University of South Australia v Miller
[2016] SADC 54
•3 June 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Freedom of Information Act)
UNIVERSITY OF SOUTH AUSTRALIA v MILLER
[2016] SADC 54
Judgment of His Honour Judge Slattery
3 June 2016
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REVIEW OF DECISIONS
Held:
1. The University of South Australia be granted permission to appeal against the decision of the Ombudsman under s 40(1) of the Freedom of Information Act;
2. Order for rescission the decision of the Ombudsman and confirmation of the determination of the University pursuant to s 39(11) of the Freedom of Information Act;
3. The respondent to have his costs as taxed or agreed.
Freedom of Information Act s 4, s 12, s 13, s 19, s29, s39, s 40(1), s 48, schedule 1 clauses 9, 13 and 16, referred to.
Stead v SGIC (1986) 161 CLR 141, discussed.
Department of Premier and Cabinet v Colin Thomas [2014] SADC 56; Elkincki v Civil Aviation Authority [2014] FCAFC 180; Annetts v McCann (1990) 170 CLR 596; Kioa v West (1985) 159 CLR 550; Applicant VEAL of 2002 v MIMA (2005) 225 CLR 88, considered.
UNIVERSITY OF SOUTH AUSTRALIA v MILLER
[2016] SADC 54JUDGE SLATTERY
The University of South Australia (the University) seeks permission to appeal against the decision made by the Acting Ombudsman (the Ombudsman) dated 7 October 2014 that an email was not an exempt document under the Freedom of Information Act (FOI Act). Under s 40(1)[1] of such an appeal requires the permission of the Court. This Court may only give permission where the appeal is on a point of law and where there are cogent reasons to depart from the determination of the Ombudsmen under s 42E[2] of the District Court Act.
[1] Section 40—Appeal to District Court
[2] 42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
In this decision, I will use acronyms or initials to describe the participants in the factual events, apart from the names of participants of the proceedings.
Dr Miller was an employee of the University. From 2012, he was employed in a number of positions commencing as a Senior Research Fellow on or about 30 April 2012 on a full time equivalent basis. On 20 December 2013, there was a role change for Dr Miller and he changed from a full time equivalent role to a casual position and he was employed as a Research Associate. On 17 November 2014 he was employed as a lecturer on a 0.40 full time equivalent basis. That lecturing contract has now terminated. Dr Miller informs the Court that he is now unemployed.
In evidence in support of this application, the University read the affidavits of Penelope L. E. Moore sworn 27 January 2015 (FDN3) and 4 March 2015 (FDN7). In response, Dr Miller read his two affidavits sworn 17 February 2015 (FDN4) and 6 March 2015 (FDN8). All of these affidavits were read into evidence without objection.
On 13 January 2014, the University received an FOI Act application from Dr Miller seeking access to a copy of correspondence between Dr PH to Ms KW about an investigation into alleged misconduct of Professor JHa. These allegations were made by Dr Miller. The University undertook the review and denied access to the document under cover of a letter to Dr Miller of 10 February 2014.
On 8 March 2014, Dr Miller asked the University to undertake an internal review of its decision. By letter of 24 March 2014, the University informed Dr Miller that upon undertaking its review, it determined to refuse access to the document. On 1 April 2014, Dr Miller informed the University of his intention to apply for an external review and on 16 May 2014 the University received a letter from the Ombudsman asking for a copy of the document and the submissions of the University. The University responded on 27 May 2014 and enclosed its submissions to the Ombudsman. On 27 August 2014 the University received the provisional determination and reasons of the Ombudsman and a request from the Ombudsman for further submissions before making her final determination.
The further submissions of the University were sent to the Ombudsman on 5 September 2014. The Ombudsman made a final determination on 7 October 2014 and it was received by the University on 10 October 2014 under the determination the Ombudsmen rejected the submissions of the University and ordered the production of the document.
Under its amended Notice of Appeal the University seeks permission to appeal on the following grounds:-
1. The Acting Ombudsman’s reasons for decision record (at paragraph 32) that the responded raised a number of new matters in his response to the Acting Ombudsman’s provisional determination. The Acting Ombudsman did not give the appellant any notice of these matters or any opportunity to be heard in relation to them. The appellant was denied procedural fairness accordingly.
2. It was not open on the evidence or other material before the Acting Ombudsman to find that the information in the document in dispute:-
a. Was publically available; or
b. Would be well known within the appellant’s School of Pharmacy and Medical Sciences, the industry, or both; or
c. Would, or should, have been disclosed to the respondent before or at the time his employment was terminated.
3. The Acting Ombudsman failed to actively intellectually engage with the statutory task – in clause 1(9)(b) of Schedule 1 to the FOI Act – of determining whether disclosure of the document would, on balance, be contrary to the public interest.
4. The Acting Ombudsman failed to provide reasons that met the standard required by s39(13) of the FOI Act.
5. The Acting Ombudsman’s conclusion – that on balance, she was not satisfied that releasing the document in dispute would be contrary to the public interest – was so unreasonable or irrational that no reasonable or rationable decision maker could have made it.
The operation of the FOI Act
Under s 12 of the FOI Act, any person has the right to be given access to an agency’s documents upon a request being made.[3] Once a request is received, an agency may grant, defer or refuse access (s 19 FOI Act) and if access is to be refused, the document must fall within the description of an exempt document (of which there are many classes) under the Act.
[3] Section 12, s 13 FOI Act.
Section 4 FOI Act[4] defines exempt documents. Schedule 1 prescribes a number of categories of exempt documents but here the University initially focused upon Part 3 Clause 9 – internal working documents. That clause reads as follows:-
[4] 4—Interpretation
Part 3—Other documents
9—Internal working documents
(1) A document is an exempt document if it contains matter—
(a) that relates to—
(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) the disclosure of which 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.
There is no contest that Clause 9(1)(a) has operation. The issue of controversy is whether disclosure of the document would, on balance, be contrary to the public interest. Under s 48 FOI Act,[5] the University must, following its determination (s 29(1) FOI Act) or on a review (s 39 FOI Act) justify its determination (s 48 FOI Act).
[5] 48—Burden of proof
The factual background
The investigation undertaken on behalf of the University had at its genesis a complaint by Dr Miller about the conduct of Professor JHa. The investigation received an email from Dr PH in the course of its work: the investigator did not elicit this email with a request to Dr PH and the letter was voluntarily provided by Dr PH. Dr PH is and was not then an employee of the University although he enjoyed adjunct rights at all material times.
The determination of the accredited FOI Officer of the University dated 10 February 2014 was that the release of the document would be contrary to the public interest in order to ensure efficient and effective conduct of University functions and to protect the personal information of an individual. Later in the response of the internal reviewer, the basis of refusal was broadened to Clauses 9, 13 (documents containing confidential materials) and 16 (documents concerning operations of agencies) of Schedule 1 of the FOI Act.
The provisional determination of the Ombudsman discloses the Ombudsman’s tentative view that the email was not an exempt document.
In its submissions to the Ombudsman, the University focussed on FOI Clause 13(1)(b)(ii), confidentiality, Clause 16(1)(a)(iii), documents concerning operations of agencies and Clause 9(1)(a)(ii), the public interest. Primarily, the University focussed on the (alleged) prejudice to the future supply of information.
The University submitted at paragraph 5.2.3 of its submissions as follows:-
5.2.3 The University considers people with knowledge of matters relevant to investigations might reasonably become reluctant to communicate with the University for fear of their confidential communications being released to third parties and/or made public.
5.2.4 Clause 13(1)(b)(i) relates to “such information” meaning such information as was provided. It is the University’s submission that the disclosure of information, such as the relevant email correspondence, would prejudice the future supply of similar information.
5.2.5 The University acknowledges that Dr H expressed an interest in providing information prior to being invited to do so. However, the University submits that although University staff may be willing to cooperate and provide information, the actual information provided may be limited to that which the individual staff member considers appropriate to be disclosed. Staff may not be forthcoming with relevant confidential material which may later be disclosed. In this way the disclosure of the subject email correspondence might reasonably expect to limit and prejudice the future supply of such information.
On the second ground the University submitted as follows:-
6 Clause 16(1)(a)(iii)
6.2 …the University submits that releasing the document would create a substantial adverse effect on the Universities that might reasonably be expected that staff would limit and modify the information they provide to the University to information which they consent to being made public.
6.4 The University is strongly opposed to any act such as the disclosure of the subject email correspondence which may jeopardise and detrimentally affect the University’s ability to obtain information and conduct fair and proper investigations in the future.
6.7 In order for the University to effectively and fairly manage its staff pursuant to the above section in the Uni SA Act it is essential that the University has the ability to undertake investigations relating to the conduct of its staff in an appropriate manner. In the course of such investigations it is not uncommon for confidential information to come to light. As expressed above, it is reasonable that staff may not be willing to provide confidential information where that information may later be disclosed. This will subsequently jeopardise the procedure and, hence, the principles for the sound and fair management of the University and its staff.
6.8 An integral part of the procedure and the University’s compliance with s 7(1) of the Uni SA Act is the ability for staff to provide confidential information to the University when necessary.
8 Public interest test
8.2 The concept of public interest required the weighing of the public interest factors for and against disclosure and to decide on balance whether the disclosure is contrary to the public interest.
8.4 The University submits on the balance of public interest factors for and against disclosure, the disclosure of the document is contrary to public interest as it will have adverse effects on the University’s operations and the University will suffer substantial impairment.
8.8 Fundamentally the University submits that the public interest test, on the balance of all relevant factors is in favour of non-disclosure. The University submits the disclosure of the document interferes with and threatens the way the University performs its functions.
The determination was then made by the Ombudsman. In the meantime, the Ombudsman received further submissions from Dr Miller but they were not seen by the University and the content of them was not brought to the attention of the University. The University was not given any opportunity to respond to them if it so chose; the University was not told of the substance of them. This is somewhat peculiar. I can think of no reason why the Ombudsman would not at least have informed the University of the substance of these further submissions. I accept there are questions of degree: if there was a repeat of previous material received from Dr Miller I would not expect the Ombudsman to raise such matters with the University other than to inform the University that further submissions had been received and a very general description of them given. Conversely, if the further submissions contained material that was new and in particular, was to be taken into account, I would expect that the University would receive notice of the submissions, a copy of them and an invitation to respond to them. This is little more than the application of ordinary common sense.
There was no challenge before me to the proposition that the Ombudsman needed to provide procedural fairness to the parties: viz Exhibit P1. However, when addressing this issue, in another context, the Ombudsman said:-
The intention of providing the parties with a provisional determination to which they can respond is to afford them with procedural fairness. The provisional determination was provided to you, the agency, and the interested parties. You and the agency provided submissions in response. The submissions did not prompt the Acting Ombudsman to change her determination, however. Therefore, as the outcome of the provisional and final determination were the same, the Office did not consider it necessary to seek further submissions from you or the agency in response to the submissions made by the other party about the provisional determination. If the Ombudsman was expected to provide all submissions to the parties for further comment, it would undoubtedly prove extremely difficult to bring reviews to a conclusion.[6]
[6] Exhibit P1 – portion of email from Tonya Nielsen to Dr Darren Miller dated Tuesday 17 March 2015.
The University submits that this conclusion is wrong at law and I accept that submission. It is one thing to make that finding but it is an entirely different matter to ascertain if that makes any difference. This requires a survey of the relevant material and the decision making process of the Ombudsman. It is to that process that I now turn.
On 7 October 2014[7] the Ombudsman published her final determination together with her reasons.[8] The reasons described the application for access, the background by a reference to the appendices, jurisdiction, the provisional determination, the relevant law, the documents in issue, the issues in the review and then a consideration of the parties’ submissions. At paragraph 32 of the reasons, the Ombudsman summarises the further submissions of the applicant. These had never been seen by the University. Redacted in the usual way, they read as follow:-
[7] Exhibit P1 page 64.
[8] Exhibit P1 pages 65 et seq.
32. In response to my provisional determination, the applicant repeated some of his previous submissions. In addition, he submitted that:
· he was “head hunted”… due to… [his] expertise in the area of production and use of genetically modified viruses for vaccine purposes;
· during his employment, he was directly responsible for ensuring strict compliance with occupational health and safety (OHS) and the Office of the Gene Technology Regulator (OGTR) legislations;
· he encountered significant opposition from both Associate Professor Ha and Dr PH… to comply with the … legislation, because of Dr H’s view it was unnecessary, expensive and stifled the pipeline to the clinic;
· when he joined the laboratory, he was concerned that the agency did not have even the most basic procedures for application to the OGTR… and that Associate Professor Ha was the chair of the Uni SA Institutional Biohazards Committee.
· His allegation of misconduct against Associate Professor Ha was made after he received:
oAn exploitative-laden phone call… in this phone call he informed me that my employment was terminated because I had offered informed, prophylactic, occupational-vaccination to members of staff (five individuals). These staff members worked with and could have been potentially infected with the genetically modified human pathogen we were working on… in summary I was made redundant from this position because of my continued compliance with OHS and OGTR legislation.
oAssociate Professor Ha
§Has had inappropriate and abusive outbursts… against young students in his laboratory.
§Had been the subject of a similar complaint regarding abuse by another staff member who did not pursue the matter.
§Has a reputation of abusiveness within the general Adelaide scientific community.
oThe agency is
§Not effectively managing or investigating complaints or assessing effectiveness or ensuring that only fit and proper persons and in particular those who interact with students are employed because both Associate Professor Ha and Dr H are still employed at senior management levels… the inappropriate actions of Associate Professor Ha and Dr H need to be fully documented… the requested document will provide addition credence to my claims and will also inform the institution of ways to better manage senior staff members… Dr H is complicit in protecting... Associate Professor Ha… instrumental in the loss of my employment including continuing bans to return to my usual place of employment, deception of Uni SA in his submissions to Uni SA regarding an internal investigation including false, defamatory and derogatory information about myself. Dr H has behaved in an unacceptable manner which is not consistent with what would be expected within a higher education institution and is in breach of the Uni SA Code of Ethical Conduct.
§Withholding the document encourages aggrieved individuals to provide false statements that… potentially expose the general community/environment to genetically modified human pathogens.
§He rejects the agency’s submissions that the outcome of his complaint was largely favourable to him, stating instead that it was extremely detrimental to my future employment opportunities, and which may deter other similarly vigilant Uni SA employees… reporting other breaches of legislation.
§The document would allow him to review his performance, as perceived by a previous employer.
At one level and perhaps in a number of contexts, each of these matters are both intuitively and intrinsically important. They are significant and important assertions because of their obviously potentially damaging effect and they would need to be addressed in the usual course, particularly if this process included some determinations about the correctness of the complaint made by Dr Miller. But it is essential to state at the outset here that this is not such an enquiry; it is not the role of the Ombudsman to descend into the arena of the complaint made by Dr Miller. An assertion for example about exposure to genetically modified pathogens is self-evidently of a most serious nature. The opportunity to respond must be given to the University and those involved to provide a response. And contrary to the assertions of fact in Dr Miller’s material, Dr H is not and was not an employee of the University.
These new matters were also taken into account by the Ombudsman. The Ombudsman considered Clause 13(1)(b)(i), Clause 16(1)(a)(iii) and Clause 9(1)(a)(ii). At [44] of her final determination, the Ombudsman accepted the agency’s claim that the document (sought) contained matters that relate to a consultation or deliberation that has taken place in the course of the agency’s decision making function. The Ombudsman then considered the public interest test and said at [45]-[48] inclusive as follows.
Public interest test
[45] Given my view that Clause 9(1)(a)(ii) has been satisfied and that the agency received the document under an inferred understanding of confidentiality as required by Clause 13(1)(b) I will consider whether or not the public interest test has been met.
[46] Public interest considerations relevant to this matter are:
· Fulfilling the objects of the FOI Act;
· Ensuring transparency of the agency’s decision making process;
· Ensuring accountability of the agency and its staff;
· Individuals receiving fair treatment in accordance with the law, being accorded procedural fairness within the administrative processes of Government and having access to what is recorded about them.
[47] In considering the public interest, I have had regard to the factors referred to in the paragraph above. I have considered:
· The fact that the document is clearly about the applicant;
· The fact that the applicant, Associate Professor Ha and Dr H were all employees of the agency;
· The applicant’s junior position in the agency compared to that of Associate Professor Ha and Dr H;
· Information in the document;
oIs publicly available; or
oWould be well known within the agency’s School of Pharmacy and Medical Sciences, the industry or both; or
oWould, or should, have been disclosed to the applicant before or at the time his employment was terminated.
· The applicant’s claim about events following the investigation, particularly his unemployment
oThe applicant’s stated motive for seeking access to the document;
oThe agency’s stated purpose for the creation of the document;
oThe agency’s claim that the document did not influence the outcome of the investigation;
oThe importance of the agency being able to manage its staff;
oThe importance of the agency being able to identify and investigate issues concerning its staff and its reliance on information from witnesses in order to do so;
oThat expectations of confidentiality are always subject to the provisions of the FOI Act and cannot be affected by any representation… that greater confidentiality might be recorded to material other than properly affects the effect of the FOI Act.
It is apparent that the Ombudsman has taken into account the further matters put to her by the applicant when reciting these factors to which she has had regard when reaching her decision. They are reflected in the bullet points set out in [46] and [47] of her decision that I have set out above. But stating that proposition does not inform what weight may have been given to those matters apart from the fact that they appear to have been accepted by the Ombudsman. And there is no evidence of the Ombudsman deliberating upon those matters and assessing them in light of other facts or considerations. No reasoning process is disclosed apart from an implicit acceptance by the Ombudsman of all of these matters.
Then in [49] of her decision the Ombudsman said as follow:-
[49] In response to my provisional determination, the agency submitted that if one or more of the exemption clauses that contains a public interest test is satisfied, that may be an indication that disclosure would not be in the public interest, especially where the elements are easily satisfied.
The Ombudsman (not the decision maker involved here) was critical of such advice contained in an earlier version of state record guidelines in his recent order. He commented:
In my view this guideline is not as clear as it could be. For the unsuspecting, it may suggest that to justify an exemption clause that has a public interest test, it is sufficient to focus only on establishing the initial criteria or the harm test…
A similar concept was critiqued in a Queensland review of its FOI legislation, where it was stated in relation to the Queensland Information Commissioner’s Guidelines:
The application of these guidelines would seem to turn the public interest from a balancing exercise to one where there is a presumption that once the basic elements of the exemption are satisfied, the public interest will ordinarily favour non-disclosure.
There is no evidence that these further matters were ever raised with the parties nor is there any consideration of the status of what appears to be the result of a review by (another) Ombudsman of a state records guideline and what, if any, status those comments of the (other) Ombudsman have in the determination of this matter. I am at something of a loss to understand how those matters could be relevant in respect of the considerations before me and before the Ombudsman. Although I have significant misgivings about the generalist nature of these comments, I am not in a position to make any assessment of them on the materials before me.
Then at paragraph [50], of her decision the Ombudsman says as follow:-
[50] On balance, I am not satisfied that releasing the document would be contrary to the public interest.
The Ombudsman does not explain what matters that she has weighed in the balance to achieve her decision. The Ombudsman does not disclose how she has struck a balance and what considerations (accepting only for the sake of discussion that there has been some form of process of achieving a balance) that she did take into account, weigh in the balance and make a decision about those matters which were more persuasive than others.
The decision of the Ombudsman does not disclose even the most perfunctory process of reasoning leading to the decision. I am not saying that the Ombudsman should deliver lengthy and detailed reasons on every issue but the decision of the Ombudsman must at least disclose some recognisable and identifiable process of reasoning on the important issue(s) then under consideration.
This has not occurred in this case. This process is particularly important in a case such as this because of the matters earlier alluded to about ensuring a clear distinction is maintained between what the Ombudsman is required to decide and the work of any enquiry following a complaint by Dr Miller. A failure to properly maintain this distinction will possibly lead to error.
That said, I am satisfied that the Ombudsman has received these further materials as they are reflected in the fifth, sixth, seventh, eighth, ninth and eleventh bullet points under [32] of the reasons. I am satisfied that the Ombudsman has taken those matters into account. So much is obvious from a comparison of the matters within a further submissions of the applicant Dr Miller and the comments of the Ombudsman. Those matters are contained within a chart prepared by the University. I will not attempt to paraphrase the chart and it is appropriate that I set it out as an annexure of this judgment.
From the recitation of the above material, I accept the submissions of the University and I am satisfied that the Ombudsman has taken the further submissions of the respondent into account when reaching her decision.
At [47] of her decision in the fourth bullet point, the Ombudsman states that the information in the email was publicly available, or should have been well known within the agency’s School of Pharmacy and Medical Sciences, or the industry, or both, or would or should have been disclosed to the applicant before or at the time the employment was terminated. It is unclear to me how the Ombudsman could have concluded that the document is publicly available, was as well known as she opined and would or should have been disclosed to the respondent before or at the time that his employment was terminated. It is to be recalled that the functions of the Ombudsman are administrative. They are not intended to be nor could it be countenanced that they would in any way involve any aspect of review of the employment of the applicant Dr Miller or any circumstances surrounding the ending of that employment. A question immediately arises from these matters of how it could be said that Dr Miller’s employment was terminated. Is it to be said that if an employment contract period ends and is not renewed that a person’s employment is thereby terminated? This may appear to be a novel proposition. If a contractual period comes to an end, it having been mutually agreed between the parties that the contract would last for only a stipulated period, then on ordinary concepts, the contract comes to an end. There is no concept of termination by one party or the other in the legal sense because the contractual period ends. It is a circumstance of the expiration of the contract itself. If any relationship is to continue then it must be as a result of an agreement of both parties. I have not been able to discern any evidence or suggestion that there was a mutual expectation that every contract of every person in the position of Dr Miller would continue to be renewed. Questions arise at a general level such as whether the funding of the research centres at Universities is labile. If that is the case decisions may need to be made according to circumstances and what is in the best interest of the research institution. This is not the appropriate forum to ventilate such issues but they are matters of ordinary common sense.
I will assume for present purposes that the Ombudsman has been satisfied about those matters as a result of the materials submitted by Dr Miller but which have not been seen by the University. I have significant doubt about the correctness of the legal analysis made by the Ombudsman. Leaving that matter aside, I consider the failure of the Ombudsman to make the University aware of all of these matters to be a fundamental error by the Ombudsman who has formed her view on balance based in part upon material put to her by the applicant Dr Miller but not seen, considered or addressed by the University. I will also leave aside the concerns that I have about the questions of the accuracy of that same material put to the Ombudsman. I have concluded that the actions of the Ombudsman to receive the further material, consider it, act upon it and fail to give the University any opportunity to address it before making the decision are an error which vitiates the decision of the Ombudsman.
The question for my consideration is whether that error is sufficient to justify a grant of leave. I turn now to that question.
The appropriate question to address is whether the Ombudsman’s conclusion falls outside of the range of conclusions that were reasonably open to her: that is a question of law.[9] The University contends for two reasons that the conclusion of the Ombudsman falls outside of the range of conclusions that were reasonably open to her. The first is, as I have found, the Ombudsman failed to comply with the principles of procedural fairness. The second is whether the disclosure of the document would, on balance, be contrary to the public interest.
[9] Department of Premier and Cabinet v Colin Thomas [2014] SADC 56 at [11].
On the first, there are principles that may be stated as reflecting the current legal position in Australia, as follows:-
1. The question is whether or not procedural fairness has been afforded, is a question of law.[10]
2. If the FOI Act confers a power to prejudice the rights or interests of the University, principles of procedural fairness generally regulate the exercise of that power.[11]
3. On these principles, it was necessary for the Ombudsman to give the University an opportunity to deal with the new information that was, in some way instrumental in the Ombudsman’s decision making process.[12]
4. This is particularly the case where the Ombudsman has recited and, viewed objectively, has relied upon that further information supplied by Dr Miller by taking it into consideration.[13]
[10] Elkincki v Civil Aviation Authority [2014] FCAFC 180 at [90].
[11] Annetts v McCann (1990) 170 CLR 596 at 598.
[12] Kioa v West (1985) 159 CLR 550 at 629.
[13] Applicant VEAL of 2002 v MIMA (2005) 225 CLR 88 at [17].
The Ombudsman has proceeded on the basis that all three participants were employees; Dr H was not an employee at the relevant time and this is an error made by the Ombudsman. The importance of this fact seems to be that the Ombudsman has treated this matter as turning to an extent at least upon the question of the ongoing employment of Dr Miller and his alleged removal from his employment based upon the content of the document. On the material before me, it is not possible to draw that connection with sufficient strength such that a judgment can be made about those factors. As I have already indicated above, where an agreement between two parties for the provision of services for a set period comes to an end, there is no obligation upon either of the parties to treat the contract as ongoing, nor is there any right in either of the parties to call upon the other parties to perform the contract as if it were ongoing. Once the time period stipulated in the contract comes to an end, then that contract itself is at an end. It ends because it expires in accordance with the terms of the parties’ agreement. A decision may be made not to renew such a contract because of dissatisfaction with the performance of the person in the position of Dr Miller. If it be assumed, for the sake of discussion, that this is just such a case, the holding by one party of an attitude of dissatisfaction that leads to the refusal to renew a contract is not usually a matter that involves questions of the public interest. It may be a matter that is contractually based but there is no evidence of, for example, a right or of an expectancy of a renewal and logically it can be put to one side. It may be a matter that involves the operation of the industrial law but it is sufficient only to state that proposition to know that the public interest has no part to play in such a dispute. This seems to have been the process of reasoning of the Ombudsman but, in my view, it addresses the wrong question.
I consider that the Ombudsman was not necessarily in a position to identify the alleged connection between the content of the email and the fact of termination; but I have assumed that factually the contentions of Dr Miller are correct. I have assumed the correctness of that contention for the purpose of this discussion. A resolution of competing contentions on that topic requires the canvassing of a broad spectrum of facts, issues and principles. This is not the appropriate forum for that exercise to occur. Nor is it the appropriate forum to, as it were, “second guess” the decision making of the University concerning Dr Miller’s role and future. The decision of the University not to offer any further contract to Dr Miller may be justifiable on a very broad range and number of considerations. Any decision on that topic is for another place.
Once those considerations are removed, it would only then become possible to properly analyse the factual position: a complaint made to a University about the behaviour of one of its senior academics in his teaching role, his management of research projects and accountability having proper regard to University rules and regulations. Any information provided to such an enquiry in that context about the complainant and received in confidence will rarely, if ever, require disclosure. That view will not, by extension of logic necessarily apply to the findings of such an enquiry but that again is another issue for another place. These comments again emphasise the difference between these two considerations and the danger of merely treating them in some hybrid way.
On that analysis, the question of the public interest takes on a different dimension. This is because the process of the enquiry is a private matter within the University processes and it must observe certain protocols and procedures. It is the response to the complaint. It is difficult to conceive how the disclosure of documents received in the course of such an enquiry can be other than contrary to the public interest but in the end that is a matter that I do not need to decide here. This is because the enquiry is charged with the investigation of serious allegations about the past conduct of one of the senior academics and a person who has a supervisory role in a research institution attached to the university. Those are matters of real importance.
I accept the submission of the University that the new submissions of Dr Miller were adverse to the University because, by their nature, they responded to the position put by the University and must (at least in the mind of Dr Miller) have been responsive to its submissions. I also accept the submission of the University that objectively assessed, the Ombudsman did not dismiss those further considerations on the basis that they were evidently not credible nor relevant or of little or no significance to the decision (see VEAL at [17]). For the reasons already expressed I consider such a process of reasoning was flawed but I need not develop that further here.
I have earlier set out the contents of the reasons published by the Ombudsman and these demonstrate the correctness of the submission put by the University. Similarly, the reasons published by the Ombudsman disclose objectively her consideration and reliance upon those matters as well as to state as a fact (but without any obvious foundation) that the document is publicly available and was notorious within the relevant school of the faculty. On all of the materials that I have seen, I am unable to comprehend how the Ombudsman has reached that conclusion and I consider that it has been made without any foundation.
In Stead v SGIC[14] the High Court heard an appeal from the Supreme Court of South Australia concerning the sequelae of injuries suffered by the plaintiff arising from a motor vehicle accident. Some of those sequelae became apparent shortly after the accident. The question of the appeal concerned evidence of a psychiatrist called by the defendant. When the defendant made his closing address, the trial Judge discussed the evidence of that psychiatrist with counsel for the defendant. When the plaintiff addressed, the trial Judge informed plaintiff’s counsel that he would not take the evidence of the psychiatrist called by the defendant into account. As a result, counsel for the plaintiff did not further address the evidence given by the psychiatrist or why, for example, that evidence should not be preferred to the psychiatric evidence given on behalf of the plaintiff.
[14] (1986) 161 CLR 141.
Then in his judgment, the trial Judge accepted the evidence of the psychiatrist called by the defendant that he had already earlier said he would not rely upon. In relying upon that evidence, the trial Judge found that outside stressors were the cause of the physical ailments of Mr Stead. An appeal to the Full Court was dismissed. The Full Court decided that even if further argument was permitted it could not have made any difference to the result. After considering all of these matters the High Court held at pages 145-146 as follows:-
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal… in Jones v. National Coal Board, in these terms:
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.
An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact…
However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
Then at page 147, the Court held as follows:-
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
I am satisfied that based upon the recital of facts that I have earlier set out, the University has been deprived of the possibility of a successful outcome as I am not satisfied that a properly conducted consideration of the relevant matters could not have produced a different result. In my opinion the University must succeed on this ground alone and I would grant permission to appeal on this ground.
The University submitted that there are other reasons why permission should be granted. It submitted that the decision of the Ombudsman was vitiated by errors of law and that there were therefore cogent reasons for departing from that decision. Those errors of law allegedly fell into two broad categories. The first was to be found in clause 5 of the amended Notice of Appeal namely that the Ombudsman’s conclusion that on balance she was not satisfied that releasing the document in dispute would be contrary in the public interest was so unreasonable or irrational that no reasonable or rational decision maker could have made it. I have earlier indicated that I accept that the question arising under that ground is a question of law. The main submission of the University was that the conclusion of the Ombudsman in relation to the question of public interest fell outside of the range of conclusions that were reasonably open to her and did so for two main reasons. The first was that the disclosure of the document would fail to protect the integrity of the University’s internal investigation process and the second was that there was no countervailing public interest in disclosing the email. The University contended that the first broad reason namely the protection of the integrity of the University’s internal investigation process was a strong or powerful public interest in not disclosing the document and contended that the Ombudsman should have made a decision that the disclosure of the document would be contrary to public interest. It contended that to decide otherwise would be irrational or unreasonable. The public interest aspect is where that the University should be able to investigate complaints sufficiently and effectively and so there is a real interest in protecting the integrity of that process. That process would be compromised if the supply of information to the University investigators was somehow prejudiced. There are many examples of such prejudice such as witnesses being unwilling to come forward or to provide information or to make a fulsome statement to investigators.
Conversely, there was no public interest in the disclosure of the email. The University submitted, and I agree, that there was no basis in evidence or arising by way of inference to substantiate any contention that the email was publicly available or that its contents were well known. The evidence before the Ombudsman was that the email was provided on a confidential basis. That was the way in which the Ombudsman proceeded in her provisional determination however in her final determination she reversed the position that she had taken earlier where she found that the email was not provided in circumstances of confidentiality. It is difficult to comprehend how it could be thought that such an email was not provided in circumstances of confidentiality. In any event, the Ombudsman did change her position in her final determination. Also, the recipient of the document agreed to keep it confidential and the provider of the document specifically objected to the disclosure of the document to any other person. I find that there is no basis to infer or to find that the email was publicly available or that its contents were otherwise well known. In my view, the finding of the Ombudsman on that basis is in error.
The second reason submitted by the University was that there was no basis to contend that the contents of the email should have been provided to the respondent because the nature of the investigation undertaken did not create the need to hand it over to the respondent nor was it necessary under the terms of the respondent’s employment relationship with the University for the University to provide the email or its contents to the respondent. That would be determined by a wholesale review of the employment relationship, the documents evidencing that relationship and an understanding of the history of the relationship as it developed. None of that evidence was before the Ombudsman. It is not before me.
And this leads into the third aspect namely that it was not the role of the Ombudsman to determine whether or not there had been a termination of the employment contract or whether, if there had been a determination, that such determination had occurred in circumstances where it could be called a wrongful determination. As I have already indicated earlier, the only reliable evidence available suggests that there were employment contracts for set periods of time. There were different employment contracts for different periods of time over a number of years. There was no fresh contract even though I have assumed that there was no further contract because of his dissatisfaction with the performance of Dr Miller. However, this proposition underscores again the error of the Ombudsman. It was not her role to descend into the arena of any dispute about the refusal of the University to give a further contract to Dr Miller: the relevant framework of consideration was information provided in confidence to a private internal enquiry commenced in response to the allegations made by Dr Miller. I consider that the Ombudsman has not kept these two matters sufficiently distinct in her consideration and that failure had led her into error.
It is not and was never the place of the Ombudsman to become involved in issues that occurred before the complaint was made, which led to the enquiry and which, in turn, were the genesis of the email. In so doing, there is a significant prospect that limitations upon the administrative role of the Ombudsman will become uncertain. The contentions of Dr Miller that he was wrongfully terminated for breach of contract or that in any sense he was made redundant fall entirely outside of the areas of consideration of the Ombudsman. Properly assessed, there was no public interest in disclosure of the email on that topic. In my opinion, the material before the Ombudsman did not justify any enquiry on that matter or any finding on that basis.
Finally, when consideration is given to the reasons stipulated by Dr Miller for provision of the email, no interest is disclosed. Dr Miller’s first motivation was to provide additional credence to his claims made to the agency following the investigation. He appears to have sought additional material to lend greater credence to claims that he was making after the investigations. In my opinion, this is not an appropriate basis upon which to seek the document and does not fit within the public interest test.
The second motivation allegedly related to the way in which the University managed its senior staff members. It was put as follows:-
Requested document will provide additional credence to my claim and will also inform the institution of ways to better manage senior staff members.
There is no basis for the Ombudsman to make any finding one way or the other on this contention. A number of unanswered questions arise. Now is it to be said that there was a need for the institution to better manage its senior staff members? On what basis could an objective assessment be made of the way the institution managed the matter and how it could better manage those matters. These are not enquiries for an Ombudsman.
Finally, the document was said to allow Dr Miller to “review his performance as perceived by a previous employer.” It is unclear what this means. There is no identification of who is the “previous employer” who is reviewing his employment. A natural question arises about why a previous employer (whoever that person or entity may be) would now want to review his performance in light of something that Dr Miller might find. It might be relevant to a future employer but not to a previous employer.
The University contended that none of these matters whether taken alone or in combination gives rise to any public interest in the disclosure of those documents. The University submitted that the credence motivation is private not public and I accept that submission. Even if I am wrong in that assessment, I cannot see that the disclosure of the document would be necessary so that Dr Miller could provide additional credence to claims made to the University after an investigation or that it could be relevant to a review of his performance as perceived by a previous employer. It is not obvious how it could be related to informing the University of ways to better manage its senior staff. I am satisfied that for all of those reasons, no public interest in disclosure is raised. I also accept that the contract coming to an end is a purely private matter and does not raise any matter of public interest. The contract came to an end in December 2013 and it was not a matter about which the Ombudsman was put on enquiry. In those circumstances there was a public interest in not disclosing the email because it was marked “private and confidential”, it was stipulated as not to be disclosed and conversely there was no public interest in disclosing it. I therefore accept that the submission of the University that the conclusion of the Ombudsman to the contrary was so irrational or unreasonable that it fell outside of the range of conclusions that were reasonably open to her. The conclusion was vitiated by an error of law. On that basis I would rescind that decision.
I make the following orders:-
1. That pursuant to s 40(1) of the FOI Act, the University be granted permission to appeal against the decision of the Ombudsman;
2. The appeal be allowed;
3. That the decision be rescinded and in lieu thereof there be an order pursuant to s 39(11) of the FOI Act that the determination of the University be confirmed;
4.
That the University pay the respondent’s reasonable costs as taxed or agreed.
Annexure A
Bullet point New claim Relevance 5 “In summary, I was made redundant from [my] position because of my continued compliance with OHS and OGTR legislation”. The Acting Ombudsman considered “the Applicant’s claims about events following the investigation, particularly his unemployment”: [47]. 6 Associate Professor Ha had “inappropriate and abusive outbursts against young students in his laboratory”, had been the subject of a similar complaint regarding abuse by another staff member, and had a reputation of abusiveness within the general Adelaide scientific community. The Acting Ombudsman had regard to the public interest in ensuring the accountability of the University and its staff: [46]-[47]. 7 The University is not effectively managing or investigating complaints. The Acting Ombudsman had regard to the public interest in ensuring the accountability of the University and its staff: [46]-[47]. 7 The Email will “inform the [University] of ways to better manage senior staff members”. The Acting Ombudsman had regard to the Applicant’s stated motive for seeking access to the Email: [47]. 7 Dr H is “instrumental in the loss of my employment including continuing bans to return to my usual place of employment”. [Note: the application for external review referred to a ban from attending his usual place of work, which resulted in his unemployment.] The Acting Ombudsman had regard to the Applicant’s claims about events following the investigation, particularly his unemployment. 8 Withholding the Email “encourages aggrieved individuals to provide false statements that potentially expose the general community/environment to genetically-modified human pathogens”. The Acting Ombudsman had regard to the public interest in ensuring the accountability of the University and its staff: [46]-[47]. 9 The outcome of his complaint was “extremely detrimental to [his] future employment opportunities” and may deter “other similarly vigilant [University] employees reporting other breaches of legislation”. The Acting Ombudsman had regard to the Applicant’s claims about events following the investigation, particularly his unemployment: [47]. The Acting Ombudsman also had regard to the public interest in ensuring the accountability of the University and its staff [46]-[47]. 11 The Email would allow Dr Miller to review his performance “as perceived” by a previous employer. The Acting Ombudsman had regard to the Applicant’s stated motive for seeking access to the Email: [47].
(1) An agency that is aggrieved by a determination made on a review under Division 1 may, with the permission of the District Court, appeal against the determination to the District Court on a question of law.
(1)In this Act, unless the contrary intention appears—
exempt document means a document that is an exempt document by virtue of Schedule 1.
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
0
8
0