Victorian Civil and Administrative Tribunal|2005-11-16

Conyers v Monash University (General) [2005] VCAT 2509 (16 November 2005)

Freedom of Information - Exempt documents - Public interest override - documents relating to investigation by university of conduct and performance of applicant and termination by university of sponsorship of applicant's academic fellowship - Freedom of Information Act 1982 - ss 30(1), 32, 33(1), 35(1)(b), 50(4).

1 The decision under review is set aside in respect of disputed document 90 but is otherwise affirmed.

2 Liberty to apply.

1 Dr Gary Conyers seeks access under the Freedom of Information Act 1982 ("the Act") to a number of documents relating to the period he spent at Monash University's Department of Biochemistry and Molecular Biology ("the department") from late 2002 until late March 2004. The University refused him access to the documents on 15 February 2005 and his application for review of that decision was filed with the Tribunal on 15 April 2005.

2 Dr Conyers came to the University from the United States in May 2002 as a postdoctoral fellow in the department, under the supervision of Professor David Jans. In late 2002, Dr Conyers applied to the National Institutes of Health ("NIH") for funding to conduct research, under Professor Jans' supervision, for the following two to three years using the department's laboratory and facilities. He received a grant from NIH in around July 2003. However, the University withdrew its sponsorship of Dr Conyers in late March 2004, following allegations that Dr Conyers had performed poorly and had bullied other scholars/students in the department's laboratory, and after unsuccessful attempts to resolve issues by mediation within the University.

3 By the time of the hearing before me, there were 30 disputed documents, comprising a total of 102 pages. The parties agreed to proceed by way of determination in relation to a sample of 10 representative documents which are contained in the respondent's "Schedule of sample documents". Dr Conyers invited me to satisfy myself that the documents selected were indeed representative, and I have done so.

4 The respondent claims exemptions under sections 30(1) and 32 of the Act in relation to disputed documents 22, 99, 133, 138, 141 and 142. Exemption is also claimed under section 30(1) of the Act for documents 65 and 90, under section 33(1) of the Act for documents 58, 138, 141 and 142; and under section 35(1)(b) for documents 53, 58, 65 and 90. Finally, a number of the persons to whom Notices were issued under section 53A of the Act have communicated to the Tribunal respondent that they object to the release of information concerning their private affairs.

5 Section 32(1) of the Act provides:

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

6 Legal professional privilege protects the confidentiality of certain communications made in connection with giving or receiving legal advice or the provision of legal services, including representation in proceedings in a court. For the purposes of the present case, a document is privileged if it contains a confidential communication between the client (or the client's agent) and the client's professional legal advisers that was made for the dominant purpose of obtaining or providing legal advice[1].

7 It is well settled that legal professional privilege attaches to confidential professional communications between government agencies and their salaried legal officers[2]. Legal professional privilege may also attach to a document that contains a summary of legal advice, even if that summary has been prepared by a non-lawyer[3]. This Tribunal has also held on a number of occasions that the privilege extends to draft letters prepared by a lawyer for a government agency[4].

8 Exemption under section 32 of the Act is claimed by the respondent in respect of disputed documents 22, 99, 133, 138, 141 and 142.

9 According to Mr Andrew Picouleau, Director of Staff Services in the Human Resources Division of Monash University, document 22 is a series of emails in relation to the dispute between the applicant and the University, which "contains confidential discussions or deliberations between senior members of staff of the University". Mr Picouleau noted that when the applicant engaged Holding Redlich in April 2004 to act for him in connection for the termination of his arrangements with the University, Holding Redlich sent a letter to the respondent's solicitor, Clayton Utz. Clayton Utz had sought instructions from Mr Picouleau, and the discussions in document 22 "were conducted in the context of assimilating information for the purposes of responding to the Holding Redlich letter".

10 Document 99 is a 7-page document entitled "Notes for Response to Holding Redlich Letter of 8 April 2004". According to Mr Picouleau, the document was prepared by Mr Greg Crundall, a person in the Employee Relations Branch of the University, for the purpose of being provided by Mr Picouleau to Clayton Utz. Mr Picouleau believes he forwarded the document to Clayton Utz prior to responding to the Holding Redlich letter, but could not recall exactly when.

11 Document 133 is a facsimile cover sheet from Amanda Lazar, Deputy Solicitor of the University, to Mr Crundell, dated 15 April. According to Mr Picouleau, Mr Crundell received this facsimile from Ms Lazar on 15 April 2004, along with an enclosure, which was to be forwarded to Clayton-Utz.

12 According to Mr Picouleau, document 138 is an email to him from Clayton Utz dated 6 May 2004, attaching a draft letter and seeking instructions in relation to the draft letter. Document 141 is an email from him to Clayton Utz seeking advice in relation to the draft letter prepared by Professor Jans dated 23 March 2004 of a proposed letter to the NIH. Document 142 is a handwritten note from Professor Jans to Mr Picouleau forwarding on a confidential basis a print out of the email sent previously by Professor Jans to Mr Picouleau on 3 March 2004. The note and email were sent by Mr Picouleau to Clayton Utz by fax on 12 March 2005 as part of his instructions to the firm.

13 The applicant submitted that document 22 did not consist of "legal communication between lawyer and client", but communication "between Jans and other officers of the University - that are not lawyers".

14 However, Mr Picouleau's evidence in relation to the above documents was uncontradicted and I accept it. I find that documents 22, 99, 133, 138, 141 and 142 meet the "dominant purpose" test articulated in Esso Resources Ltd [5], and that they are exempt under section 32 of the Act.

15 Exemption is claimed under section 33(1) of the Act for documents 58, 138, 141 and 142.

16 Section 33(1) of the Act provides that a document is exempt if its disclosure under the Act would "involve the unreasonable disclosure of information relating to the personal affairs of any person".

17 The name and other information identifying the author of the document is information which relates to the author's personal affairs[6]. A written expression of opinion by a third party to a respondent about an applicant's conduct may be regarded as relating to the author's personal affairs[7]. Similarly, an assessment by the respondent of an applicant for an academic position may contain information relating to the applicant's personal affairs[8]. However, the mere fact that information was obtained in confidence from a person does not make it information about the personal affairs of that person[9]. Similarly, where opinions are provided by persons in their professional capacity, it may be arguable that such opinions are part of their public, rather than private lives, and therefore that documents recording those opinions do not relate to their personal affairs[10].

18 In essence, the test of "unreasonableness" involves weighing two competing interests: the interest in protecting an individual's right to privacy on the one hand, and the interest in disclosure of the information on the other. The applicant's motive for seeking disclosure is relevant to the balancing process in the sense that disclosure is more likely to be unreasonable where access is sought out of some personal crusade or for the purpose of embarrassing or otherwise harming the third persons concerned[11]. For disclosure to be unreasonable, the interest in protecting privacy must be regarded in the circumstances as outweighing the interest in disclosure. Otherwise, the document is not exempt.

19 I have already found that documents 138, 141 and 142 are exempt under section 32 of the Act, and I have found below that document 58 is exempt under section 35(1)(b) of the Act. It might be thought unnecessary therefore to consider the exemptions claimed under section 33(1) of the Act. However, if the exemption claimed under section 33(1) of the Act were to be made out, the documents would be exempt, as the public interest override in section 50(4) of the Act does not apply to documents found to be exempt under section 33(1) of the Act. For this reason, I propose briefly to deal with the exemption claimed under section 33(1) of the Act.

20 Document 58 is a confidential e-mail exchange between Professor Jans and one of the applicant's former supervisors. The document identifies the person with whom Professor Jans is corresponding, and contains opinions of Professor Jans and that other person. Professor Jans has objected to the disclosure of the information concerning his personal affairs. Documents 138, 141 and 142 are described above at paragraph 14.

21 It is clear on the material before me that the documents were exchanged on a confidential basis. It is also clear that they contain personal information about the applicant and others in a manner which would make editing out exempt material impracticable. In particular, to the extent that Dr Conyers alleges errors of fact in document 58, disclosure of the document to the world at large would be unreasonable as compounding the impact of such errors.

22 The documents also contain opinions by persons concerning the applicant. All of these opinions were expressed by the authors in their professional capacities, albeit in the expectation of confidence. While I am satisfied that the personal details of the opinion-holders constitutes information relating to their personal affairs, I am not satisfied that the opinions constitute information relating to the personal affairs of the opinion-holders. On balance therefore, I am not satisfied that the exemption claimed under section 33(1) of the Act has been made out in respect of the entirety of each of the relevant documents.

23 Exemption under section 30(1) of the Act is relied upon by the respondent in relation to disputed documents 22, 65, 90, 99, 133, 138, 141 and 142. Given my findings above and below, it is necessary to consider the exemption claimed in respect of documents 65 and 90 only.

24 Under section 30(1) of the Act, a document is exempt if its disclosure would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and disclosure would be contrary to the public interest.

25 On the authorities, the definition of "officer" in section 5 of the Act is wide enough to include independent external consultants employed by an agency and legal advisers[12], and even a barrister engaged by a Department to carry out a preliminary investigation[13].

26 It is clear on the authorities that documents pertaining to investigation by an employer agency of the conduct or suitability of an individual employee, along with documents generated as part of the respondent's "thought processes" or "reflective consultation", may constitute "consultation or deliberation" such as to satisfy the first limb of section 30(1) of the Act[14]. Moreover, such deliberative processes may have an ongoing quality, and may not necessarily end upon the happening of a particular event[15].

27 However, a file note of a conversation between the applicant and an officer of an agency is a record of events, an account of factual matters, rather than advice or opinion or deliberation, and may therefore fall within section 30(3) so as to remove the availability of the exemption under section 30(1)[16].

28 Draft documents forwarded to other officers in the department for their opinion and comment, have been held to form part of the "consultative process between officers of the Department"[17].

29 It has been held that draft internal working documents, or documents calculated to contribute to or lead to a final determination are generally inappropriate for publication so as not to impede or discourage the effective operation of deliberative processes. Each document must, however, be examined individually[18].

30 According to the applicant, disclosure of the documents would not be contrary to the public interest because of the public interest in ensuring that the University makes decisions about people, and about the use of public monies for research activities, in an open, transparent and fair manner.

31 Professor Jans said that the document contained his opinions offered on a confidential basis. He said that the emails sent to him by those referees were sent to him in confidence, and that the process of candid peer review upon which academe depended, would be undermined if the information were disclosed. He said that disclosure would impair the University's ability to obtain information of a similar class from similar sources in the future.

32 According to the statement of Ms Ann Clare Tapley, Occupational Health Adviser at the University, document 90 is a file note dated 9 March 2004 prepared by her of a conversation she had with her manager, Mr Barton, about the applicant's incident report. Ms Tapley said the note discloses other deliberations which have occurred within the University about the applicant, and also her opinions in relation to some matters discussed with the applicant. However, she said that none of those opinions was relevant to any decision made about handling the applicant's matter, and she objected to the release of the document.

33 According to the respondent, disclosure of the documents would be contrary to the public interest because it is sought only to satisfy the applicant's private interest in pursuing his grievance against the University; there is no public controversy that would justify disclosure in order to "clear the air"; and disclosure would affect the frankness and candour with which officers or others would contribute to the deliberative processes involved in conducting internal investigations. Disclosure would also breach the confidentiality undertakings which would adversely affect the willingness of officers in the future to communicate their views during internal investigations; and would impair the ability of the University to obtain external academics to participate in peer based academic review processes in the future.

34 According to Mr Picouleau, document 65 was provided to him in confidence, and disclosure of this confidential information would damage the University's reputation and make the academics involved less willing in future to provide information in confidence to the University. The type of review to which the information relates is essential in academe, as the University relies on confidential referee reports in assessing the suitability of candidates for appointment.

35 Having examined documents 65 and 90, I am satisfied that document 90 falls within section 30(3) of the Act and is therefore not exempt under section 30(1). However, I consider that document 65 satisfies the first limb of section 30(1) in that it comprises matter in the nature of consultation or deliberation between officers of the University in the course of an internal investigation and deliberation process. Document 65 is therefore only exempt if disclosure would be contrary to the public interest. I consider on the material before me that disclosure would be contrary to the public interest for a number of reasons.

36 Firstly, the motives for seeking disclosure, which is to the world at large, are ones personal to the applicant, on the basis merely that the document is one of those relating to the University's investigation of his academic record in the United States. However, the applicant has embarked upon a legal challenge to the termination by the University of his sponsorship, and I consider that the document is not relevant to that decision.

37 Secondly, the document contains a hearsay account or summary of confidential conversations between another person and Professor Jans, and that other person has objected to disclosure, and raised concerns that the summary prepared of such conversations may be incomplete or inaccurate, and thereby misleading.

38 Thirdly, I am satisfied on the evidence before me that breaching that confidentiality by disclosing the document to the world at large would undermine the capacity of the University in future to obtain candid feedback from referees or supervisors about prospective or current candidates for appointments or fellowships, or in the context of investigation of the conduct of a fellowship-holder at the University. I am also satisfied that disclosure would negatively affect the frankness with which officers or other individuals would contribute to the deliberative processes involved in internal investigations conducted by the University. In this way, disclosure would adversely affect the integrity of the decision-making process in relation to such investigations.

39 Finally, there was no evidence of a public interest in disclosure of the documents, and no material in the documents which would address any such public interest in any event. On balance, therefore, I consider that the general benefit which attaches to disclosure under the Act is outweighed in the circumstances of this case by the matters to which I have just referred.

40 The remainder of the document consists largely of Professor Jans' comments and suggestions, provided by him in confidence to Mr Picouleau as part of the deliberations of the University relating to the applicant and his position there. For the same reasons as outlined in the previous paragraphs, I consider that disclosure of the document would be contrary to the public interest.

41 The exemption claimed under section 30(1) for document 65 is therefore made out.

Confidential information - obtaining similar information in the future

42 Section 35(1)(b) of the Act provides that a document is exempt if its disclosure would divulge information communicated by a person or government to an agency or a Minister, and disclosure under the Act would be contrary to the public interest in that it would be "reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future".

43 The exemption applies to information communicated in confidence to the University by individuals within and outside the University[19].

44 There must be evidence from the respondent sufficient to satisfy the Tribunal that the agency's ability to obtain similar information in the future will be impaired, and that the degree of that impairment is more than minimal or trifling[20].

45 It has been previously held that disclosure of a confidential reference written by an academic about another academic[21], or of the respondent's assessments of individual candidates for an academic position, would be contrary to the public interest[22]. Correspondence from colleagues concerning investigations of doctors, teachers, and school principals have also been held to be exempt under this section[23].

46 Exemption under section 35(1)(b) of the Act is claimed in respect of documents 53, 58, 65 and 90. I have already found that document 65 is exempt under section 30(1) of the Act.

47 According to Professor Jans, document 53 the email exchange was confidential and disclosure would be contrary to the public interest in that it would impair the free exchange of information between academics upon which the system of academic appointment relies. It would also hamper the University's investigative processes, and make him and others less willing to participate in them. That evidence was largely confirmed by the person with whom Professor Jans was corresponding in this email, who has written to the Tribunal objecting to disclosure on the basis of the confidentiality of the exchange, the potential for misconception of the views expressed therein as summarised by Professor Jans, and the negative impact that disclosure would have on the willingness of academics to freely and frankly exchange views.

48 Mr Picouleau has also given evidence that disclosure to the world at large of information provided to the University in confidence would undermine relationships and make staff less willing to provide information, which in turn would affect the University's ability to deal with such matters.

49 I accept the uncontradicted evidence of the respondent's witnesses, and take into account the objection to disclosure made by the academic corresponding with Professor Jans. I am satisfied that document 53 is a confidential exchange of views between academics whose disclosure would be contrary to the public interest in that it would be reasonably likely to impair the University's ability to obtain similar information from academics within or outside the University when investigating or mediating allegations concerning another academic's performance or conduct. For this reason, the exemption under section 35(1)(b) of the Act is made out in respect of document 53.

50 I make the same findings in respect of document 58, which was the subject of uncontradicted evidence from Professor Jans and Mr Picouleau, which I accept. I therefore find that the exemption under section 35(1)(b) of the Act is also made out in respect of document 58.

51 Document 90 is described at paragraph 32 above. Although I accept that such notes were intended to be confidential, I am not satisfied on the material before me that the respondent has discharged the onus it bears of establishing that the University's ability to obtain similar information in the future from its employees will be impaired. Accordingly, I find that the exemption claimed under section 35(1)(b) for document 90 is not made out.

52 Section 50(4) of the Act provides the Tribunal with a discretionary power to grant access to an exempt document where the public interest requires such disclosure. This discretionary power is often referred to as the public interest override. It does not apply to documents found to be exempt under section 33(1) of the Act.

53 According to the authorities, the public interest override can only be invoked where the Tribunal is satisfied that the public interest demands or necessitates disclosure; and not where the Tribunal is merely satisfied that disclosure is in the public interest[24]. This is partly because it is considerations of public interest which confer exempt status on the documents in the first place. There is no public interest where disclosure would merely gratify curiosity or provide information[25].

54 Legal professional privilege is a common law right, and a fundamental human or civil right, and therefore may be displaced only by other public interest factors of the highest order[26].

55 On the material before me, there is no public interest referred to or relied upon by the applicant which is of such a high order as to warrant disclosure of documents found to be privileged and therefore exempt under section 32 of the Act - documents 22, 99, 133, 138, 141 and 142.

56 In relation to the remaining documents found to be exempt under sections 30(1) or 35(1)(b) of the Act (documents 90, 53 and 58), I do not consider that there is a public interest in disclosure sufficiently strong to outweigh the public interest factors which conferred exempt status on the documents in the first place, particularly given the sensitive nature of the material, the need for the University to obtain such information when dealing with internal inquiries or disputes, the dependence of the University on frankness and candour of officers or others in contributing to the internal investigations conducted by the University, and the need to honour the confidentiality of the process so that academics and officers will continue to contribute to it.

57 I note that there is no suggestion of illegality to warrant the clearing of the air by disclosure of the documents, and that disclosure of documents which are drafts is contrary to the public interest[27].

58 I also note that the applicant's interest in the remaining documents is a highly personal one, but also that none of the documents is relevant to any decision by him concerning a future legal challenge to the termination of his sponsorship, as he has already mounted that challenge in the Anti-Discrimination List of the Tribunal.

59 Moreover, the documents do not contain information relevant to the other matters about which the applicant has expressed concern, including the rights and obligations created under the fellowship agreement, the disbursement of an institutional allowance received by the University, the allegations of bullying made against him, or alleged correspondence from the University with external bodies which damaged his chances of finding a new sponsor.

60 For these reasons, I do not consider that the public interest requires disclosure of documents 53, 58 or 65.

61 Accordingly, the decision under review must be set aside in relation to document 90, but is affirmed in respect of all the remaining documents in dispute.

[1] Esso Resources Limited v Commissioner of Taxation (Commonwealth) [1999] HCA 67; (1999) 201 CLR 49; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.

[2] Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 66-67 per Mason and Wilson JJ, and at 77 per Brennan J.

[3] Standard Chartered Bank of Australia v Antico (1993) 36 NSWLR 87 at 93.

[4] Re Osland and Department of Justice [2005] VCAT 1648; Re City Parking Pty Ltd and City of Melbourne (1996) 10 VAR 170, 202; Re Smith and Directorate of School Education (unreported, AAT, Macnamara DP, 14 August 1996).

[6] Re Knight and CORE- The Public Correctional Enterprise (No 1) [2002] VCAT 1769.

[7] Re Richardson and Business Licensing Authority (unreported, VCAT, Judge Higgins VP, 27 August 2003).

[8] Re Love and University of Melbourne (unreported, VCAT, Walker SM, 13 February 2001).

[9] Re Akers and Victoria Police (No 1) [2003] VCAT 397.

[10] Re Ambikapathy and Victorian Legal Aid (unreported, VCAT, Macnamara DP, 27 August 1999); Re Zacek and Medical Practitioners Board of Victoria [2005] VCAT 114.

[11] Re Vaughan and Department of Sustainability and Environment [2004] VCAT 1562; (2004) 21 VAR 307 at [58].

[12] Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347; Re Koch and Swinburne University [2004] VCAT 1513.

[13] Re Moloney and Department of Human Services (2001) 18 VAR 238.

[14] Re Giudice and Environment Protection Authority (unreported, VCAT, Megay, SM, 14 May 2004); Re Hoskin and Department of Education and Training [2002] VCAT 946.

[15] Re Hadad and Victoria Police (unreported, VCAT, Megay SM, 22 March 2002).

[16] Re Pinder and Medical Practitioners Board (1996) 10 VAR 75; Re Porter and Victoria Police [2005] VCAT 962.

[17]Re Moloney and Department of Human Services (2001) 18 VAR 238.

[18] Re Western Mining Corp and Department of Conservation Forests & Lands (1989) 3 VAR 150; Re Brog (1988) 3 VAR 69; Re City Parking Pty Ltd and City of Melbourne (1996) 10 VAR 170.

[19] Ryder v Booth [1985] VR 969; Re Woodford and Ombudsman [2001] VCAT 721; (2001) 18 VAR 64; Re Pepperell and Ministry of Housing and Construction (1989) 3 VAR 191.

[21] De Souza-Daw and Gippsland Institute of Advanced Education (1987) 2 VAR 6 at 9.

[22] Re Love and University of Melbourne (2000) 16 VAR 251; Re Love and University of Melbourne (unreported, VCAT, Walker SM, 13 February 2001).

[23] Re Hoskin and Department of Education and Training [2003] VCAT 946; Re Boletti and Department of Education (unreported, AAT of Vic, Davis PM, 16 May 1997); Re O'Sullivan and Department of Education, Employment and Training (unreported, VCAT, Megay SM, 1 November 2002).

[24] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 15 VAR 360.

[25] Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, Re Just and Department of Justice (1996) 10 VAR 126, 129.

[26] re Chadwick and Department of Property and Services (1987) 1 VAR 444, 454; Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; Re Osland and Department of Justice [2005] VCAT 1648.

[27] Re Ostermeyer and the Alfred Hospital (1998) 13 VAR 449.

Conyers v Monash University

At a glance

Court

Decision date

Source

Judgment (40 paragraphs)

Conyers v Monash University (General) [2005] VCAT 2509 (16 November 2005)

Parties

Cases Cited (4)