consultation that has taken place. The University asserts that this is apparent from the face of the document. It relates to the decision-making function in that the decision was to be made as to whether there was a basis for disciplinary action against the individual who was the subject of the complaint.

83 Ms Oakley also submitted that document 3 is exempt pursuant to both clause 13(a) and 13(b) of schedule 1 to the FOI Act. She asserted that disclosure of both the report and the annexures would disclose information obtained in confidence and if disclosed it would involve a breach of confidentiality assurances. This could reasonably be expected to prejudice the future supply of such information to the University and that on balance that disclosure would be contrary to the public interest.

84 For the same reasons previously discussed, Ms Oakley also submitted that document 3 is exempt pursuant to both clause 16(a)(iii), in that it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel, and 16(a)(v), in that it contains matter the disclosure of which could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the University. She further submitted that on balance disclosure would be contrary to the public interest.

85 The Applicant opposed these assertions on the same grounds as previously discussed.

86 I agree with the University that document 3 is an internal working document and the disclosure would disclose consultation that has taken place. In my view, the document contains matter the disclosure of which would disclose consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the University. It is also my view that the document relates to the management or assessment by the University of its personnel and in my opinion disclosure of Document 3 would, on balance, be contrary to the public interest.

87 For the reasons previously given I do not agree with the Applicant’s submission in this regard.

88 Having examined Document 3 I have formed the view that it would not be practicable to remove exempt matter from the Document in order to allow the Applicant access to it. Accordingly, it is my view that the University’s decision to refuse to release Document 3 to the Applicant was the correct and preferable one.

Document 4

89 Document 4 comprises notes taken at a meeting of the HREC executive and the individual who was the subject of the complaint. Document 4 comprises notes taken during the preliminary investigation. They are not officially sanctioned minutes. The University concedes that the only personal affairs with which Document 4 is concerned are the personal affairs of the individual who was the subject of the complaint. However, the University asserts that this is not restricted to the personal affairs identified in Document 1. Additional information was discussed at the meeting and Document 4 contains more extensive information concerning the personal affairs. The University asserts that the individual who was the subject of the complaint gave only limited consent in that she agreed to the release of the document to the Applicant. She did not give consent to its release to the world at large.

90 The University also claims that this document is an exempt document under Clause 9(1)(a)(ii) of Schedule 1. It is asserted that document 4 is an internal working document and the disclosure would disclose consultation that has taken place. It relates to the decision-making function in that the decision was to be made as to whether there had been a breach of protocols and whether action for misconduct should be taken against the individual who was the subject of the complaint gave only limited consent in that she agreed to the release of the document. Part of the information was provided in confidence and there is recognition that a person who is the subject of complaints is entitled to have their confidentiality respected.

91 Ms Oakley also submitted that Document 4 is exempt pursuant to Clause 13(b) of Schedule 1 to the FOI Act. She asserted that disclosure of the document would disclose information obtained in confidence and if disclosed it would involve a breach of confidentiality assurances. This could reasonably be expected to prejudice the making of future complaints to the University and the candour of the persons the subject of the complaints being investigated. Ms Oakley further submitted that on balance that disclosure would be contrary to the public interest. Disclosures were given in confidence on the understanding that preliminary investigations concerning a person against whom a complaint was made are to be handled in confidence.

92 For the same reasons previously discussed, Ms Oakley also submitted that document 4 is exempt pursuant to both clause 16(a)(iii) and 16(a)(v) of schedule 1 to the FOI Act and that on balance disclosure would be contrary to the public interest.

93 The Applicant opposed these assertions on the same grounds as previously discussed.

94 I agree with the University that document 4 is an internal working document and the disclosure would disclose consultation that has taken place. In my view, the document contains matter the disclosure of which would disclose consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the University. I also agree that disclosure of the document would disclose information obtained in confidence and if disclosed it could reasonably be expected to prejudice the candour of the persons the subject of the complaints being investigated. It is also my view that the document relates to the management or assessment by the University of its personnel and in my opinion disclosure of Document 4 would, on balance, be contrary to the public interest.

95 For the reasons previously given I do not agree with the Applicant’s submission in this regard.

96 Having examined Document 4 I have formed the view that it would not be practicable to remove exempt matter from the Document in order to allow the Applicant access to it. Accordingly, it is my view that the University’s decision to refuse to release Document 4 to the Applicant was the correct and preferable one.

Document 5

97 Document 5 comprises draft minutes based upon the Document 4 notes and forwarded to the presiding member of the executive of the HREC. The University asserts that Document 5 is an exempt document for the same reasons asserted in relation to Document 4.

98 The Applicant opposed these assertions on the same grounds as previously discussed.

99 I agree with the University that document 5 is an internal working document and the disclosure would disclose consultation that has taken place. In my view, the document contains matter the disclosure of which would disclose consultation or deliberation that has taken place in the course of, or for the purpose of, the decision-making functions of the University. I also agree that disclosure of the document would disclose information obtained in confidence and if disclosed it could reasonably be expected to prejudice the candour of the persons the subject of the complaints being investigated. It is also my view that the document relates to the management or assessment by the University of its personnel and in my opinion disclosure of Document 5 would, on balance, be contrary to the public interest.

100 For the reasons previously given I do not agree with the Applicant’s submission in this regard.

101 Having examined Document 5 I have formed the view that it would not be practicable to remove exempt matter from the Document in order to allow the Applicant access to it. Accordingly, it is my view that the University’s decision to refuse to release Document 5 to the Applicant was the correct and preferable one.

Decision and Order

102 It is my view that the University’s decision to refuse to release each of the documents that are the subject of this application was the correct and preferable one. Accordingly, the University’s decision is affirmed.