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[2006] FCA 1234
procedural. Set aside the decision under review and remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 28 days of publication.
Dr Battin wanted documents explaining why ethics approval for his workplace-bullying survey was withdrawn after complaints. The University refused most of them, citing legal privilege and confidentiality. The Tribunal ruled that legal privilege covered only four later documents because the University gave no evidence that earlier emails were mainly for getting legal advice. Complaints about harm or research prejudice were not proven. Names and details that could identify complainants could stay secret, but the rest of the documents should be released after those details were removed. The University's refusal was set aside and it was told to decide again within 28 days using these principles.
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2,250 words · generated 24/04/2026
Dr Tim Battin, an academic at the University of New England, together with other researchers obtained approval from the University's Human Research Ethics Committee (HERC) for an internet survey entitled "Perceptions of Bullying in the Workplace". Following complaints about that survey the HERC revoked its approval. Dr Battin then made an application under the Government Information (Public Access) Act 2009 (GIPA Act) on 23 May 2011 seeking access to information relating to those complaints.
The Agency identified 44 responsive documents. It granted access to six, refused access to 13 on the basis that they were subject to legal professional privilege (giving rise to a conclusive presumption under cl 5 of Sch 1), and refused access to the remainder on the basis that, on balance, public interest considerations against disclosure outweighed those in favour. An internal review affirmed that position. The Information Commissioner reviewed the decision and made recommendations on 14 May 2012. Dr Battin then sought external review by the Administrative Decisions Tribunal on 6 June 2012.
The Tribunal, constituted by Judicial Member P H. Molony, determined the matter on the papers pursuant to the parties' agreement and s 76 of the Administrative Decisions Tribunal Act 1997. It had before it the internal review decision, the Information Commissioner's recommendation, the parties' written submissions, and the 44 documents supplied on a confidential basis. No witness statements were filed. The Tribunal examined the documents itself and, at [38]-[40], distinguished between those created before and those created after the HERC revocation decision. It found that legal professional privilege was established only for the four post-revocation documents. For the balance it identified public interest considerations in favour of disclosure at [43] (open discussion of HERC decision-making on a matter of public importance) and accepted that two considerations against disclosure (cll 1(f) and 3(a) of the Table to s 14) applied to identifying information about complainants. The Agency had not established the other claimed considerations against disclosure because it adduced insufficient evidence.
At [75]-[77] the Tribunal concluded that the public interest against disclosure of identifying information outweighed the factors in favour, but that such information could be deleted under s 74 without rendering the documents nonsensical. The correct and preferable decision was therefore to set aside the Agency's refusal and remit the matter for reconsideration in accordance with those reasons, to be completed within 28 days.
The Tribunal's reasoning is grounded in the text and structure of the GIPA Act as explained at [9]-[31]. It began from the presumption in favour of disclosure (s 5) and the enforceable right to access unless an overriding public interest against disclosure is established (s 9 and s 13). It emphasised at [22] that the Act must be interpreted to further its objects and that discretions are to be exercised to facilitate access at lowest reasonable cost.
On legal professional privilege the Tribunal applied cl 5 of Sch 1, which incorporates the Evidence Act 1995 (NSW) s 118 dominant purpose test. At [35] it cited FCT v Pratt Holdings and AWB v Cole for the proposition that the dominant purpose must predominate over all other purposes. At [38]-[39] it noted that the pre-revocation documents did not on their face demonstrate that dominant purpose, that a legal officer had been involved but that in-house lawyers perform mixed functions, and that Seven Network Limited v News Limited and Waterford v Commonwealth require demonstration of independence and dominant purpose. Because the Agency filed no evidence on these matters the claim failed for those nine documents. The post-revocation documents were "obvious" on their face and privilege was upheld, triggering the conclusive presumption.
For the remaining documents the Tribunal identified at [42]-[43] non-exhaustive public interest considerations in favour drawn from s 12(2), including promotion of open discussion of HERC processes concerning revocation of approval for research into workplace bullying at the University itself. It then turned to the exhaustive list of considerations against disclosure in the Table to s 14. At [47]-[49] it adopted the ordinary-meaning interpretation of "could reasonably be expected to" from Attorney-General's Department v Cockcroft and McKinnon v Secretary, Department of Treasury, requiring only that the expectation be reasonable rather than irrational.
The Agency relied on four Table clauses. The Tribunal accepted at [57]-[58] that cl 1(f) (breach of confidence) and cl 3(a) (personal information) applied to identifying information once it examined the documents and the University's Code of Conduct. It drew on Commissioner of Police v Camilleri at [53] to examine the conditions under which the Agency received the complaints and concluded that confidentiality attached to identifying rather than substantive information. The risk-of-harm consideration (cl 3(f)) was not made out because only some complainants had expressed concern and the Agency led no evidence of likely retribution or its seriousness. The research-integrity clause (cl 4(e)) was held inapplicable at [69]-[70] because what was protected was the HERC process, not the research itself.
At [71]-[75] the Tribunal weighed the competing considerations, noting that the two accepted factors against disclosure carried "significant weight" for identifying information but that, after redaction under s 74, release of the balance would advance the Act's objects. The original decision was therefore not the "correct and preferable" decision on the material before the Tribunal (Drake v Minister for Immigration). The disposition followed directly from the review powers in s 63 of the ADT Act and s 100 of the GIPA Act.
Prior to the GIPA Act the Freedom of Information Act 1989 (NSW) governed access to agency documents. That statute contained exemption categories rather than a presumption of disclosure and a structured public interest test. The GIPA Act, which commenced on 1 July 2010 (noted at [9]), replaced that regime with an objects clause (s 3) that expressly favours proactive release and an enforceable right of access. Section 5 creates a presumption in favour of disclosure; s 12(2) provides that public interest factors in favour are not limited; and s 14 confines factors against disclosure to the Table. Schedule 1 creates conclusive presumptions, including for legal professional privilege.
The Tribunal's analysis at [10]-[15] and [32]-[33] shows how the new statute applies to public authorities such as the University (established under the University of New England Act 1993). The decision illustrates the shift from categorical exemptions to a balancing exercise conducted "on balance" (s 13) with regard to the principles in s 16, including that embarrassment to government is irrelevant. The treatment of in-house counsel privilege at [39] builds on Waterford v Commonwealth but applies it in the specific GIPA context where the Agency must justify its claim under s 105(1).
After this decision the law is clarified in three respects. First, agencies cannot assume that involvement of an in-house lawyer automatically engages privilege; evidence of dominant purpose and independence is required. Secondly, when complaints are received by ethics committees the default position is that confidentiality protects identity rather than substance, and redaction under s 74 is a practical tool to reconcile the competing interests. Thirdly, the research-integrity clause in the Table cannot be stretched to cover the processes of an ethics committee. These propositions now form part of the jurisprudence applied by the Tribunal and its successors when reviewing GIPA decisions involving academic freedom, research ethics and complainant confidentiality.
Paragraph [13] quotes the statutory test: "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure." In plain English this means disclosure is the default; secrecy is allowed only when the listed "against" factors outweigh all the "for" factors, with no mathematical formula (see also Hurst v Wagga Wagga City Council cited at [74]).
At [37] the Tribunal states: "It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of the GIPA Act reviews that is consistent with the burden placed on the Agency by s 105(1)." Translation: the University had to prove that getting legal advice was the main reason each document was created. Because it filed no statements or affidavits it lost on the pre-revocation bundle.
Paragraph [53] adopts the Appeal Panel's words from Camilleri: the question of confidentiality "must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received." Plain English: look at how the University actually handles complaints, not at vague assertions. The Tribunal read the Code of Conduct and concluded confidentiality protected names, not the complaints' content.
At [77] the Tribunal concludes: "In my view identifying information relating to complainants could be readily deleted from those documents, without rendering them nonsensical. The release of the balance of the documents would clearly be in the public interest and in accordance with the principles underlying the GIPA Act." Translation: it is easy to black out names, phone numbers and other identifiers; once that is done the rest of the documents should be given to Dr Battin because transparency about how a public university handles ethics complaints matters more than keeping the substance secret.
This decision is triggered whenever an access applicant seeks documents held by a NSW public authority (including universities) that record complaints made to an ethics or similar oversight body, the authority claims legal professional privilege over some of them, and it also relies on public interest considerations against disclosure that turn on confidentiality or personal information.
The critical factual ingredients are: (1) involvement of in-house counsel in pre-decision communications where the dominant purpose is not clearly legal advice; (2) absence of evidence from the agency on purpose or independence; (3) complaints whose confidentiality is asserted but not proven by reference to the agency's own codes or practices; (4) a human research ethics committee or analogous body whose processes are distinct from the research project itself; and (5) the practical feasibility of redacting identifying information under s 74. The decision is not engaged where the agency places sworn evidence before the Tribunal that clearly establishes dominant purpose or a real risk of serious harassment, or where the documents concern the actual conduct or results of research rather than the ethics approval process.
The Tribunal's careful separation of pre- and post-revocation documents and its insistence on evidence of dominant purpose has been influential in subsequent GIPA reviews involving in-house counsel. The emphasis at [39] on Seven Network and Waterford v Commonwealth continues to be cited for the proposition that an in-house lawyer's mixed functions require the agency to prove the legal-advice purpose predominates. The adoption at [53] of the Camilleri approach to confidentiality "by reference to the agency's evidence as to the conditions under which it conducts the service" has been followed in later decisions concerning complaint-handling bodies; agencies now routinely file evidence about their codes of conduct rather than relying on assertion.
The redaction analysis at [76]-[77] grounded in s 74 has been treated as orthodox. Later decisions have similarly ordered release of redacted versions of ethics-committee files where the substance can be separated from identifiers without losing meaning. The rejection at [69]-[70] of the research-integrity clause (cl 4(e)) for ethics processes has narrowed the circumstances in which that consideration can be invoked; it is not available simply because research ethics are involved. The weighing exercise at [74]-[75], citing Hurst v Wagga Wagga City Council, is routinely applied as the correct "question of fact and degree" rather than a mathematical calculation. Overall the decision has been followed on the allocation of onus under s 105(1) and on the limited nature of the Table considerations.
Several questions remain unresolved on the face of the reasons. First, precisely what evidence will suffice to establish dominant purpose for pre-decision communications involving in-house lawyers? The Tribunal noted at [38] that a mere reference to legal advice in one document was insufficient, but did not prescribe the minimum content of an affidavit or the degree of independence required. Agencies are left to infer that contemporaneous file notes or detailed descriptions of the lawyer's role will be necessary.
Secondly, how far can personal factors of the applicant under s 55 be taken into account when the applicant is himself a researcher whose work was the subject of the complaints? The Tribunal recorded at [65] that Dr Battin was associated with the NTEU but did not ultimately rely on motive; the limits of s 55(3) in such "applicant-as-subject" cases remain open.
Thirdly, what level of detail in an agency's code of conduct or complaint-handling policy is required before the Tribunal will accept that confidentiality attaches only to identifiers? The present reasons turn on the specific wording of the University's Code, leaving scope for argument in agencies with differently worded policies.
Finally, the precise weight to be given to the public interest in transparency about revocation of ethics approval for research into bullying within the same institution is not quantified. While the Tribunal found it "real and not insignificant" at [74], future cases involving more serious safety risks or commercial-in-confidence research may produce different balancing outcomes. These questions will require further decisions that build on, but are not answered by, the present reasons.
Introduction 1Tim Battin has made an application to the Tribunal to review a decision made by University of New England (the Agency) under the Government Information (Public Access) Act 2009 (the GIPA Act) dated 23 May 2011. 2Dr Battin sought access to information relating to complaints about an Internet survey "Perceptions of Bullying in the Workplace" that he and a number of other researchers had obtained research approval for from the Agency's Human Research Ethics Committee (HERC). That approval was revoked following the complaints. 3The Agency identified 44 documents as responsive to the request. Of those Dr Battin was:
Material before the Tribunal 6In making this determination the Tribunal has considered the following material:
The Government Information (Public Access) Act 2009 9The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 10'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. It includes "(c) a public authority." Public authority is in turn is defined in Clause 2 of Schedule 4 to mean, among other things, "a body (whether incorporated or unincorporated) established or continued for a public purpose by or under the provisions of a legislative instrument". The Agency is such a body being established by the University of New England Act 1993. It is therefore an agency to which the GIPA Act applies. 11The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the 'overriding secrecy laws' that are set out in Schedule 1 (s 11). Schedule 1 sets out information concerning which it is conclusively presumed that there is an overriding public interest against disclosure (s 14(1)). 12With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct 13There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 15The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has not issued any such guidelines. 16The public interest considerations against disclosure relied on by the agency in this case are to be found under the categories of "Responsible and effective government", "Individual rights, judicial processes and natural justice" and "Business interests of agencies and other persons in the Table to s 14. They are - 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): ... (f) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,, ... 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, ... (f) expose a person to a risk of harm or of serious harassment or serious intimidation, ... 4. Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: ... (e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). ... 17Personal information is defined in clause 4 of Schedule 4 - (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 18Reveal' is defined in Clause 1 of Schedule 4 - reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 19Before deciding an access application which, among other things, seeks access to information that includes personal information about a person, s 54 requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. Any objection to disclosure must be taken into account in the course of determining whether there is an overriding public interest against disclosure of government information: s 54(5). 20Section 55 provides that personal factors relating to an applicant can be taken into account in deciding to grant access. In limited circumstances they may also be taken into account in refusing access. That section provides - (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 21An access application is to be determined in accordance with s 58 - (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 22In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 23Section 73 requires that access be unconditional. Section 78 is concerned with the form of access. 24Section 80 sets out a series of decisions that are reviewable decisions under the Act. It provides - The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object). 25Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88). 26Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93). 27Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application." 28Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98). 29In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides - (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 30The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 31Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - (1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. ...
LEGAL PROFESSIONAL PRIVILEGE 32Clause 5 of Schedule 1 provides - 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 33In the present case the privilege is claimed with respect to nine documents. Those nine can be divided into two bundles for the purpose of consideration. First documents 1,2, 3, 4, 7, 10, 11,12 and 15 which relate to events that occurred before the HERC decided to revoke research approval, and, secondly, documents 40, 42, 43, and 44 which that occurred after that event. 34As there is no suggestion that there was any litigation in progress or prospect with respect to the research survey the Agency's privilege claim must be based on legal advice privilege, rather than litigation privilege. Section 118 of the Evidence Act 1995 provides: 'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.' 35A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44]. 36Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides: (1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) ... confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer means: (a) an Australian lawyer, and (b) an Australian-registered foreign lawyer, and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). ... 37It is incumbent on the person asserting the privilege to demonstrate that the dominant purpose for the communication in issue was the provision of legal advice. In the case of the GIPA Act reviews that is consistent with the burden placed on the Agency by s 105(1). 38In some cases it will be obvious from an examination the written communication itself that the dominant purpose of the communication was the provision of legal advice. That is the case with the documents created after HERC revoked the research approval (documents 40, 42, 43, and 44). It is not however the case with the documents created before the revocation, where the precise nature of the communications, and of any advice sought, is unclear. 39A factor common to all of the documents created before HERC revoked approval, is that a legal officer in the employ of the Agency was either the recipient (or one of them) or the creator of them. The fact that an in house legal officer is a party to a communication does not automatically mean that communication relates to the provision of legal advice. In house legal officers can perform a variety of functions, be they administrative, commercial or legal, and can express view with respect to each of those matters. It is incumbent on an agency asserting that a legal officer has given legal advice to demonstrate that dominant purpose of the communication was the provision of legal advice, and that the legal officer concerned had an appropriate degree of independence: see Seven Network Limited v News Limited [2005] FCA 142 at [4], per Tamberlin J, and Waterford v Commonwealth [1987] HCA 25. 40The documents created before the revocation of the research approval by HERC (documents 1, 2, 3, 4, 7, 10, 11 ,12 and 15) do not obviously relate to the provisions of legal advice. The Agency has not adduced any evidence concerning the dominant purpose for which the communications were created. While there is a reference to legal advice having been sought in one of those documents, there is no indication of what advice was sought and no evidence that the provision of legal advice was the dominant purpose of the communications. The Agency has not put on any evidence that would justify that conclusion. As a consequence its claim for legal advice privilege with respect to documents 1, 2, 3, 4, 7, 10, 11,12 and 15 fails.
Public interest consideration in favour of disclosure 41With respect to the remaining documents, the Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in those documents in accordance with the Act, paying due regard to the principles in s 16. This requires that the public interest consideration both in favour and against disclosure be identified, so that the question of whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies (s 5). 42Public interest considerations in favour of disclosure are set out in section 12. The section makes it clear that those considerations are not limited. 43In my view the following public interest considerations in favour of disclosure apply when considering documents 4 and 5 -
Public interest considerations against disclosure 44The public interest considerations against disclosure are limited to those set out in the Table to s 14. Because the agency bears the onus of justifying its decision to refuse Dr Battin access to information, it has the burden of establishing that each of the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure. 45In submissions the agency identified four public interests considerations against disclosure upon which it relied. They are that disclosure of the information could reasonably be expected to have one or more of the following effects:
Could reasonably be expected 47Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 48Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act. See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2. 49It is necessary for the Agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.
Disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence 50This is found at point 1(f) of the Table to s 14. 51In submissions the Agency noted that a number of complainants had indicated that they wished to have their complaints treated in confidence. It argued that release of all the remaining information would disclose documents provided to the Agency in confidence. 52On my reading of the information it appears that one complainant has asked that his complaints be treated confidentially on a number of occasions. Other complainants have not. Not all the remaining documents are complaints. Only parts of documents 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26, 29, 30, 31, 33, 34, 35 and 36 contain complaints, or information relating to them. 53In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 the Appeal Panel said with respect to confidential information that at [33] - In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received 54The Agency has referred me to its Code of Conduct for Research which sets out principles and requirements applicable to research conducted by students and staff, defines research misconduct, and provides procedures for dealing with complaints in research matters. This document does not specifically deal with HERC, or make provision as to complaints to HERC. Interestingly it does provide that persons who are the subject of a complaint leading to a research misconduct inquiry should be informed of the complaint (5.2.2) which is to be completed with "such confidentiality as the circumstances of the complaint permit." I note that the Agency's general Code of Conduct contains a number of provisions aimed at ensuring the confidentiality of personal and confidential information. 55The Agency noted that the survey in issue advised that complaints "about the manner in which this research is conducted" should be referred to the Research Ethic's Officer. It submitted that this suggested that complaints would be confidential from the researchers. 56The Agency has not filed any other evidence going to the issue of confidentiality. This is unfortunate. 57Having read the documents concerning which confidentiality is claimed and the various codes of conduct, I have come to the conclusion that the confidentiality which the Agency accords to complaints relates to identifying information relating to the complainants, rather than the substance of the complaints. 58I accept that there is a public interest consideration against disclosure of identifying information relating to complainants. By identifying information I refer not only to directory information (name, address, phone number, age and birthdates) but to information that would allow the identity of the complainant to be reasonably ascertained. 59I also note that disclosure of the documents over which the Agency claims legal professional privilege alone would result in the disclosure of identifying information relating to complainants.
Disclosure of the information could reasonably be expected to reveal an individual's personal information 60Personal information is defined in clause 4 of Schedule 4 of the GIPA Act - (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 61The agency submits that documents remaining (excluding those it claimed where subject to legal professional privilege or has released) all contain personal information relating to complainants. I accept that is the case with respect to documents 6, 7, 8, 9, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26, 29, 30, 31, 33, 34, 35 and 36. 62I also note that disclosure of the documents over which the Agency claim legal professional privilege alone would result in the disclosure of personal information relating to complainants.
Disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation 63Once again the Agency claims that this public interest consideration against disclosure applies to all the information (excluding that it claimed was subject to legal professional privilege or has released). 64In submissions the Agency wrote - Again, as evidence by the Documents, many of the complainants expressed their concern that a disclosure of their complaint could result in retribution of the NTEU. Accordingly there is a public interest consideration against disclosing the identity f the complainant ... 65I do note the internal review determined that Dr Battin was associated with the union (NTEU). 66Having read the documents I do not accept that many of the complainants have expressed concern about retribution: only a number have. 67Once again the Agency has not put on any evidence in support of this claim that would enable me to form a view as to the likelihood of such retribution, and whether it would constitute a risk of harm or of serious harassment or serious intimidation. In the absence of such evidence I am not satisfied that this public interest consideration against disclosure is made out.
Disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 68The Agency claims that this public interest consideration against disclosure applies to all documents remaining (excluding those it claimed where subject to legal professional privilege or has released). It made a series of submissions going to the need to ensure the integrity and effectiveness of the HERC's processes by ensuring the confidentiality of complainants. 69Irrespective of the correctness or otherwise of that submission, this public interest consideration against disclosure is specifically concerned with protecting the conduct, effectiveness and integrity of any research by revealing its purpose, conduct or results. Here it is not the research that the Agency is seeking to invoke the public interest consideration against disclosure in aid of, but the processes of a separate ethic committee. What is sought to be protected are the process and conduct of that committee, not the research. 70In my opinion this public interest consideration against disclosure has no application in these circumstances.
Balancing the public interests 71I found that legal professional privilege attached to documents 40 to 44 and as a result there is a conclusive presumption that their release is not in the public interest. 72I have found the following public interests considerations against disclosure apply to a large number documents (including some originally claimed to be privileged):
Conclusion 78I summary it is my view that the correct and preferable decision in this case is to: Set aside the decision under review Remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 28 days of their publication.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2013
Battin
University of New England
(1986) 10 FCR 180
(1979) 46 FLR 409
(2004) 136 FCR 357
[2006] HCA 45
Set aside the decision under review and remit it to the Agency for reconsideration in accordance with these reasons, such reconsideration to be completed within 28 days of publication.