This is an application for review pursuant to the Administrative Decisions Review Act 1997 (NSW) of the decision of the respondent, Charles Sturt University, ("the University") to refuse the applicant access to information sought by the applicant pursuant to the Government Information Public Access Act 2009 (NSW) ("GIPA Act").
[2]
The Relevant Statutory Provisions
The University's decision not to release the information sought by the applicant is a reviewable decision within s 80(d) of the GIPA Act.
The University bears the burden of establishing that its decision is justified: GIPA Act, s 105(1). The task of the Tribunal is to decide what is the correct and preferable decision and in doing so, it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision on behalf of the University: Administrative Decisions Review Act s 63.
The objects of the GIPA Act are set out in s 3:
3 Object of Act
(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.
(2) 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.
Pursuant to s 5 of the GIPA Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to s 9(1) of the GIPA Act a person making an application has a legally enforceable right to be provided with access to the information sought unless there is an overriding public interest against disclosure of the information.
Pursuant to s 13 of the GIPA Act:
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.
Section 12 of the GIPA Act provides:
(1) There is a general public interest in favour of the disclosure of government information.
(2) 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.
(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
Schedule 1 to the GIPA Act identifies information in respect of which there is conclusively presumed to be an overriding public interest against disclosure. It is not suggested by the University that any provision of Schedule 1 is applicable in this case.
The only other public interest considerations against disclosure which may be taken into account are those set out in the table to section 14 of the GIPA Act. Clauses 1 and 3 of the table contain the considerations which the University submits are relevant in this case:
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).
(a) prejudice collective Ministerial responsibility.
(b) prejudice Ministerial responsibility to Parliament.
(c) prejudice relations with, or the obtaining of confidential information from, another government.
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
(e) reveal a deliberation or consultation, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
(f) prejudice the effective exercise by an agency of the agency's functions.
(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
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:
reveal an individual's personal information.
contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.
prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings.
prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness.
reveal false or unsubstantial allegations about a person that are defamatory.
expose a person to a risk of harm or of serious harassment or serious intimidation.
In the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
Pursuant to s55(1) of the GIPA Act:
(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.
Sub-section 55(3) provides:
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.
Accordingly, in this case the personal factors of the application can be taken into account in considering whether disclosure of the information sought by the applicant could reasonably be expected to have the effects set out in clause 3 of the Table to section 14 but not in considering whether disclosure of the information sought by the applicant could reasonably be expected to have the effects set out in clause 1 of the Table.
Each of the public interest considerations against disclosure referred to in clauses 1 and 3 of the Table to s14 includes the requirement that the disclosure "could reasonably be expected to" have the nominated effect. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 a Judicial Member of the Administrative Decisions Tribunal stated (at [56] to [58]):
"56. …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."
57. Hayne 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.
58. It is necessary for Council 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."
In Neary v State Rail Authority [1999] NSWADT 107 Judge O'Connor, President of the Administrative Decisions Tribunal, held:
35. An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - 'expect' - carries a firmer connotation than words such as 'anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.
In Leech v Sydney Water Corporation [2010] NSWADT 298 a Judicial Member of the Administrative Decisions Tribunal held (at [25]):
25. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.'
[3]
Background
The information to which the applicant had sought access was:
"a copy of the report on the investigation into [a named person] for academic misconduct conducted by Charles Sturt University, specifically information on whether she was questioned about a text message she sent referring to 'our' introduction/assignment instead of 'my', and her response. This report has been requested by the NSW Ombudsman (Senior Investigator [name])".
The named person the subject of the investigation (to whom I shall refer in these reasons as E) was the former wife of the applicant. Because identification of the applicant would also identify E, in order to protect E's privacy the Tribunal made orders prohibiting the publication of the names of either the applicant or E.
The background to the application disclosed by the evidence before the Tribunal is as follows.
During the applicant's marriage to E, E had been a student at the University's School of Policing, studying for the Associate Degree in Policing Practice which is a requirement for confirmation as a constable in the NSW Police Force. In June 2015, at about the same time as the Police sought an apprehended violence order against the applicant for the protection of E, the applicant made a complaint to the University that E had engaged in academic misconduct in the course of her studies at the University.
The University investigated and completed a report into the applicant's allegations in July 2015.
On 22 June 2016 the applicant made application under the GIPA Act for access to the report. On 1 July 2016 the University made a decision to refuse access. The applicant sought review of that initial decision by the Information and Privacy Commissioner who, on 26 September 2016, recommended that the University reconsider the application by reason that:
"the decision maker appears to have been involved in the findings of fact and overall decision making in respect of the report which is the subject of the access application",
and that
"in these circumstances a fair-minded observer might reasonably apprehend that the decision maker might not have brought an impartial mind to the decision on the access application".
The University appointed Ms Kylie Bennetts, a solicitor employed by the University as Director Legal, to undertake the review of the initial decision. The University published notice of Ms Bennetts' decision on 21 October 2016. By that decision the University confirmed the decision not to release the report.
Ms Bennetts' report identified the public interest considerations in favour of disclosure as being:
(a) The general public interest in favour of disclosure of government information;
(b) Disclosure of the information could reasonably be expected to reveal or substantiate whether or not the University deals with allegations of academic misconduct appropriately; and
(c) Disclosure of the information could reasonably be expected to reveal or substantiate whether an agency (or member of staff of an agency) has or has not engaged in misconduct or negligent, improper or unlawful conduct.
Ms Bennetts found the following public interest considerations against disclosure set out in the table to Section 14 of the GIPA Act were present in relation to the applicant's application:
Clause 1(d): disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
Clause 1(f): disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
Clause 3(a): disclosure of the information could reasonably be expected to reveal an individual's personal information.
Clause 3(b): disclosure of the information could reasonably be expected to contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act (NSW) 1998.
Clause 3(d): disclosure of the information could reasonably be expected to prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness.
Clause 3(e): disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory.
Clause 3(f): disclosure of the information could reasonably be expected to expose a person to a risk of harm or serious harassment or serious intimidation.
Ms Bennetts' report also identified the personal factors of the application as follows:
(a) The applicant was the ex-husband of the individual who is the subject of the report to which he had requested access;
(b) There was an apprehended violence order in place against the applicant in relation to the subject of the report;
(c) On 23 May 2016 the applicant was placed on a Court ordered bond in connection with charges brought against the applicant relating to his communications with the subject of the report, including charges relating to a use of a carriage service to harass and charges relating to use of a postal service to harass.
As required by s55 of the GIPA Act these personal factors were taken into account in considering whether disclosure of the report could reasonably be expected to have the effects set out in clauses 3(a), (b), (d), (e) and (f) and not in relation to clauses 1(d) and 1(f).
The applicant sought further review by the Information Commissioner of the internal review decision. The Information Commissioner concluded that the internal review had correctly identified the relevant public interest considerations in favour of disclosure and against disclosure save that the Commissioner indicated that she was not satisfied that the consideration identified in clause 3(d) of the table to Section 14 of the GIPA Act was a relevant public interest consideration in relation to the application. The Commissioner made no recommendation in relation to the University's decision to refuse access to the report.
[4]
The Application, evidence and submissions
The applicant filed his application for review of the University's decision to refuse access on 27 February 2017.
At the hearing before the Tribunal, the University, represented by Mr Fredericks of Counsel, did not seek to argue that there was any risk of prejudice to the fair trial of any person or the impartial adjudication of any case or any person's right to procedural fairness and did not seek to maintain that consideration 3(d) of the considerations listed in the table to Section 14 was relevant in this case.
The applicant tendered a bundle of documents attached to his submissions and an extract from the transcript from his own trial on the harassment charges in respect of which he was placed on a bond.
The University relied upon affidavits from Ms Bennetts, the internal reviewer, and from Ms Eager, the solicitor acting for the University in relation to the application.
Ms Eager's affidavit attached: a number of the University's published policies including its "Student Academic Misconduct Policy" and its "Complaints Procedure - External Individuals and Bodies"; documents produced by the Commissioner of Police pursuant to a summons; and correspondence from the applicant concerning that summons.
Ms Bennetts' affidavit set out the history of the application and described the process adopted in relation to the internal review.
The University also tendered, on a confidential basis, the report, the subject of the application for access. The report became Confidential Exhibit 1.
Each of the parties provided written and oral submissions at the hearing. Mr Fredericks addressed the Tribunal in relation to the content of the report, Confidential Exhibit 1, in the absence of the applicant.
On 20 July 2017 the applicant emailed the Tribunal seeking to "pass on two points which I did not address in my response but only remembered after we finished." As the University did not oppose the applicant having leave to rely upon those submissions, provided it received an opportunity to respond, the Tribunal received the applicant's further submissions and received further brief submissions in reply from the University dated 8 August 2017.
The University maintained that the decision to refuse the applicant access to the report was the correct and preferable decision. It relied upon the "considerations and conclusions of the decision" and made further submissions in support of its position.
I am satisfied that the University correctly identified the public interest considerations in favour of disclosure, which I have set out above at [23], and the personal circumstances of the application, set out above at [25].
In determining the public interest considerations against disclosure it is appropriate to address in turn the s14 considerations relied upon by the University.
[5]
Clauses 1(d) - Prejudice the supply of confidential information and 1(f) - Prejudice the effective exercise of functions
The University's written submissions addressed clause 1(d) (prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions) and clause 1(f) (prejudice the effective exercise by the agency of its functions) together. As the University submits, there is substantial overlap between these two factors.
The University identified its functions by reference to s7 of the Charles Sturt University Act 1989 (NSW) which provides as follows:
7 Object and functions of University
(1) The object of the University is the promotion, within the limits of the University's resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence.
(2) The University has the following principal functions for the promotion of its object:
(a) the provision of facilities for education and research of university standard, having particular regard to the needs and aspirations of the residents of western and south-western New South Wales,
(b) the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry,
(c) the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,
(d) the participation in public discourse,
(e) the conferring of degrees, including those of Bachelor, Master and Doctor, and the awarding of diplomas, certificates and other awards,
(f) the provision of teaching and learning that engage with advanced knowledge and inquiry,
(g) the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University's academic programs.
(3) The University has other functions as follows:
(a) the University may exercise commercial functions comprising the commercial exploitation or development, for the University's benefit, of any facility, resource or property of the University or in which the University has a right or interest (including, for example, study, research, knowledge and intellectual property and the practical application of study, research, knowledge and intellectual property), whether alone or with others,
(a1) without limiting paragraph (a), the University may generate revenue for the purpose of funding the promotion of its object and the carrying out of its principal functions,
(b) the University may develop and provide cultural, sporting, professional, technical and vocational services to the community,
(c) the University has such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the University, or as may complement or be incidental to the promotion of the object and interests of the University,
(d) the University has such other functions as are conferred or imposed on it by or under this or any other Act.
(4) The functions of the University may be exercised within or outside the State, including outside Australia.
The University relied specifically upon the object set out in sub-section (1) and the function set out in paragraph (2)(g).
The University's submissions describe the "key point" as that:
"Provision of the report to [the applicant] could reasonably be expected to:
(a) Discourage others from providing confidential information to the University in the future;
(b) This would undermine the University's ability to become aware of possible academic misconduct and to fully investigate such misconduct; and
(c) This would in turn prejudice certain functions and objects of the University."
The University submitted:
There can be little argument that it is fundamentally important to CSU's ability to exercise its functions that it be able to properly investigate allegations of academic misconduct. Indeed [the applicant] appears to recognise this.
Further, there can be little doubt that (as found by the Decision) maintaining confidentiality of investigations is important otherwise:
witnesses may become reluctant to come forward and assist future inquiries; and
persons the subject of the complaint would be less willing to cooperate with the inquiry.
The University submits that by reason of these issues considerable weight should be given to these factors.
The applicant submitted that he had already provided information to the University and therefore no prejudice would arise if he were given a copy of the report. This submission fails to acknowledge that the confidential information in the report is not limited to confidential information of the applicant.
The University submitted that even in relation to disclosure of the applicant's confidential information, a consequence of the release of the report might be to discourage other complainants in future matters if they were aware that confidential information may be disclosed under the GIPA Act.
Given the particular circumstances of this case, I do not consider that that is a significant issue. The fact that a report into a complaint may be disclosed to the complainant at the complainant's request is not likely in my view to discourage future complaints from being made.
However that does not mean that the clause 1(d) and 1(f) factors are not relevant or of significant weight in this case. It is important to the investigation of academic misconduct that any persons communicating with the investigators can be assured, if appropriate, that their communications will be treated confidentially. The disclosure of the report will disclose confidential communications from persons other than the applicant himself.
The disclosure of the report has the potential to prejudice the future co-operation of other relevant persons in relation to future enquiries. Moreover the knowledge on the part of a person the subject of a complaint of academic misconduct or knowledge that their response to the complaint may be disclosed to the person making the complaint may also inhibit the co-operation of such persons with the investigation.
The applicant submitted that the University's own policies allowed for release of information. The applicant referred to paragraph 49 of the University's Student Academic Misconduct Policy, which provides that cases of proven academic misconduct under the policy may be made public by the Deputy Vice Chancellor (Academic). The information made public may include the nature of the academic misconduct, the penalty imposed and the result of any appeal.
As the University submitted, that paragraph does not mandate disclosure and the University further pointed to paragraph 50 of the Misconduct Policy which provides:
The identity of students, staff or other persons involved in an investigation of academic misconduct, including the identity of any person alleged to have been in breach of this Policy or found guilty of academic misconduct under this Policy is confidential so long as the tenets of natural justice are adhered to.
The appellant further submitted that he was seeking the information on behalf of and at the request of the New South Wales Ombudsman. The only evidence presented by the applicant to support the proposition that he was seeking the information on behalf of the Ombudsman, were two emails from a senior investigation officer with the Police division of the NSW Ombudsman. That officer did suggest the applicant make an application to the University under the GIPA Act for a copy of the report. However that does not amount to a request by the Ombudsman that the applicant obtain the report for the Ombudsman's own purposes. As the University pointed out, the NSW Ombudsman clearly has the power to direct the University to provide a copy of the report to the Ombudsman (s18 of the Ombudsman Act 1974 (NSW)) and, as Ms Bennetts attested in her affidavit, the Ombudsman has not made any such direction.
[6]
Clause 3(a) - Reveal an individual's personal information
In his written submissions the applicant submitted "the request is not seeking the release of personal information, such information can be redacted". In oral submissions the applicant submitted that he is only seeking a specific section of the report which he did not expect to contain person information.
Personal information is defined in Schedule 4 Section 4 of the GIPA Act. That is "information or an opinion…about an individual…whose identity is apparent or can reasonably be ascertained from the information or opinion".
When it was suggested to the applicant that the whole report was personal information of E, his former wife, he accepted that that was correct. However he submitted that "the parts which [he] sought to have disclosed were not so sensitive that the public interest in disclosure should be overridden".
The applicant relied in this regard on a report in the Canberra Times referring to alleged "dumbing down of teaching programmes at the Police Academy". At best, that article indicates that there is a public concern about teaching programmes offered by the University in relation to Policing Practice, it does not diminish the public interest against disclosure of the report arising from the fact that disclosure could reasonably be expected to reveal E's personal information.
I find that disclosure of the report could reasonably be expected to reveal E's personal information.
[7]
Clause 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act
The relevant information protection principle to which the University referred in its submissions was that set out in Section 18 of the Privacy and Personal Information Protection Act (PPIP Act), which provides as follows:
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
The evidence disclosed that E had objected to the release of the report and her personal information.
Again the applicant submitted that his request was not seeking personal information but he nevertheless accepted that the report was personal information of E, his former wife. The applicant's submission ultimately was that on balance the public interest in the investigation of academic misconduct should override the public interest in observing the information privacy principles.
I find that disclosure of the report could reasonably be expected to contravene the information protection principle set out in s18 of the PPIP Act in that it would involve the disclosure of personal information of E, that the disclosure would not be directly related to the purpose for which the information was collected, and that the University is aware that E objects to the disclosure.
[8]
Clause 3(e) - disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory
In his written submissions the applicant submitted that the allegations which he had made in respect of E could not be said to be false or unsubstantiated because "evidence exists to the contrary". The applicant submitted:
"it is the claim by the University that the allegations are false or unsubstantiated which is the very point that is in dispute. The fact is no legal action for defamation has been initiated".
As the University submitted, there can be no doubt that allegations of academic misconduct are defamatory.
The University submitted that the personal circumstances of the application, as outlined above, were significant in determining whether this consideration is established. As the University submitted, the fact that E had not commenced defamation proceedings is irrelevant. The critical questions are whether the disclosure of the report could reasonably be expected to reveal allegations that were defamatory and whether those allegations are false or unsubstantiated.
[9]
Would disclosure of the report reveal the allegations?
Although the allegations were made by the applicant and therefore disclosure of the report to the applicant would not reveal the allegations to the applicant, disclosure of the report cannot be made subject to conditions (s73(1) of the GIPA Act), and therefore disclosure of the report would potentially reveal the allegations more widely than to the applicant alone.
Sub-section 73(2) of the GIPA Act does permit access to a record of information to be made available subject to conditions as to how the right of access is to be exercised, such as that the applicant will not take notes from or take a copy of the record, but only to prevent there being an overriding public interest against disclosure. The possibility that the report could be made available to the applicant on such conditions was not raised by either party in submissions or at the hearing. Were this consideration (3(e)) the only significant or overriding consideration against disclosure, the provision of access subject to limitations upon the means by which the right of access is to be exercised might have been an appropriate course to adopt. However, as this consideration is neither the only, nor the most significant, public interest consideration against disclosure, it is not necessary to give this possibility further consideration.
[10]
Are the allegations false or unsubstantiated?
The applicant may be correct in submitting that the question whether the allegations are false is not necessarily determined by the rejection of those allegations or the decision made in the report not to uphold the allegations. However in my view there can be no doubt that the allegations are relevantly "unsubstantiated". Without referring to the content of the report, it is implicit in the fact that the University did not uphold the allegations of academic misconduct that the allegations which are the subject of the report are "unsubstantiated". The applicant has not produced any evidence which alters that circumstance.
The applicant suggested that there could be no unsubstantiated allegation in relation to the text message, the investigation of which, the applicant suggested, was the only element of the report that he sought. The text message in question was one which E had sent the applicant on 2 February 2015 referring to another student who had allegedly copied one of E's assignments. The text message was as follows:
"He tried to change a few words around in Part 1 but he cut and pasted our introduction and second part of essay words by word. He did not even bother to remove my brackets." [Emphasis added]
However the defamatory allegation that would be revealed by disclosure of the report is not that E sent the text message, it is the applicant's allegation that E was guilty of academic misconduct. The text message is not unequivocal evidence of academic misconduct. As Mr Fredericks submitted, the use of the words 'our' and 'my' carries very little significance in what was clearly a casual text message.
In any event, as noted above, it would be impracticable to extract sensibly any part of the report limited to the investigation of the text message.
I find that disclosure of the report could reasonably be expected to reveal unsubstantiated allegations about E that are defamatory. I consider that this is less significant in the consideration of the balance of public interest than other factors upon which the University relies.
[11]
Clause 3(f) - expose a person to risk of harm or serious harassment or serious intimidation
In respect of this clause of the table to s14, the applicant's submissions were largely directed to disputing the justification for his convictions and the apprehended violence order issued against him. The applicant did not dispute the fact of the convictions or the making of the apprehended violence order nor did he seek to tender evidence to cast any doubt upon the justification for the convictions and order. I accept that there have been incidences of harassment and intimidation by the applicant against E in the past.
As the applicant pointed out, "it cannot be intimidation or harassment to legitimately question the outcome of an investigation". However that is not the relevant test. The question is whether the disclosure of the report could reasonably be expected to expose E to serious harassment or serious intimidation.
The University submitted that "having regard to the s55 issues, [that is the personal circumstances of the application], clause 3(f) is decisive against [the applicant] being given access to the report". The University submitted:
"it is clear that [the applicant] has embarked on a campaign against [E] and there is a reasonable inference that his initial academic misconduct complaint and the application are part of that campaign".
The University's submissions note that the applicant's concerns have been brought to the attention of the University's Vice Chancellor, the University ombudsman, the University's Secretary and Director, Governance and Corporate Affairs and the University's Director Legal:
"all of whom would have statutory obligations to report the allegations to the Independent Commission Against Corruption if they suspected, on reasonable grounds, that corrupt conduct had occurred".
The University submitted:
"there can be little doubt that [the applicant's] attempts to obtain the report are part of his campaign and that if he does obtain a copy of the report he will (regardless of the findings of the report) use it as part of his campaign against [E]".
As the applicant pointed out in oral submissions, the fact that he had been convicted of two offences did not indicate that production of the report or parts of the report would expose E to serious harassment or serious intimidation. However, the inference is fairly available from the applicant's conduct including the harassment, of which he has been convicted, that the applicant is seeking access to the report for the purpose of causing further harm to E.
As the University points out, the applicant's complaint was first raised only two days after the applicant had separated from E. The University noted that the applicant had made allegations that E had made false statements and committed acts of perjury. The University also pointed to communications from the applicant to the University (pages 9 and 69 of the annexures to Ms Bennetts' affidavit) in which the applicant referred to the possibility of taking the issues raised by his application to the media. As Mr Fredericks submitted on behalf of the University, there is evidence in the correspondence sent from the applicant, that the applicant regards the rejection of his complaints as proof of some conspiracy or complicity on the part of the University. In an email from the applicant to Ms Bennetts sent upon receipt of her internal review report (at page 52 of the annexures to her affidavit) he stated:
"I am simply not going to go away - I am firm in my belief that the investigation was insufficient or the action subsequent was contrary to the findings and CFU's desperation to conceal the truth indicates complicity."
The University submitted, and I accept, that the inference should be drawn that the applicant's real motivation in seeking access to the document is revenge against his former wife and that the applicant is likely to use the report, if disclosed to him, as part of a campaign against his former wife.
The University did not suggest that there is any particular element in the report that would increase the capacity of the applicant to cause harm to E, should he be so minded, and I do not find that this element is, as the University suggests, decisive against the applicant having access to the report. Nevertheless I find that release of the report could reasonably be expected to expose E to a risk of serious harassment or serious intimidation and that this is a significant factor relevant to the consideration of the balance of public interest.
[12]
The balance required by the Act
In balancing the public interest considerations against disclosure of the report it is necessary to bear in mind that (by virtue of s73 of the GIPA Act) disclosure of the report to the applicant cannot be made subject to conditions. Although the applicant asserts that he does not seek the report for his own benefit but for the benefit of the NSW Ombudsman, as noted above, that justification cannot be given credibility in circumstances where the Ombudsman has the capacity to obtain the report himself if it were considered relevant and the Ombudsman has not sought access to the report.
As recorded above, I find that each of the public interest considerations against disclosure relied upon by the University is present in this case. In light of the personal factors of the application as identified above, the considerations relating to the disclosure of private information of E and exposure of E to further harassment if the report were disclosed are very significant and strong factors against disclosure.
The applicant submitted that it is necessary that the report be produced in order to verify the propriety of the investigation. The applicant stated that he had always been open about his intent to involve the media where misconduct had been discovered. He submitted "the public has a right to know if the Police are covering up and if the University is aiding in that". The applicant said that there was objective evidence that his former wife had given false evidence and made no apologies for pursuing the matter. The conclusion which I draw is that the applicant will not resist the opportunity to utilise the report to make further allegations if the report is released.
I find there is no evidence before me capable of establishing that E had at any time given false evidence.
In response to the University's submission that he had demonstrated vindictiveness towards his former wife, the applicant stated that, "if the misconduct can be verified it should pursued." He stated that he was "only putting forward things which were verifiable". The foundation for the applicant's allegation that there is objective evidence that his ex-wife had given false evidence was largely founded upon the use of the word "our" and "my" in the text message of 2 February 2015 set out above. As Mr Fredericks submitted on behalf of the University, that use is no more than might be expected in a casual text message. I do not consider the applicant has demonstrated that the public interest in disclosure of the document extends beyond the general interest in disclosure of government information.
I am satisfied that there is an overriding public interest against disclosure of the report. Accordingly the application is refused and the decision of the University to refuse access to the report is affirmed.
[13]
Order
For the above reasons the Tribunal orders:
1. The decision under review is affirmed
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 13 November 2017
Parties
Applicant/Plaintiff:
DDT
Respondent/Defendant:
Charles Sturt University
Legislation Cited (6)
Government Information Public Access Act 2009(NSW)
In his oral submissions the applicant sought to suggest that he only sought "the section of the report relating to a particular line of inquiry relating to a text message sent by [E]", in particular whether the text message was received and whether it was taken into account. The text message in question was that referred to in the applicant's access application set out at [16] above.
Section 74 of the GIPA Act would permit the redaction of the report to limit the information disclosed, if that were an appropriate and practical mechanism to avoid the disclosure of information in respect of which there is an overriding public interest against disclosure. However, I have reviewed the report and have concluded that it would not be practicable to produce a redacted version of the document limited in the fashion suggested by the applicant.
The applicant also stated in oral submissions that he was not seeking information which would disclose any information concerning persons other than E or information provided by other parties. Again, it would not be practicable to produce a report redacted so as to exclude such information.
In any event, in my view, the potential inhibition on the disclosure of information and the University's functions arising from the disclosure of those parts of the report which disclose information concerning E alone and information provided by E alone would itself and on its own be significant.
I find that disclosure of the report could reasonably be expected to prejudice the supply to the University of confidential information that facilitates the effective exercise of the University's functions and prejudice the effective exercise by the University of the University's functions.