Van der Wall v University of Sydney

[2008] NSWADT 213

CITATION:	Van der Wall v University of Sydney [2008] NSWADT 213
DIVISION:	General Division
PARTIES:	APPLICANT Hans Van der Wall RESPONDENT University of Sydney
FILE NUMBER:	083076
HEARING DATES:	25 July 2008
SUBMISSIONS CLOSED:	25 July 2008
DATE OF DECISION:	1 August 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Access to documents – internal working documents - professional affairs – confidential material
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
CASES CITED:	Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 Howell v Macquarie University [2008] NSWCA 26 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Harris v Australian Broadcasting Corporation (1983) 78 FLR 236 Bennett v University of New England [2000] NSWADT 8 University of NSW v McGuirk [2006] NSWSC 1362 Cianfrano v Director General, Premier’s Department [2007] NSWADT 216
REPRESENTATION:	APPLICANT In person RESPONDENT J Oakley, barrister
ORDERS:	The Tribunal varies the decision under review in respect of the first three pages of Document 1 (numbered 1 to 3) and the first two pages of Document 2 (numbered 10 to 11), which must be released to the Applicant within 28 days after the date of this decision, but otherwise affirms the decision.

REASONS FOR DECISION

1 This is an application by Dr Hans Van der Wall for the review a decision of the University of Sydney (‘the University’) made under the Freedom of Information Act 1989 (‘the FOI Act’) to refuse Dr Van der Wall access to documents sought by him.

Background

2 On 5 December 2007, Dr Van der Wall applied to the University for access to documents concerning the appointment of Dr Michael Fulham to the position of Adjunct Professor in the School of Information Technologies. In particular, Dr Van der Wall requested:

“1. Dr Fulham’s application for promotion to the academic title of Professor.

2. The Referees’ reports on Dr Fulham’s suitability for such a position as provided by Dr Fulham.

3. The minutes/written reports of the University of Sydney committee that considered Dr Fulham’s application for academic title and its recommendations regarding the grant of this title.

4. The formal documents granting approval of this title to Dr Fulham from the Senate of the University of Sydney.

5. Communications to and from any body external to the University of Sydney supporting the grant of this academic title to Dr Fulham.”

3 On 10 December 2007, the University’s FOI Coordinator acknowledged receipt of Dr Van der Wall’s application and notified him that it was consulting Dr Fulham to obtain his views as to whether the documents sought were exempt pursuant to the ‘personal affairs’ exemption set out in Schedule 1, clause 6 of the FOI Act .

4 On 17 January 2008, the Registrar of the University, Dr William Adams, determined that the documents to which Dr Van der Wall sought access were exempt pursuant to the ‘personal affairs’ exemption. On 27 January 2008, Dr Van der Wall sought a review of this decision. On 13 February 2008, the Acting Vice-Chancellor (Research), Professor Merlin Crossley, confirmed the Registrar’s decision, noting that Dr Fulham had been consulted and had objected to the release of the documents on the ground that release would constitute an unreasonable disclosure concerning his personal affairs.

5 On 3 March 2008, the FOI Coordinator wrote to Dr Van der Wall stating that an error had been made in dealing with his FOI application and it had been assumed that the application had been in relation to Dr Fulham’s appointment as a Clinical Professor in the Faculty of Medicine rather than his appointment as an Adjunct Professor in the School of Information Technologies. The University would, therefore, now consider Dr Van der Wall’s application in relation to the correct set of documents, but it would again be necessary to consult Dr Fulham about this.

6 On 27 March 2008, Dr Van der Wall’s review application was filed with the Tribunal.

7 By letter dated 15 April 2008, the Registrar, Dr Adams, notified Dr Van der Wall that he had determined that the relevant documents were exempt pursuant to the ‘personal affairs’ exemption because they concerned Professor Fulham’s personal affairs. Dr Adams noted that he was persuaded by Professor Fulham’s objection that the release of the documents would cause him further distress and embarrassment and possibly damage his professional reputation, and it would be an unreasonable disclosure of information concerning his personal affairs.

The Relevant Legislation

8 The objects of the FOI Act are stated in section 5, as follows:

5 Objects

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
9 Pursuant to section 16(1) of the FOI Act , “[a] person has a legally enforceable right to be given access to an agency’s documents”. However, section 25(1)(a) states that an agency “may refuse access to a document” if it is an “exempt document”, the onus being on the agency to establish this. Section 25(4) 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 it appears to the agency that the FOI applicant would wish to be given access to such a copy.

10 Section 6(1) defines ‘agency’ as including a ‘public authority’ (a term defined in section 7(1) so as to include a University established in NSW), and ‘exempt document’ as including a document referred to in any one or more of the provisions of Schedule 1. The exempt documents in Schedule 1 include, relevantly, those specified in clauses 7, 9 and 13, which are relied on by the University in these proceedings. The University no longer relies on the ‘personal affairs’ exemption set out in clause 6. The relevant provisions of clauses 7, 9 and 13 are as follows:

7 Documents affecting business affairs

(1) A document is an exempt document:

...

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

(i) would disclose information (other than trade secrets, commercial-in-confidence provisions 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.

...

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:

...

(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.

The University’s Evidence and Submissions

11 The University provided affidavits from Dr Fulham, dated 18 July 2008, and Ian Dunbar, dated 16 July 2008. At Dr Van der Wall’s request, Mr Dunbar gave evidence at the hearing.

12 Ian Dunbar. Mr Dunbar said he has been the Head of Recruitment at the University for just over a year and has over 12 years experience in senior human resources management roles. He manages a team of specialist recruitment staff supporting the Deans, Heads of Schools and other senior managers in the process of recruiting academic and general staff. His role includes providing advice to senior management on University recruitment policies, procedures and strategies. He is conversant with the FOI Act.

13 Mr Dunbar said that fundamental to the effectiveness of the University’s recruitment and selection processes is the maintenance of confidentiality in relation to applications, referees’ reports and selection reports for both paid positions and honorary titles. This is the accepted convention both in the Australian academic community and more broadly, and the University adheres strictly to this practice. As a result, there is an expectation of confidentiality on the part of both candidates and referees. In general, a candidate for a position will supply a list of referees for the University to contact. In the vast majority of cases, referees do not provide a copy of the reports/references to the candidate. The University informs prospective referees that references are treated as confidential.

14 Mr Dunbar stated that applications for academic positions and honorary titles commonly include sensitive information about the individual’s research activities, which could be compromised if such information were disclosed. Even the disclosure of the fact that a person has applied for a position could be embarrassing for the person.

15 Mr Dunbar stated that the evaluative processes involved in the University’s selection process would be seriously compromised if fewer prospective referees were willing to provide references/reports, or if referees were less candid. Similarly, the full and frank exchange of information and views in selection committees and the reports prepared by those committees would be comprised. Such impacts would be contrary to the public interest.

16 Dr Michael Fulham. Dr Fulham stated that he holds the honorary positions of Adjunct Professor in the School of Information Technologies (Faculty of Engineering and Information Technologies), appointed in November 2005, and Clinical Professor in the Faculty of Medicine, appointed in August 2006, a conjoint position with his role as an employee of the Sydney South West Area Health Service (‘SSWAHS’) based at the Royal Prince Alfred Hospital (‘the RPA’). Dr Fulham said he was encouraged to apply for his professorial positions by full-time academic staff at the University. His responsibilities in these professorial positions include teaching, research and the supervision of higher degree students. In addition, Dr Fulham is Head of the Department of Positron Emission Tomography (‘PET’) and Nuclear Medicine at the RPA and Clinical Director, Imaging Services, for the SSWAHS.

17 Dr Fulham said he does not want the documents sought by Dr Van der Wall to be released. In Dr Fulham’s view, they are ‘exempt’. He has concerns about the implications of disclosure because of the campaign in which Dr Van der Wall and others are involved in attempting to discredit him and undermine his clinical and research activities. Dr Fulham provided examples of the conduct to which he says he has been subjected, reflecting a long history of animosity by some members of the nuclear medicine profession resulting from his practising PET. He believes Dr Van der Wall will use any information he receives to make further allegations against him that may seriously affect his reputation, current appointments and future career and research opportunities, thereby damaging his reputation and causing him financial hardship.

18 Dr Fulham said the documents sought by Dr Van der Wall contain information concerning his personal and professional affairs that he would not have provided to the University had he thought the information would be released to a third party. He would likely not have wanted to be considered for the conferring of the academic title of Professor if he had known this was one of the expected outcomes. The disclosure of such information “is not in the public interest and would only serve to excite or satisfy the curiosity of the Applicant”. Moreover, the release of information concerning his research activities would have an adverse effect on his capacity to conduct research and commercialise the results of that research. Dr Fulham said he is concerned about the wrong inferences being drawn about the nature of his research, especially if disclosure were to give rise to sensational statements in the press.

19 Submissions. Ms Oakley said the University contends that the two relevant documents, Document 1 comprising 9 pages and Document 2 comprising 19 pages, are exempt pursuant to clauses 9, 7 and 13 of Schedule 1 of the FOI Act.

20 In relation to clause 9, both documents are internal working documents and contain opinions and recommendations within the meaning of clause 9(1)(a). Neither document consists of a policy document or factual or statistical material (clause 9(2)). The documents were prepared in the course of and for the purpose of University decision-making, in particular in the University Senate. In terms of the public interest, Mr Dunbar’s evidence establishes that there is an expectation that information furnished during the selection process will be kept confidential and that this is important for maintaining the integrity of the selection process. The University relies heavily on the opinions of referees and the candid expression of views in the selection process.

21 Dr Van der Wall appears “to be waging a vendetta against Dr Fulham”. While motivation is not usually a relevant issue, this is an unusual situation. Ms Oakley submitted that the Tribunal has no compelling interest to weigh in the balance against the evidence of Mr Dunbar, and contended that disclosure would be contrary to the public interest. She said that partial release of the documents was considered but not thought feasible.

22 In relation to clause 7, the University submits that both documents contain information about the professional affairs of Dr Fulham, thereby falling within clause 7(1)(c). Disclosure of the documents could reasonably be expected to affect Dr Fulham adversely, and also to prejudice the future supply of such referees’ reports to the University: Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111, at 125.

23 In relation to clause 13(b), Mr Dunbar’s evidence establishes that the material provided by referees was given to the University in confidence and that the University’s selection process also relies on the frank expression of opinions. The selection process would be prejudiced if the expectation of confidentiality is not maintained.

24 Ms Oakley referred to the NSW Court of Appeal decision in Howell v Macquarie University [2008] NSWCA 26 (‘Howell’), at paragraph 48, where Campbell J (with whom Spigelman CJ and Bell JA agreed) observed that exemptions should not be construed narrowly.

25 With regard to the Tribunal’s discretion to grant access to the documents notwithstanding that they are exempt documents, Ms Oakley submitted that the Tribunal should come to the same conclusion as the University, that is that disclosure of the documents would be contrary to the public interest.

Dr Van der Wall’s Evidence and Submissions

26 In his written submissions, Dr Van der Wall set out the background to his FOI application, namely the circumstances surrounding Dr Fulham’s appointment to his current positions in the SSWAHS and in the University, and also Dr Van der Wall’s comments on Dr Fulham’s qualifications for those positions. Dr Van der Wall said he has no interest in any personal information concerning Dr Fulham’s family, health, personal finances etc. Dr Van der Wall’s request is in relation to the professional and academic basis for the conferring on Dr Fulham of the title Adjunct Professor in the School of Information Technologies. The appointment process should be “transparent, above board and robust enough to withstand external scrutiny”.

27 Dr Van der Wall said:

“Dr Fulham is a full-time staff specialist in the New South Wales Public Hospital System, so there can be no basis for refusal of this request on the basis of his private business affairs or research activities as any intellectual property belongs to the NSW Department of Health, Dr Fulham’s full-time employer.”
28 Dr Van der Wall is unaware of any campaign against Dr Fulham. However, Dr Van der Wall said his motivation in seeking access to the documents is irrelevant, except where the interest in access is so strong that it could amount to a public interest in disclosure. An important principle of accountability is at stake in this matter. Dr Fulham “is practising in a medical specialty in Australia, involving the important field of cancer and making major decisions that ultimately affect the health, welfare and safety of the public of NSW”.

29 Dr Van der Wall states that Dr Fulham, who is a Neurologist, lacks a formal qualification in Medical Imaging, and is practising in a specialty without formal recognition by one of the specialist accreditation bodies. Dr Van der Wall questions the justification for Dr Fulham’s appointment as an Adjunct Professor in a School of Information Technologies when he has no qualifications in information technology, does not teach in that School and has only one abstract in information technology. In light of the fact that Dr Fulham has no qualification in Medical Imagery, Dr Van der Wall believes Dr Fulham uses the title of Professor to legitimise his position.

30 Dr Van der Wall referred to the decision of the NSW Court of Appeal in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (‘the WorkCover case’), where, at paragraph 147, McColl JA, with whom Handley and Hodgson JJA agreed, said that the FOI Act “operates on the premise that there is a public interest in the public having access to Government information”. Dr Van der Wall said that to comply with this, government agencies must disclose working documents after their significance wanes with time, and they must prove tangible harm would occur if documents were disclosed.

31 With regard to the claimed clause 7 exemption, Dr Van der Wall contended that since Dr Fulham is an employee of the SSWAHS, there is no commercial disadvantage to Dr Fulham from the release of the documents.

32 Dr Van der Wall said that the University’s policy, the ‘Confidentiality of referees’ reports in selection and promotion processes’, states that “[w]hile the University will treat the reference you supply in a confidential manner, you should be aware that the University is subject to the NSW Freedom of Information Act”. Dr Van der Wall submitted that there is a clear expectation that referees’ reports can be obtained pursuant to the FOI Act, and that Mr Dunbar’s evidence in this regard is purely a statement of personal opinion.

Discussion

33 As stated above, there are two documents in issue, comprising a total of 28 pages. The University contends that both documents are exempt from disclosure by reason of the exemptions contained in clauses 7, 9 and 13 of Schedule 1 of the FOI Act, set out above.

34 I have reviewed the two documents in issue, which have been provided to me in confidence by the University. Document 1 comprises nine pages. Page 1 is a four line Memorandum from the Human Resources Coordinator, Colleges of Sciences & Technology, to the Vice-Chancellor, dated 19 October 2005, headed “Report of Titles Committee – Associate Professor Michael Fulham”. Attached to the Memorandum is a two page report of the Committee, signed by the Pro-Vice-Chancellor (Science & Technology), to which is attached three two page referees’ reports on Dr Fulham.

35 Document 2 comprises 19 pages, numbered 10 to 28. Pages 10 and 11 comprise a two page letter from the Head of the School of Information Technologies to the Dean of the Faculty of Science, dated 1 August 2005, nominating Dr Fulham for appointment as an Adjunct Professor in the School. Attached to this letter is Dr Fulham’s 17 page curriculum vitae (pages numbered 12 to 28).

36 Clause 9. The University seeks to rely first, on the clause 9 exemption in respect of internal working documents, specifically in relation to the documents containing “opinion, advice or recommendation” within the meaning of clause 9(1)(a)(i). Clause 9 requires, relevantly, that a distinction should be drawn between documents that contain purely factual matters and those that contain “opinion, advice or recommendation”: Harris v Australian Broadcasting Corporation (1983) 78 FLR 236. Further, for the exemption to apply, there must be a relevant connection between the opinion, advice, or recommendation and the agency’s decision-making functions, and the disclosure must “on balance, be contrary to the public interest”.

37 In the WorkCover case, at paragraph 162, McColl JA said:

“The cl 9(1)(b) public interest issue should, in my view, be determined by reference to the facts of the particular application, not by reliance on theoretical possibilities which flow if disclosed documents thereafter gained wider release.”
38 I note that in Bennett v University of New England [2000] NSWADT 8, at paragraph 63, Deputy President Hennessy said:
“Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest ... In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act .”
39 With regard to Document 1, I am not satisfied that page 1, the four line Memorandum, should attract the internal working documents exemption. It does not, in itself, disclose any opinion, advice or recommendation. Pages 2 and 3 of the Document are the report of the Committee appointed to consider the award of the title Adjunct Professor to Dr Fulham. The report is marked “In confidence”. While the report discloses the recommendation of the Committee that the title ‘Adjunct Professor’ be conferred on Dr Fulham, its content is largely factual, it contains nothing critical of Dr Fulham, and I am not satisfied that there is a persuasive reason for not releasing the report. Indeed, given the apparent controversy over the conferral of the title on Dr Fulham, it would appear to be in the public interest, especially in the transparency of the appointment process, that it should be released. This also accords with the objects of the FOI Act stated in section 5, quoted above, and I am not satisfied that any restriction on access to this document is necessary for the proper administration of government (section 5(2)(b)).

40 Pages 4 to 9 of Document 1 comprise three two page referees’ reports. These contain the authors’ expressions of opinion in support of Dr Fulham. The reports were sought for the purpose of the University’s decision-making functions and, in my view, the disclosure of such referees’ reports would be contrary to the public interest because, given the convention of confidentiality in relation to such reports, it can reasonably be assumed that the reports were provided on the basis that they would be treated as confidential. This is further discussed below in relation to the application of clause 13.

41 With regard to Document 2, the two page letter (at pages 10 and 11) contains the Head of the School of Information Technologies’ nomination of Dr Fulham for appointment as an Adjunct Professor in the School. While this letter contains a statement of opinion as the suitability of Dr Fulham for appointment as an Adjunct Professor, and was prepared for the purpose of the University’s decision-making processes, like the report of the Committee referred to above, it contains nothing critical of Dr Fulham, and I am not satisfied that there is a persuasive reason for not releasing the report, especially given the apparent public interest, and in the light of the objects of the FOI Act, as explained above. The remaining pages of Document 2, pages 12 to 28, comprise Dr Fulham’s curriculum vitae. In my view, the disclosure of these pages would be contrary to the public interest because they contain information provided in confidence, as further discussed below in relation to the application of clause 13.

42 Clause 7. The University also seeks to rely on the clause 7(1)(c) exemption in respect of the disclosure of professional affairs. The University submits the documents contain information about Dr Fulham’s professional affairs, the disclosure of which could reasonably be expected to have an adverse effect on those affairs. Dr Fulham states that the release of information concerning his research activities would have an adverse effect on his capacity to conduct research and commercialise the results of that research. He is concerned about the wrong inferences being drawn about the nature of his research, especially if disclosure were to give rise to sensational statements in the press.

43 In my view, none of the pages of the two documents which I have determined should not attract the clause 9 exemption, namely the pages numbered 1 to 3 and 10 to 11, fall within clause 7(1)(c). The release of those documents is more likely to benefit to Dr Fulham rather than “reasonably be expected to have an unreasonable adverse effect” on his professional affairs.

44 Clause 13. Finally, the University seeks to rely on the clause 13(b) exemption in respect of documents obtained in confidence. In particular, the University relies on Mr Dunbar’s evidence that the referees’ reports were given in confidence, and that confidentiality is fundamental to the effectiveness of the University’s recruitment and selection processes. Mr Dunbar stated that both in the Australian academic community and more widely, there is an accepted convention that confidentiality applies to such processes, and the University adheres strictly to this in its practice. As a result, there is an expectation of confidentiality on the part of both candidates and referees. I am persuaded by this evidence, which appears to accord with the general policy and practice in many areas of recruitment and to be broadly accepted in the community.

45 I am satisfied that the University’s recruitment and selection processes would be compromised if confidentiality did not attach to these processes. Those considering applying for a position or the conferral of an honorary title might be more reluctant to do so if the disclosure of documents might result in the fact of a person having made an application becoming known outside those involved in the selection process. Prospective referees could also reasonably be expected to be less willing to act as referees and, when agreeing to act as referees, to be circumspect in their expressions of opinion – to be less frank and candid – if the confidentiality of their reports could not be assured. This would be contrary to the public interest in appointing the most suitable persons to particular positions.

46 While I have already determined that pages 4 to 9 of Document 1 and pages 12 to 28 of Document 2 are exempt pursuant to clause 9, I am also satisfied that these pages, which comprise referees’ reports and Dr Fulham’s curriculum vitae, attract the exemption in clause 13. These pages of the two documents were supplied in confidence, and the disclosure of this information could reasonably be expected to prejudice the future supply of such information to the University, which would be contrary to the public interest.

47 Similarly, I am satisfied that none of the pages of the two documents which I have determined should not attract the clause 9 exemption, that is the pages numbered 1 to 3 and 10 to 11, fall within clause 13(b). The release of those documents could not reasonably be expected to prejudice the future supply of information to the University, and their release is not contrary to the public interest.

48 The residual discretion. By virtue of sector 63(2) of the Administrative Decisions Tribunal Act 1997 and sector 25(1)(a) of the FOI Act, the Tribunal has a residual discretion to release documents otherwise found to be exempt pursuant to Schedule 1 of the FOI Act, and, in such a case, must consider whether to exercise its discretion to do so: University of NSW v McGuirk [2006] NSWSC 1362, at paragraph 102 (per Nicholas J). The principles guiding the exercise of the discretion were discussed by the President of the Tribunal, O’Connor DCJ, in Cianfrano v Director General, Premier’s Department [2007] NSWADT 216.

49 The question to be considered is whether, bearing in mind the objects of the FOI Act expressed in section 5, stated above, there are strong grounds justifying the overriding of the exemptions found to apply. I am not satisfied that there are such grounds in this case. In particular, I have already considered the public interest in relation to the exemptions in clauses 9 and 13 and made findings in that regard.

Orders

The Tribunal varies the decision under review in respect of the first three pages of Document 1 (numbered 1 to 3) and the first two pages of Document 2 (numbered 10 to 11), which must be released to the Applicant within 28 days after the date of this decision, but otherwise affirms the decision.