Wilmshurst v Vice-Chancellor, Macquarie University

[2003] NSWADT 147

CITATION:	Wilmshurst v Vice-Chancellor, Macquarie University [2003] NSWADT 147
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Peter Wilmshurst RESPONDENT Vice-Chancellor, Macquarie University
FILE NUMBER:	013314
HEARING DATES:	26/11/2002
SUBMISSIONS CLOSED:	11/26/2002
DATE OF DECISION:	06/18/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 196 Esso Australian Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 The Daniels Corporation International Pty Ltd v Australian Competitiation and Consumer Commission [2002] HCA 49 Attorney General of the Northern Territory v Kearney (1985) 158 CLR 599 Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 Young v Wicks (1986) 13 FCR 85 Commissioner of Police v The District Court of NSW ("Perrin's Case") (1993) 31 NSWLR 606 Gilling v General Manager, Hawkesbury City Council (1989) NSWADT 43 A v Director General, Department of Health (2000) NSWADT 59 Colokowski v Australian Telecommunications Corporation (1991) 29 FCR 429 Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSWADT 93 Neary v The Treasurer, New South Wales [2002] NSWADT 261
REPRESENTATION:	APPLICANT In person RESPONDENT S Rares, SC
ORDERS:	The decision under review is affirmed.

1 This is an application brought under the Freedom of Information Act 1989 (“the FOI Act”) for review of a decision by the Vice-Chancellor of Macquarie University. The Tribunal has determined it has jurisdiction to determine this application: Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 196.

Background

2 The history of this matter may be briefly stated. The applicant, Mr Wilmshurst, was a legal academic employed by the respondent, Macquarie University (“the University”). It appears that in the 1990s a conflict arose between Mr Wilmshurst and the University. It is not necessary here to consider the details or merits of that dispute.

3 On 14 June 2001, the University received a letter from Mr Wilmshurst making application for a number of records pursuant to s 17 of the Freedom of Information Act 1989 (“the FOI Act”). The letter attached a copy of a letter from the Vice-Chancellor of the University, Professor Yerbury, dated 15 November 1999, to the Ombudsman’s Office. That letter referred to a number of documents and made various comments. This letter was obtained by Mr Wilmshurst and was the basis of his application. He identified from the letter 24 items concerning records, which he believed existed. They were:

1. Two letters relating (a) to the University's internal reporting policy and FOI statistics and (b) the applicant’s employment at Macquarie University.
2. The summary of facts and the detailed argument on legal principles that was sent to the Ombudman’s Office as an attachment to the letter of 15 November 1999.
3. Attachment 3 to the letter.
4. Attachment 4 to the letter.
5. The “separate document” referring to Mr Wilmshurst’s behaviour and its contexts (although he conceded that this may refer to documents sought under heading 1).
6. Attachment 6 to the letter.
7. Attachment 2 to the letter.
8. Copies of all documents recording statements by members of the School of Law who warned the Vice-Chancellor that Mr Wilmshurst deliberately, in some cases, “involved all members of the University Executive in a ceaseless pattern of grievances, reviews, referrals to external bodies, etc., with the apparent intention of providing a basis for later claims of bias [against him].”
9. Copies of documents recording all examples of such instances, other than those referred to in Attachments 2 and 6.
10. A copy of the document or documents showing the “difficulties” and “objections” made, and you may delete the name of the person on question.
11. A copy of the “additional comments” provided by the FOI officer.
12. A copy of any document relating to the deliberate conduct by me or forming the basis for the Vice –Chancellor’s belief.
13. Copies of the additional statements in response to the tenth question asked by the Ombudsman’s Office in its letter received by the University on 7 October 1999.
14. A copy of any allegations, referred to by the Vice-Chancellor in section 8 of her letter to the Ombudsman’s Office, said to have been made by Mr Wilmshurst to University Council members about another staff member.
15. A copy of a management audit referred to by the Vice-Chancellor in the same section of her letter to the Ombudsman.
16. A copy of the objection to the release of material concerning the matter raised in paragraph 14 by the person against whom it is said allegations were made by Mr Wilmshurst, with the name of the person objecting deleted.
17. Attachment 7 of the letter to the Ombudsman’s Office.
18. A copy of any document substantiating the claims made by the Vice-Chancellor that “there is some anecdotal evidence (impossible to quantify) that, since the advent of [FOI], there has been some adverse effect on human resource management within universities (and on some other areas of administration) resulting from a reluctance on the part of some people to co-operate in providing information that concerns personal affairs.”
19. A copy of any document substantiating the Vice-Chancellor’s assertion to the Ombudsman’s Office that “[FOI], although fully supported by the University, has caused some “disquiet” in the areas of [“personal affairs” and industrial relations within the University]”.
20. In section 9 of her reply to the Ombudsman’s Office, the Vice-Chancellor referred to “threats” made by Mr Wilmshurst that he would make certain disclosures to the Press. She also referred to this being the “impressions” of some members of the Law School staff. The applicant sought copies of any document recording such “impressions” and of a report that was subsequently made to the Vice-Chancellor.
21. A copy of the “further comments” made the University’s internal review policy, unless already covered by item 1.
22. Attachment 7.
23. The statistics on FOI applications processed since 1997 referred to in section 11 of the Vice-Chancellor’s letter to the Ombudsman’s Office.
24. Attachment 10 to that letter.

4 When the application was processed by the University, it identified 15 documents that appeared to fall within the scope of the request. On 15 February 2002, following an internal review of the original decision by the University, nine of these were released in whole or in part. In respect of six documents, the University claims an exemption on the basis that the documents concern either “personal affairs” or attract legal professional privilege.

5 At hearing, Mr Wilmshurst advised that the scope of documents outstanding had been narrowed and that now only four documents were requested. They are:

“Memo to Judith Russell, Freedom of Information Officer” 16 Oct 1998 (Item 6);

“Memo to Judith Russell, Freedom of Information Officer” 23 Oct 1998 (Item 7);

“Attachment 7: History of Events relating to Second Application, … Grievance about Teaching Allocations” (undated) (Item 9);

“Attachment 10: Correspondence with Mr Joe Campbell QC, Legal advice of legal privilege” (undated) (Item 10);

6 Exemption is claimed in full, pursuant to Schedule 1, clause 6 (“Personal affairs”) in respect of Items 6, 7 and 9. A claim of legal professional privilege, pursuant to Schedule 1, clause 10 is made in respect of Item 10. (The parties in submissions describe the documents differently. For convenience in these reasons the item numbers used by the University will be employed.)

7 Mr Wilmshurst sought a review of the University’s decision in this Tribunal on various bases. His first ground is that there has been an inappropriate claim and use of legal professional privilege, pursuant to clause 10. The second ground is that documents said by the University to be caught by the “personal affairs” exemption ought be released to him on the basis of arguments that will be dealt with below. Finally, he contends that the circumstances surrounding the documents justify the exercise of the Tribunal’s discretion under s 25(1) of the FOI Act. Section 61 of the FOI Act places the onus of proving its decision to refuse access to the documents requested by Mr Wilmshurst on the University.

Legal professional privilege

8 Clause 10 of Schedule 1 of the FOI Act provides:

A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

9 The University submits that Item 10 consists of confidential communications between the University and Senior Counsel. They were made for the dominant purpose of giving and receiving legal advice and they are protected by legal professional privilege. (See Esso Australian Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 and The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49).

10 Mr Wilmshurst argues that the University cannot rely on legal professional privilege because it, or members of it, may have waived the privilege and, secondly, may have engaged in deliberate abuse of a statutory power and, thirdly, may have committed the common law misdemeanour of misbehaving in a public office.

11 Mr Wilmshurst claims that a letter dated 24 October 2001 from an officer of the Ombudsman confirmed an earlier telephone conversation in which the Ombudsman’s Office told Mr Wilmshurst that the University had decided simply not to comply with the FOI Act in respect of any FOI application by him. He argues that this is evidence that a common law misdemeanour had been committed by an officer of the University and that therefore the privilege exemption cannot be relied upon by the University. He contends that the circumstances surrounding the request for that legal advice supports a finding that it was sought for the improper purpose of avoiding answering a previous FOI application made by him.

12 Mr Wilmshurst is of course correct that the privilege attaching to confidential communications between legal representatives and their clients is not absolute. It cannot be invoked for example where the document for which privilege is claimed was created for some illegal or improper purpose. The principles that apply to the limitation on the scope of privilege are summarised in Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 231 at [25]-[28].

13 Mr Wilmshurst clearly holds an honest belief that officers of the University have abused their positions in respect of him. However, from an objective point of view, there is sparse evidence of this. His allegations are very serious. He alleges criminal, or at best improper, conduct by officers of the University. Before I could accept the argument that privilege had been waived on that basis I would need some evidence of such conduct or “something to give colour to the charge”(see Attorney General of the Northern Territory v Kearney (1985) 158 CLR 599 at p 516.) However I am not satisfied that the evidence before me supports such a finding.

14 Without proof of waiver, where there is a basis for a claim of legal professional privilege, it would only be in very unusual circumstances that a finding would be made that it should be set aside. This is not such a case. I am satisfied that the claim for exemption would be made out in respect of Item 10 but for the issue of waiver.

15 Legal professional privilege can be waived if a client discloses the content of advice given by a lawyer. The question arises here whether the University, by disclosing the advice given to it by Mr Joe Campbell QC, has waived privilege in respect of Item 10. A copy of the advice was attached to the Vice-Chancellor’s letter to the Ombudsman on 15 November 1999. The University, in its submissions to this Tribunal, omitted any argument concerning waiver.

16 Mr Wilmshurst, concentrated in his submissions on the questions of illegality and loss of privilege. He did not address the question except in a very general way, yet it is so clearly the real issue that the University’s silence on the topic is surprising

17 I have considered calling for further submissions from the parties but it seems to me that the issue is so clear-cut that there can be no denial of natural justice in dealing with it directly.

18 There is no doubt that the Vice-Chancellor intentionally disclosed the advice to the Ombudsman’s Office. This was not inadvertent. If the matter were being dealt with in legal proceedings in court, and for some reason the document was germane to the proceedings, one might expect that it would be called for or subpoenaed and that a claim of privilege would then be argued. The same test applies here.

19 In my opinion, the claim for privilege would succeed. Section 122(2) of the Evidence Act 1995 provides that evidence may be led of an opponent’s legal advice if the advice has been voluntarily disclosed other than in the course of making a confidential communication or in a number of other circumstances which are not relevant to this case. The Vice-Chancellor disclosed the advice on a confidential basis expecting that the Ombudsman’s Office would maintain the confidence and would not disclose this advice.

20 In my opinion, this ground of exemption is made out.

“Personal Affairs” exemption

21 The remaining documents for which an exemption is claimed fall within this category.

22 Clause 6(1) of Schedule 1 of the Act provides:

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)

23 For a document to be exempt under Clause 6(1), two conditions must be satisfied. First, the document must contain information concerning the personal affairs of any person. Secondly, the disclosure of the information must be unreasonable.

24 The term “personal affairs” cannot be precisely or exhaustively defined. In some cases it has been given its ordinary dictionary meaning of “matters of private concern to an individual”, (see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 Beaumont J at 221 -222; Young v Wicks (1986) 13 FCR 85 per Beaumont J at 89).

25 In The Commissioner of Police v The District Court of NSW (“Perrin’s Case”) (1993) 31 NSWLR 606, Kirby P held that, “In its context, the words ‘personal affairs’ mean the composite collection of activities personal to the individual concerned”. Hennessy, DP adopted this definition in considering the meaning of the phrase in Gilling v General Manager, Hawkesbury City Council (1989) NSWADT 43 and in A v Director General, Department of Health (2000) NSWADT 59.

26 In Perrin’s Case, Kirby P regarded the purpose for which information is provided as decisive in determining whether that information concerns a person's personal affairs. The case is authority for the proposition that information provided by a person in the capacity of a private individual will be information concerning the personal affairs of that person, and information provided by a person in the course of the performance of a public duty or responsibility will not be information concerning the personal affairs of that person.

27 Relevant considerations to the question of unreasonableness include the views of the third party, whether disclosure would serve the public interest purposes of the legislation and the applicant’s motivation in seeking the information. If disclosure would merely satisfy the applicant's curiosity, then disclosure may be considered to be unreasonable, (see Colokowski v Australian Telecommunications Corporation (1991) 29 FCR 429.

28 Items 6 and 7: Both items are memoranda to Judith Russell, the University’s FOI officer. Each was created by a third party whose personal affairs the University identified as being contained in documents the subject of an earlier FOI request. As required under s 31(2) of the FOI Act the University sought the views of the third party on whether each documents is exempt by virtue of clause 6 of Schedule 1 of the FOI Act. Each memoranda contained the views of the relevant individual/s as to whether the requested documents should be released. Release was opposed.

29 Having had the opportunity to examine the documents, it is clear that Items 6 and 7 largely concern the personal affairs of the author of the documents, who was then in dispute with the University.

30 Having made this finding I must now determine whether in the circumstances disclosure would be unreasonable. I accept the submissions of the respondent that the public interest would not be served by releasing as matter of course documents created for the purpose of responding to an agency’s request made under s 31(2). The FOI Act requires agencies to consult with individuals whose personal affairs may be disclosed if a document is released. The public interest in my view would not be served if documents generated by the individuals concerned as part of that consultation process were to be released. It is self evident that if as a matter of course such documents were to be released the consultation provisions mandated by s 31 of the FOI Act would be frustrated.

31 Against these considerations must be balanced those factors that favour disclosure. One of the objects of the FOI Act is to extend, as far as possible, the right of individuals to obtain access to information held by Government: s 5(1)(a). The evidence is somewhat unclear as to precisely why Mr Wilmshurst seeks access to these documents. I understand him to argue among other things, that release of these documents is important to ensure the public accountability of the University and the transparency of its decision-making processes, which he asserts may have been compromised in various dealings with him over the years. The public interest demands that important public institutions such as Universities operate in an open and transparent manner. However, I am satisfied that in the circumstances of this case the release of information concerning the personal affairs of third parties as contained in Items 6 and 7 would be unreasonable in respect of each document.

32 Accordingly, I am satisfied that Items 6 and 7 are exempt pursuant to clause 6(1) of schedule 1 of the Act.

33 Item 9: History of Events relating to Second Application, … Grievance about Teaching Allocations” (undated) This document contains a report of events in relation to a FOI application. It includes an account of an investigation by the Deputy Vice Chancellor into a complaint about a staff member’s teaching allocation in the School of Law.

34 The staff member concerned was occupying a public position, namely that of a member of the teaching staff of the University Law School. However, I am satisfied that the documents concern their personal affairs as being connected only with their work performance; relations with other members of staff, and certain grievances they had towards other staff members and those of other staff towards them. This subject matter cannot be seriously categorised as anything other than “personal affairs”.

35 Having carefully examined the documents, I am not persuaded by Mr Wilmshurst’s submission that disclosure would not be unreasonable. Item 9 details an investigation into a complaint about teaching allocations and contains the views of relevant stakeholders apparently relayed in confidence to the Deputy Vice Chancellor. Persons have a general right to expect that their privacy will be protected by their employers when they provide personal information or write to their employers concerning their own personal affairs. It would undoubtedly have a chilling effect on communications between staff and the executives of the University if it were believed that private communications concerning personal affairs were released to anyone who chose to make an FOI application for such documents. There is a significant public interest in maintaining reasonable, but not absolute, standards of privacy for records concerning personal affairs within public organisations.

36 Taking into account all the circumstances I am satisfied that release of the documents would be unreasonable.

Section 25 (1)

37 Section 25(1) of the FOI provides that an agency may refuse access to an exempt document. A discretion resides in an agency to release an exempt document.

38 Both parties agree that s 25(1) gives the Tribunal discretion to release an exempt document. Mr Wilmshurst argues that the University should exercise that discretion in his favour in respect of all documents the subject of this application for a number of reasons, which include: his status as a member of the Body Corporate of the University, the Tribunal’s purported jurisdiction as a University Visitor, political discrimination on the part of the University towards him, the presumption in favour of disclosure enshrined in the FOI Act. These submissions mirror those made by Mr Wilmshurst in an earlier FOI application and are detailed in Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 231 at [44]-[60]. It is contended for the University that the circumstances of this application do not warrant disclosure.

39 As noted submissions in this matter proceeded on the basis that the Tribunal had power to review the decision of an agency to refuse access to an exempt document where special or exceptional circumstances can be identified. This has been the approach adopted in a long line of cases following Mangoplah Pastoral Co Pty Ltd v Great Southern Energy [1999] NSW ADT 93 including Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT 231. Following the close of submissions in this matter, President O’Connor DCJ in Neary v The Treasurer, New South Wales [2002] NSWADT 261 at [67] departed from the Mangoplah line of authority and held such discretion did not exist.

40 It is not necessary for me to consider in these reasons which of the competing approaches to s 25(1) is correct as I am not satisfied that special or exceptional circumstances have been made out which may warrant an exercise of the so called “override discretion” to the extent such discretion can be said to exist. In reaching that conclusion I adopt the reasons given in Wilmshurst v Vice Chancellor Macquarie University [2002] NSWADT [40]-[62].

Sections 25(4)

41 Section 25(4) provides that the agency must provide access to an exempt document if the exempt material can be deleted from the record to which access is provided and it appears to the agency that the applicant would wish access to such an amended record.

42 I have examined each of the documents and find that it would not be practicable to give access to a copy of the document from which the exempt matter has been deleted nor would Mr Wilmshurst wish to be given access to such an expunged copy.

Orders

43 I affirm the University decision under review.