EMC v The University of Sydney

The issues for determination

1. The issues for determination in these proceedings are as follows: 1. Whether the Tribunal should make an order restricting the publication of the Applicant's name, that is make an anonymisation order. 2. Whether the University should be permitted to raise additional grounds not relied on in its reviewable decision as public interest considerations against disclosure. 3. Whether there is a presumed conclusive overriding public interest against disclosure of the information in the emails listed as items 1, 2 and 7 in the Schedule on the grounds of legal professional privilege: GIPA Act, s 14(1), Sch 1, cl 5. 4. To identify the public interest considerations in favour of disclosure of the information, including any personal factors of the application that support disclosure. 5. Whether the public interest against disclosure in cl 1(e), 1(f) and/or 1(g) of the Table to s 14(2) applies to the information in items 4, 5 and 6 listed in the Schedule (and in the event the Tribunal finds against the University in relation to issue (a) above, the information in items 1, 2 and 7) and, on balance, whether those public interest considerations against disclosure outweigh the public interest in favour of disclosure. 6. Whether the public interest against disclosure in cl 3(a) and 3(b) of the Table to s 14(2) applies to the redacted information listed in item 3 of the Schedule and, on balance, whether that public interest consideration against disclosure outweighs the public interest in favour of disclosure. 7. Whether as a result of this review, the Tribunal is satisfied that any or all of Ms Dickson, Mr Stewart or Mr Strbik (all senior employees and officers of the University) have failed to exercise in good faith a function conferred on them by or under the GIPA Act and, if so, whether the evidence warrants the matter being referred to the attention of the Minister under section 112 of the GIPA Act.
2. With two limited exceptions, it is not the function of the Tribunal in this proceeding to consider the merits of the Applicant's complaints against the University (or its officers) in relation to the recruitment process (either specifically or generally) or its investigation of the Applicant's code of conduct complaints. Nor does the Tribunal have the power to resolve any grievances or sense of disquiet the Applicant may have about the conduct of some of the University's senior employees. This is because, as the Tribunal has noted in Kreutzer v University of Sydney [2015] NSWCATAD 270 at [72]; Raven v University of Sydney [2015] NSWCATAD 104, [45]; Smith v Pittwater Council [2016] NSWCATAD 67 at [11]; and Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [117], proceedings for administrative review under the GIPA Act should not be used as "a vehicle for the collateral review of the merits or validity of the official actions taken by an agency".
3. The first exception concerns the potential application of a public interest consideration in favour of disclosure that could reasonably be expected to reveal or substantiate that the University (or a staff member of the University) has engaged in misconduct, improper or unlawful conduct. I will consider the Applicant 's submissions on this issue below under the heading 'Public interest considerations in favour of disclosure'.
4. The second exception is noted in Kreutzer in which Senior Member Walker says at [72] that: "Such criticisms may, however, be relevant on the question of improper purpose under s 125" (of the Evidence Act in relation to a claim for legal advice/ legal professional privilege). I will return to the Applicant's submission that the University's claim for legal advice privilege is defeated because of improper purpose below.
5. It is also important to note that while the Applicant has adopted the recommendations and findings of the IPC in the two written reports - to the extent they support disclosure - the function of the Tribunal in these proceedings is to make 'the correct and preferable decision' having regard to all the material before it, including the parties' submissions and the confidential documents; at the time it makes the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Danis at [34]. It is not the Tribunal's role in these proceedings, as the University submitted, to weigh the conclusions and recommendations of the IPC against the University's submissions or the evidence of Mr Fry or to consider the merits of or to review the recommendations or findings made by the IPC.

Relevant Legislation

1. In Veall v Department of Planning and Environment [2018] NSWCATAD 47 , Senior Member Dinnen summarised the relevant legislative provisions and legal principles in an application for release of information under the GIPA Act at [7]-[23] as follows: Tribunal's jurisdiction and powers 7. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 8. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 9. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3). 10. In determining the application, the Tribunal 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: s 107(1) of the GIPA Act. The GIPA Act 11. Section 3(1) of the GIPA Act provides: 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. 12. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object. 13. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access Applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act. 14. Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant. 15. Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision-maker to: (1) identify relevant public interest considerations in favour of disclosure, (2) identify relevant public interest considerations against disclosure, (3) attribute weight to each consideration for and against disclosure, and (4) determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 16. The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act. Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act. (Omitted). 17. Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent. 18. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. In undertaking this exercise the Tribunal is to be guided by section 15 of the GIPA Act. 19. Section 54 of the GIPA Act requires an agency to take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application. 20. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant 's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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. "Could reasonably be expected…" 21. The words "could reasonably be expected to" have been held to require "something more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is, of course, a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. 22. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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... 23. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk, or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

The public interest considerations against disclosure nominated by University in the Table in s14.

1. The considerations listed in the Table to s 14 which are relevant to this application are as follows: 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): (e) reveal a deliberation or consultation conducted, 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)… 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, (b) 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.

Balancing the competing public interests

1. In balancing the competing public interest for and against disclosure, the Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 (at [104]) explained that, while s13 of the GIPA Act requires the Tribunal to make a broad value judgment: [104] " … it is not one to be made in a vacuum. It is a judgment to be made having regard to the objects of the legislation, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act".
2. In Destination NSW v Taylor [2019] NSWCATAP 123, the Appeal Panel observed that, in ascribing weight to the competing public interest considerations under s13 of the GIPA Act: [69] … the weight to be attributed to each pubic interest consideration depends on the effect of disclosing each particular piece of information. The Tribunal carefully assessed the public interest considerations for each piece of information. The weight that the Tribunal gave to the considerations against disclosure depended on the probative value of the evidence about the effect of disclosing that information.

Burden and standard of proof

1. In Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317, Senior Member Goodman SC observed at [36] that: [36] The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the Applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
2. As to the standard of evidence required to establish that disclosure could reasonably be expected to have a nominated effect, Principal Member Pearson in Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 said at [67]: [67] In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table to s 14, referring to Searle and the authorities discussed in that decision, and held: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
3. In Page v Commissioner of Police [2020] NSWCATAD 163 at [58], Senior Member Goodman SC referred to the reasoning of the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83] as to the requirements for proof of questions of fact in administrative review proceedings generally: [54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].

Unconditional release of government information

1. Under s73 (and s15(e]) of the GIPA Act an agency (in this matter, the University) is not entitled to impose any conditions on the Applicant 's use or subsequent disclosure of the information released under a GIPA Act access application. The Tribunal has held that disclosure under the GIPA Act is in effect a release to the public at large: Danis at [86]; Griffin v Sydney Trains [2020] NSWCATAD 234 at [28]; EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [59].

Conclusive presumption against disclosure of privileged information.

1. Under s14(1) of the GIPA Act, an overriding public interest against disclosure is conclusively presumed in respect of government information described in Schedule 1. Relevantly, clause 5 of Schedule 1 provides: 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.

Section 112 referral - whether an officer has failed to exercise a function in good faith.

1. Section 112 of the GIPA Act provides: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Confidential material

1. The University provided to the Tribunal on a confidential basis a copy of the withheld documents in items 1, 2, 3, 4, 5, 6 and 7 in the Schedule of Documents. Items 1, 2 and 7 were contained in two sealed envelopes marked: 'confidential: conclusive presumption documents'. Items 3, 4, 5 and 6 were contained in a sealed envelope marked: 'confidential: non-disclosure documents'. The Tribunal was taken to this material, and submissions were received in a confidential session in the absence of the Applicant and the public on the day of the hearing. Under s107(1) of the GIPA Act the Tribunal must not, on review of an agency's decision, disclose any information for which there is an overriding public interest against disclosure, and must receive evidence and hear argument in the absence of the public, the review Applicant and the Applicant 's representative if it forms the opinion that this is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure.
2. To give effect to the prohibition in s107, the Tribunal made a confidentiality order under section 64 of the NCAT Act that the confidential material referred to above not be disclosed except to the University.

The hearing and material before the Tribunal

1. In addition to the confidential documents, the University relied on the following written material: 1. Affidavit of Ashley Anderson Fry sworn on 23 September 2020 and annexures. 2. Submissions dated 23 September 2020. 3. Respondent's Submissions in Reply dated 22 October 2020. 4. Respondent's Further Submissions dated 16 November 2020. 5. Respondent's Further Submissions in Reply dated 5 February 2021.
2. The University also relied on the oral evidence given by Mr Ashley Fry as well as the oral submissions of counsel during the hearing on 2 November 2020. Mr Fry was also cross-examined by the Applicant.
3. The Applicant relied on the following written material: 1. Application for administrative review filed on 30 July 2019 (which attached a bundle of documents including: the original decision dated 24 September 2019; the IPC report dated 30 January 2020; letter from University to the IPC advising that a new decision will be made in response to the first IPC report; the internal review decision, the IPC Report dated 7 July 2019 and a letter dated 16 July 2019 from the University's Group Secretary in relation to the Second IPC Report. 2. Submissions dated 14 October 2020 (which attached a bundle of documents including the Position Description for the Senior Workplace Advisor roles; emails from Ms Flamsteed (the recruitment consultant); the University Recruitment and Selection Policy and Code of Conduct. 3. The two IPC Reports, the first report dated 30 January 2020; the second report dated 7 July 2020- to the extent they supported disclosure. 4. Applicant's Further Submissions filed on 17 December 2020. 5. Applicant's Further Submissions in Reply filed on 16 March 2021. 6. The documents previously released by the University which are annexed to Mr Fry's affidavit, including emails from senior employees of the University (which I will return to below).
4. The Applicant also made oral submissions at the hearing on 2 November 2020, and cross-examined Mr Fry on his affidavit evidence.

Non-publication/ anonymisation orders

1. At the hearing, the Applicant sought an order for non-disclosure (anonymisation) of her name. She submitted that the order was necessary because there was a real risk that her future employment prospects, particularly within the university sector, could be prejudiced. The Applicant submitted that two emails by senior members of staff, Mr Strbik and Ms Dickson both dated 7 August 2018 (which are set out below in my summary of the Applicant's case) contained sensitive and disparaging remarks about her suitability for employment with the University. The Applicant submitted, and I accept, that she holds a genuine concern that the publication of her name could affect her future career prospects. The Applicant also submitted, and I accept that her last name is not a common one.
2. The University neither consented to nor opposed the request for a non-publication order. Nor did it challenge the reasons given by the Applicant in support of the non-disclosure order.
3. The applicable legal principles were summarised in CVV v United Resource Management Pty Ltd (URM) [2016] NSWCATAD 271 at [4]-[10] as follows: [4] The Tribunal usually proceeds in accordance with the principles of "open justice". [5] Section 64(1)(a) of the NCAT Act provides that: 64 The Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. [6] The Tribunal accepts the principles set out in State of New South Wales (Justice Health) and anor v Dezfouli ('Dezfouli') [2008] NSWADTAP 69 interpreting a similar provision in the Administrative Decisions Tribunal Act 1997 (NSW). As the Appeal Panel observed in Dezfouli [at 58]: '... it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).' [7] That remains the case under the NCAT Act. [8] As stated in that Dezfouli at [81]: 81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an Applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. [9] As stated in Carroll v Tokdogan & Anor [2015] NSWCATAD 200 (2 October 2015) at [8]: "Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, the power contained in s 64 should be exercised sparingly." [10] Nevertheless, there are instances where it is appropriate to suppress details of a party's or other name and address. This has occurred in a variety of situations in NCAT and, prior to that, in the ADT (See for example LD v Director-General DET and Anor [2009] NSWADT14; JQ v Double Bay Out of School Hours Inc [2008] NSWADT337; ACE v State of NSW (Tafe Commission and DET) (No 2) [2011] NSWADT77; OV and anor v QZ and Anor (No 2) [2008] NSWADT 195.
4. In accordance with the principle of open justice, it is the usual practice of the Tribunal to publish all decisions relating to GIPA Act proceedings electronically on the Caselaw.nsw.gov.au website and for the decisions to be re-published on the Austlii and BarNetJade websites: Mr X v Teachers Mutual Bank Limited [2020] NSWCATAD 218 at [1]and [18], per Deputy President Hennessy.
5. As the Appeal Panel observed in ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77 at [20], endorsing the reasoning of Deputy President Hennessy in LD v Director-General, Dept of Education and Training [2009] NSWADT 14 at [23], "there can be little doubt that publication of the reasons for decision on the internet permits almost universal access to the information they contain …". The Appeal Panel then said at [21,] that the "improved efficiency and sensitivity of search engines available on the internet makes it likely that anyone desiring information about the Applicant for any purpose - including purposes unconnected with these proceedings - can easily find and access the published information concerning … (the Applicant) at any time".
6. Having considered the application I am satisfied, for the purposes of these proceedings, applying the reasoning in the authorities referred to above, and adopting the approach of Deputy President Hennessy in Mr X, that it is desirable to make a non-publication in this matter because: 1. Firstly, while there was no other evidence, I accept the Applicant has genuine concerns that future searches of her name on the internet could negatively affect her future employment opportunities, particularly within the university sector. In this connection, I note that the emails from Mr Strbik and Ms Dickson both dated 7 August 2018 (set out below at [63]-[75]) raise sensitive questions about the Applicant 's suitability for "any type of employment" within the University although it is not clear from the emails themselves why those views have been expressed. Given the focus of these proceedings, none of the University staff responsible for the recruitment decision have given evidence or been tested publicly on the statements made in the email documents relating to the Applicant's suitability for employment with the University. I also accept that disclosure of the Applicant's name could enable a third party to search for and access information about the nature of Tribunal proceedings, the evidence filed and exhibits of documents tendered at the hearing. I also accept that the Applicant has expressed genuine concerns that this information could potentially be used by recruitment consultants (and I paraphrase) to screen out or blacklist the Applicant in relation to future employment opportunities and recruitment decisions. Nonetheless, it is not "necessary to make any factual findings as to the correctness of [the Applicant's] assertions" (Mr X [24]) but rather to find that the Applicant has genuine concerns that the relevant information could be used as a basis (and I paraphrase) for effectively 'backlisting' her from future employment within the University sector based on the comments in the emails. 2. Secondly, decisions published online can be searched by any member of the public, including potential employers, using keywords, including a party's name, type of case and date: LD at [23]. 3. Thirdly, that there will be minimal interference with the principle of open justice by removing the Applicant 's name from the decision given that the hearing was held in public and the Tribunal's decision will, as noted above, be published online and publicly available. In this connection, I note that the Appeal Panel in State of New South Wales (Justice Health) and anor v Dezfouli ('Dezfouli') [2008] NSWADTAP 69 referred to, with approval, the observation of the Administrative Appeals Tribunal (Cth) in Re VC and Australian Federal Police (1985) 8 ALD 587: 'the public interest in having information about the identity of an Applicant ... is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny'.
7. For all of these reasons, I am satisfied that it is 'desirable' to make an order that the Applicant be referred to in these reasons and in the proceedings generally by the pseudonym "EMC".

Raising additional grounds

1. At the hearing, and in further submissions in reply, the Applicant opposed the University relying on additional grounds to withhold the disclosure of the information in items 1, 2 and 7 of the Schedule. In its written submissions, the University submitted that in the event the Tribunal decided the conclusive presumption against disclosure did not apply to any of items 1, 2 and 7 on the basis that the communications within the documents were not protected by legal professional privilege, that there is nonetheless an overriding public interest against disclosure of those documents under clauses 1 (e], (f) and (g) of the table in s14 of the GIPA Act.
2. In support of its submission, the University relied on the Tribunal decision in AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police [2020] NSWCATAD 84 at [23] which cited and applied the reasoning in Public Service Association and Professional Officers Association, Amalgamated Union of NSW -v- Director General, Premier's Department [2002] NSWADT 277. In Public Service Association, which concerned an application under the (then) Freedom of Information Act 1989 (NSW), ("FOI Act") the Tribunal, after considering the decision of the Full Federal Court in Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 in relation to the Commonwealth Freedom of Information legislation, stated (at [57] and [59]) that: 57 Searle is also relevant in these proceedings in relation to the question whether this Tribunal ought consider grounds other than those relied upon by the original decision-maker. In that case, the Full Court held that the AAT was not limited to considering the grounds of exemption relied upon by the original decision-maker because, as it said (at 113) "the function of the Tribunal is to hear matters de novo and to reach a view itself, untrammelled by the view taken by the primary decision-maker." 59 The Applicant submits that the respondent ought be limited to arguing its case under cl.13(b) of Schedule 1. This argument cannot be made out. This case is on all fours with Searle. The Tribunal may consider other grounds of exemption. The only limitation on the Tribunal in this regard is that, pursuant to the rules of natural justice, it must allow the parties a fair opportunity to argue the application of other grounds.
3. In summary, the Applicant submitted that the University should not be permitted to rely on new grounds to withhold disclosure of the relevant information because: 1. Firstly, AIG followed the reasoning in Public Service which concerned an application under the FOI Act (now repealed) and not the GIPA Act. The FOI legislation is outdated and cases decided under that Act can be distinguished from cases decided under the GIPA Act. 2. Secondly, the Applicant is unrepresented and would be disadvantaged if the University was allowed to raise new grounds that had not been considered by the IPC as part of its external review of the original decision and the internal review decision. It is apparent from the written submissions that the Applicant has relied upon the reasoning in the IPC reports in relation to the current application. This submission raises the question of procedural fairness. The complaint of the Applicant is, as I understand it, that she was denied a reasonable opportunity to present her case at the Tribunal because she did not have the 'expert' opinion of the IPC (pursuant to an external review) on the new grounds raised by the University.
4. In relation to the first point, I disagree with the Applicant 's submissions. While Public Service concerned an application under the repealed FOI Act, I am satisfied that the principles explained by the Tribunal apply equally under the GIPA Act. As the Tribunal explained, applying the principles of the Full Federal Court in Searle, the Tribunal is required to make the correct and preferable decision on all the material before it at the time of the Tribunal review and is not constrained to have regard to only the material put before, or the grounds relied upon by, the original decision-maker provided the requirements of procedural fairness were met in the proceedings before the Tribunal itself.
5. The Tribunal's function to make the 'correct and preferable decision' has not changed under the GIPA Act: s63(1)&(2) of the ADR Act; O'Grady v Sutherland Shine Council [2020] NSWCATAD 50 at [17]; Danis v Commissioner of Police [2021] NSWCATAP 23, ("Danis Appeal") at [37]-[38]; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [138]. In making a determination of what is the correct and preferable decision on administrative review under s100(1) of the GIPA Act, the Tribunal can take into account any consideration which could have been taken into account by the University in the reviewable decision under the GIPA Act, even those matters or considerations that were not taken into account by the original decision maker. That is subject, of course, to the requirement that the Applicant is afforded procedural fairness before the Tribunal itself.
6. Accordingly, the reasoning in both Public Service and Searle cannot be distinguished from the current matter and should be followed. I am fortified in that conclusion by the fact that Public Service has been considered and applied by the Tribunal in the context of applications under the GIPA Act in a number of decisions: Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 183 at [31]; Walker v NSW Department of Premier and Cabinet [2018] NSWCATAD 178 at [15]; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]; Fisher v Commissioner of Police [2021] NSWCATAD 44 at [101]. Veall at [8].
7. As to the Applicant being unrepresented and the question of procedural fairness, I accept the University's submission that the Applicant was provided with a copy of the University's submissions and evidence in support of the new grounds (at the time it filed its submissions on 24 September 2020) well in advance of the hearing and has been given a fair and reasonable opportunity to put on evidence and make submissions in opposition to those new grounds. In addition, the Applicant was also given the opportunity to file further written submissions after the hearing (which she did). It is well established that procedural fairness requires that a party be made aware of the case against them, and given a fair opportunity to meet that case with evidence and/or submissions. In my view, that requirement was met in this case. To the extent the Applicant submitted that she was entitled, as an unrepresented litigant, as a matter of procedural fairness in the context of a GIPA Act application and in the circumstances of this case, to have the new grounds nominated by the University considered by the IPC before they can be put to and considered by the Tribunal, I do not agree. The parties did not take me to any authorities that have considered this proposition, and there is nothing in the text or policy of the GIPA Act that would require this limitation. In any event, the Applicant did have the benefit of the IPC's summary of principles and reasoning on the same public interest considerations under clause 1(e), (f) and (g) in relation to items 4, 5 and 6 of the Schedule and having regard to the various matters to which I have referred above, I do not consider the Applicant has been denied procedural fairness in relation to these additional grounds.
8. Accordingly, the Tribunal will consider whether the additional public interest considerations against disclosure nominated by the University in clauses 1(e), (f) and (g) of the Table apply to the documents in items 1 ,2 and 7 of the Schedule, to the extent that the conclusive presumption against disclosure of those items does not apply.

The University's Evidence

1. The University read and relied on the affidavit of Ashley Anderson Fry sworn on 23 September 2020. Mr Fry also gave oral evidence at the Hearing and was cross-examined by the Applicant. Mr Fry told the Tribunal that his evidence is based on his review of the documents held by the University. Mr Fry is an Acting Senior Solicitor employed within the University's Office of General Counsel ("OGC") and is responsible for providing legal advice to the Vice Chancellor, senior executives and other officers of the University. He has been acting in that position since 4 May 2020 and has been a solicitor with the University since 16 March 2015. Prior to his appointment to the University, he was employed as a solicitor at FCB Workplace Law. He holds an unrestricted practising as a solicitor in NSW. He states that Mr Dominic Stewart, who has authored and received a number of documents from University staff (and the Applicant) in relation to the Applicant 's complaint and GIPA Act application, is employed as a Senior Solicitor within the OGC, holds a current practising certificate and reports directly to General Counsel. He states that Mr Stewart is on extended leave and is not available to give evidence in these proceedings.
2. Mr Fry describes the structure of the OGC. He states that all solicitors employed within OGC report to the General Counsel (Mr Richard Fisher AM), who in turn has an 'administrative reporting line' to the Vice Chancellor. The Vice Chancellor does not supervise the legal advice and services provided by the OGC. All employed lawyers within the OGC hold a current practising certificate and are officers of the court who must comply with the legal and ethical professional standards of conduct required of legal practitioners. Mr Fry stated a core aspect of those standards is an obligation to provide independent, honest and professional legal advice to the University.
3. Mr Fry then states that all legal files held by the OGC are held in a secure environment and that only legal officers and administrative staff within the OGC have access to the electronic and physical files. He states that the OGC is not co-located with any other professional service provider or academic faculty within the University.
4. Next, Mr Fry describes the background to these proceedings (which is summarised above under the heading background). He then provides a brief description of two previous access applications made by the Applicant. In response to the first application (made on 26 September 2018), the University released a number of emails between Ms Jodi Dickson and the Recruitment consultant (Ms Jenna Flamsteed) in relation to the Applicant 's job application. In response to a second access application dated 21 January 2019, the University provided some additional documents to the Applicant on 12 March 2019 and, following an external review by the IPC, released two additional documents on 9 May 2019.
5. Next, Mr Fry addresses the University's claim that the emails in items 1, 2 and 7 of the Schedule of documents contain either a request for legal advice or the resulting legal advice. He states that both the requests and the legal advice given were provided for the dominant purpose of the OGC or its external lawyers, providing legal advice to the University or in contemplation of litigation regarding the Applicant's complaints. He states that, based on his experience as an in-house lawyer and his review of the documents on the University file, the emails in items 1, 2 and 7 are protected by legal professional privilege.
6. Next, Mr Fry deals with the content of the documents in items 3, 4, 5 and 6. In relation to item 3, he states that the email records personal information of third parties and that one of them has objected to the release of the email. He then states that items 4-6 contain information provided by staff in confidence regarding the Applicant 's complaint about senior staff to the ICAC. I will discuss his evidence on these matters below.
7. Under cross-examination by the Applicant, Mr Fry acknowledged that as an employee of the University he owed a duty of loyalty and fidelity to the University; disagreed that there was a conflict of interest between his duty as a legal practitioner and his obligations to the University as an employee; and rejected the proposition that he subordinated his duty to provide independent advice as a legal practitioner to his obligation of loyalty to the University as an employee. Mr Fry then confirmed his evidence that it is essential that the consultations and communications with staff concerning a request for information from an external agency, such as the ICAC, be kept confidential. He further gave evidence that disclosure of the emails from staff in connection with an ICAC request would prejudice the deliberative and consultation processes adopted by the University in response to requests from external agencies, including the ICAC, undermine staff confidence in that process and inhibit and discourage staff from co-operating in relation to future requests.

The Applicant's case

1. While the Applicant did not give a statement or oral evidence in a formal sense, she made, as I have already noted above, oral and written submissions and relied on the IPC Reports to the extent they supported her access application. In her submissions, the Applicant submitted that disclosure of the withheld documents would: firstly, establish official misconduct by senior officers in the exercise of the University's human resources functions in relation to the recruitment process for the Senior Workplace Advisor role; secondly, establish misconduct by senior officers of the University in investigating and responding the Applicant 's written complaints concerning the recruitment process; thirdly, demonstrate that nominated senior officers of the University had failed to exercise their functions under the GIPA Act in good faith by deliberately withholding or concealing documents that responded to the access application including by making an improper claim for legal professional privilege in relation to some of the withheld documents. The Applicant further submitted that disclosure of the withheld documents could reasonably be expected to show that the University has an entrenched culture of non-disclosure and of withholding information that should be disclosed under the GIPA Act.
2. In support of these submissions, the Applicant referred to and relied on a number of specific emails written or received by senior University staff, annexed to Mr Fry's affidavit. In circumstances where the evidence about the contents of most of the emails is not relevant to the issues to be resolved in these proceedings and in any event is uncontradicted, (because they annexed to Mr Fry's affidavit) it is unnecessary to set that evidence out in any detail in these reasons. However, it is appropriate, in my view, to mention the substance of the following emails which are central to and underpin the Applicant 's submissions on para [e) of the Note in s12(2), s112 and clause 5 of Schedule 1 of the GIPA Act.
3. Firstly, an email dated 7 August 2018 from Ms Jenna Flamsteed, an external recruitment consultant engaged by the University to Ms Jodi Dickson (Director, Workplace Relations at the University) in relation to the Senior Workplace Relations role applied for by the Applicant. The email is annexed to Mr Fry's affidavit as AAF5 (at page 12) and is in the following terms: Please see attached for the CV of [the Applicant]. She definitely comes with my recommendation and I think she could be a good option for the change role. Please let me know if we can schedule and interview.
4. Secondly, an email dated 7 August 2018 from Ms Dickson responding to Ms Flamsteed's email regarding the Applicant 's job application. The email is annexed to Mr Fry's affidavit as AAF5 (at page 11) and is in the following terms: [the Applicant] is known to me. [the Applicant] is not a fit for my team and I will not consider her for any type of employment.
5. Thirdly, an email dated 7 August 2018 from Mr Frank Strbik (Associate Director, Workplace Relations) to Ms Flamsteed, which is annexed to Mr Fry's affidavit as AAP4 (at page 15), in the following terms: I mentioned this person to you before at our previous meeting. She is not suitable for any role here.
6. Fourthly, an email dated 22 August 2018 from Ms Dickson copied to Mr Dominic Stewart, (a Senior Solicitor employed by the University) and Mr Strbik (annexure AAF5 at page 8 of Mr Fry's affidavit)) in the following terms: "I just wanted to give some feedback on this. I am not happy at all about this. Frank and I made it clear at the meeting had with Jenna and Diana for which you were present that we were not interested in seeing this candidate. Much to my surprise a week later Jenna send me through her application with a ringing endorsement. Both Frank and I then responded again being quite open with Jenna about why we did not want to see her. Now as you can (and this is no surprise to me given my knowledge of the candidate) … we are at threat of a GIPA application and if she gets one I am personally going to be very exposed because of what I said in the email … I am copying in Dominic on this so that this email may be covered under privilege if this gets GIPAD. Dom I might need some advice on how to try and stop her getting access. Not happy at all."
7. Fifthly, an email dated 22 August 2018 from Mr Stewart to Ms Dickson (annexure AAF5 at page 10 of Mr Fry's affidavit) as follows: Agreed, it does not look too bad. We may be able to seek an exemption from GIPA on the suitability for public sector employment ground, but let's see what happens. We can't stop an application being made!
8. Mr Stewart is responding to an email from Ms Dickson of the same date in which (at annexure AAF5, page 10) she says: "Just to round out my last rant of an email this is what I sent to the recruiter. Actually its not as bad as I thought".
9. Sixthly, an email dated 22 August 2018 from Ms Flamsteed to Ms Dickson (annexed at AAF5, page 9) as follows: Can we please catch up on [Applicant ]? She is insisting on feedback on her application, see below. [Extract of an email from the Applicant to Ms Flamsteed included in the email]: Can you please contact them and get me some feedback? If the university declines to provide feedback, I can put in a Government Information (Public Access) Act 2009 (GIPA Act) application. However, I would prefer to not to have to take such a formal approach. I have pushed back and said her CV simply wasn't reviewed because you had already identified preferred candidates and as such no feedback is available, but she is insistent.
10. Seventh, an email dated 22 August 2018 from Ms Dickson responding to Ms Flamsteed's email (annexure AAF4, page 22) as follows: The feedback I have for [the Applicant ] is that compared to other candidates she does not appear to have the fit in terms of complaint management, and working with people managers that we require, and that by the time we received her application we had already settled on appropriate candidate and did not wish to see any further Applicant s.
11. Eight, an email dated 23 October 2018 from Mr Tim Robinson (Manager of the University's Archives and Records Management Services) to Mr Stewart and Ms Dickson which attaches a copy of documents which were released to the Applicant in response to the earlier GIPA Act access applications, (annexure AAF7, page 28).
12. Ninth, Ms Dickson's' email of 23 October 2018 to Mr Stewart and Mr Strbik (annexure AAF7, page 28) as follows: Excellent - can't wait to get the follow up call from [the Applicant]. (Emoji face).
13. Tenth, an email from Mr Strbik to Ms Dickson of 30 January 2019 as follows: Is this the second GIPA by [the Applicant]?
14. Eleven, Ms Dickson email response to Mr Strbik of 30 January 2019 as follows: It sure is. Do you have the email with her CV on it?

Conclusive presumption against disclosure: Legal professional privilege.

1. The University submitted that there was a conclusive presumption against disclosure of the information in items 1, 2 and 7 of the Schedule of Documents on the basis that the information falls within client legal privilege because they were prepared for the dominant purpose of the University's lawyers providing legal advice. Clause 5 of Schedule 1 to the GIPA Act provides for a conclusive presumption against disclosure if the information would be privileged from production in legal proceedings on the ground of legal professional privilege, unless the privilege has been waived. In these reasons, legal advice privilege, and legal professional privilege shall be referred to as "privilege" or "LPP".
2. As the Tribunal stated in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31]: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information."

Legal professional privilege - applicable principles.

1. In Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286 at [85]-[86], the Appeal Panel observed that: [85] Legal professional privilege is a long-standing rule of law. At common law, the privilege protects confidential communications between legal practitioners and their clients from disclosure under compulsion of a court or statute. The privilege protects two kinds of confidential communication between a client and his or her lawyer. These are confidential communications that are made for the dominant purpose of seeking or being provided with legal advice (advice privilege) and confidential communications that are made for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings. [86] Sections 118 and 119 of the Evidence Act 1975 (NSW) are a reflection of the common law doctrine of legal professional privilege. However, the terminology that is used in these sections is "client legal privilege", which is an appropriate description as the privilege, or right is that of the client and not the lawyer. In this case, the right to make a claim for privilege was that of the respondent, who bore the onus of establishing that the information for which it sought to make that claim was a confidential communication made with its lawyers for the dominant purpose of seeking or for the dominant purpose of existing or reasonably contemplated legal or quasi-legal proceedings and that privilege had not been waived.
2. In NuCoal Resources Ltd v Department of Premier and Cabinet [2017] NSWCATAD 245, Senior Member Ransome said at [15]: [15] The weight of authority is that privilege under the GIPA Act refers to the concept of client legal privilege as defined in the Evidence Act 1995: Larsson v Office of Environment and Heritage [2014] NSWCATD 136 at [25]; Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 at [61]; Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [27]; Hargreaves v University of New England [2013] NSWADT 233 at [19] and Saggers v Environment Protection Authority [2014] NSWCATAD 37 at [26].
3. However, as the Appeal Panel noted recently in ECN v Commissioner of Police [2020] NSWCATAP 267 (at [42]): The position was questioned on appeal in Transport for NSW v Robinson [2018] NSWCA TAP 123, however, ultimately, the Appeal Panel determined that it was not necessary to determine whether the application of cl. 5 is by reference to the common law or Evidence Act for the purpose of resolving the appeal (at (43]).
4. Nonetheless the Tribunal has also accepted that, for the purposes of proceedings under the GIPA Act, the principles under the Evidence Act are effectively the same as those that apply under the common law: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43].
5. In NuCoal, Senior Member Ransome stated at [16]-[17] that: [16] The essential elements of client legal privilege as set out in sections 118 and 119 of the Evidence Act are: ▪ the existence of a client and lawyer relationship; ▪ the confidential nature of the communication or document; and ▪ the communication or document was brought into existence for the dominant purpose of either, (a) enabling the client to obtain, or the lawyer to give, legal advice or provide legal services, or, (b) for use in existing or anticipated litigation. [17] Section 117 of the Evidence Act, which defines "client" to include an employer of a lawyer if the employer is a State or a body established by a law of a State, confirms that in-house lawyers and their internal client may be subject to a claim of client legal privilege. The provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 (see, for example, Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 and Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218). It is important to note that in-house lawyers must possess the requisite independence in respect of the advice being given: Seven Network Ltd v News Ltd [2005] FCA 142.

Lawyer/ client relationship

1. In Jackson v University of New South Wales [2019] NSWCATAD 224, Senior Member Higgins observed at [105]-[106] that: [105] Ultimately it is a question of fact as to whether a professional relationship exists between the client employer and the in-house lawyer and whether the in-house lawyer was consulted in his or her professional capacity: see and Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, at [35] to [41]. Where advice is requested or given out-side this professional relationship the information is not privileged. [106] Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only those communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to litigation.
2. In Rich v Harrington [2007] FCA 1987 at [46], Branson J stated that the requirement that in-house lawyers act independently will be satisfied if personal loyalties, duties or interests do not influence the professional legal advice given. (This approach was also adopted in Aquila Coal v Bowen Central Coal Pty Ltd [2013] QSC 82 at [9], citing Telstra Corporation Ltd v Minister for Communications Information Technology and the Arts (No 2) [2007] FCA 1445 at [35]). In Archer Capital v Sage Group (No 2) [2013] FCA 1098 (at [44], Wigney J went a step further and expressed the view, in obiter, that there is in fact no separate requirement of independence in the case of privilege claims regarding an employed or in-house lawyer: [44] … if it is established that the communication arises as a result of the employer consulting the employed solicitor in a professional capacity in relation to a professional matter that arises from the relationship of lawyer and client.

Dominant purpose

1. In P v Western NSW Local Health District [2016] NSWCATAD 109, Senior Member Molony stated at [48] that: [48] A '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].
2. In applying the dominant purpose test, Justice Young of the Federal Court stated in AWB Ltd v Cole [2006] FCA 571 at [106]: [106] Kenny J also said at 478 [30] (in Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247) that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree.

Legal Advice

1. In Holman v Warringah Council [2015] NSWCATAD 215, Senior Member Walker observed at [86] that: [86] The "legal advice" referred to in s 118 is a broad concept understood in a pragmatic sense. It is not confined to a lawyer's telling the client the law, while acting in a professional capacity; it must also include advice as to what should prudently and sensibly be done in the relevant legal context (ibid.) The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made, and its nature. If the document or information would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test laid down in Grant v Downs (1976) 135 CLR 674, 688. The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other: Southland Coal at [14]. A claim for privilege will not succeed if it appears that the document is a commercial document or was brought into existence in the ordinary course of business (ibid.).
2. Legal advice also extends to legal assistance, even if not legal advice in the literal sense; to legal business involving the kind of professional service for which lawyers are ordinarily employed by virtue of their expertise and experience: Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 683 at [120], referred to in AWB at [96].
3. Where information is passed between lawyer and client as part of a continuum aimed at keeping both informed so that advice may be sought and given as required, privilege may attach: Balabel v Air India 1988] Ch 317, 330; Commissioner of Taxation v Pratt Holdings Pty Ltd [2004] FCAFC 122 at [87]; DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 at [38].

Proof of purpose

1. While the purpose of a communication must be determined objectively, evidence of subjective purpose is a relevant consideration although not necessarily conclusive: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 at [172], per Callinan J; AWB at [44(2)]. In Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796, Beach J observed at [31]-[32] that: [31] Fourth, the relevant purpose may be either that of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. The circumstances will dictate the focus. [32] Fifth, the purpose is to be objectively ascertained. Evidence of the subjective intention of the author or person requesting the creation of the communication (document) is significant but not conclusive. Purpose can also be determined from the content of the document understood in its full context. Indeed, the latter analysis can carry greater weight, particularly over generalised hearsay or even compounded hearsay evidence from a person other than the author or person requesting the creation of the communication (document).
2. In Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495, Middelton J observed at [15]-[17] that: [15] In many cases it will be impractical to expect that the author or originator of every document should swear an affidavit in support of a privilege claim: see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2007] FCA 933 at [16]. [16] As Jessup J held in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd [2013] FCA 998 ('Asahi Holdings') at [38]: [38] The say-so of the maker of the communication will not be conclusive and, in the usual run of cases, will not even be necessary. Purpose is to be determined from the content of the document understood in its full context. The question relates to the purpose of the communication rather than to the immediate thinking of the maker of the communication at the relevant time. [17] Evidence based on information and belief can be given by a party's solicitor as to purpose of a document's creation, notwithstanding that the solicitor did not create the document, provided that he or she specifies the source of that information and belief: see Hoy Mobile at [16]. [18] In Asahi Holdings, Jessup J held at [39] that evidence by a party's solicitor that a document was made for the dominant purpose of giving or receiving legal advice is evidence of: [39] an objective professional conclusion based on his or her reading of the document and understanding of the context from instructions given by the client, and from his or her familiarity with the case generally (a conclusion which may, in a case in which the documents are voluminous, necessarily involve also the conclusions of other practitioners sharing the relevant workload).
3. In Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204 at [142], the Full Court of the Federal Court of Australia said that the purpose of communications can be shown in a number of ways: by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence; by evidence as to the purpose of the person who made the communication or authored the document, or by reference to the nature of the document; or from the content of the document understood in its full context.
4. In AIN v Medical Council (NSW) [2015] NSWCATAP 241, the Appeal Panel emphasised the importance of agencies producing sufficient evidence to support a claim of privilege, especially with respect to communications of in-house lawyers.

Does the Privilege extend to the email chains and copy documents?

1. If the dominant purpose of the communication being the lead email was the obtaining of legal advice from a lawyer, then the email chain may also be privileged because that email chain is, in effect, a copy of communications provided to the lawyer for the dominant purpose of obtaining legal advice. The forwarding of a chain of emails might constitute or be treated as "material prepared for submission to the legal adviser" or "components" of the privileged communication being the lead email: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, at 571; AWB at [102]. As observed in Friday v Minister for Primary Industry and Resources [2020] FCA 984 at [27]: [27] Privilege extends to a copy of a non-privileged document where the dominant purpose for bringing the copy into existence was to obtain legal advice: Propend 571 as modified by the dominant purpose test in Esso. Although this principle applies to documents, it should be recognised that the privilege protects communications of which the copy documents might form a component or from which the nature and content of a privileged communication might be inferred. If a client makes a copy of a non-privileged communication or document and sends it to a lawyer without a dominant purpose of obtaining legal advice (or for confidential use in litigation), the copy would not be privileged. The Propend principle also applies to a document copied by a lawyer for the dominant purpose of giving legal advice: Kenquist Nominees [14].

Inspection of privileged documents

1. The Tribunal (and a Court) has power to inspect and examine documents in respect of which a claim for privilege has been made: Grant v Downs [1976] HCA 63; Howell v Macquarie University [2008] NSWCA 26 at [72]. As the Federal Court explained in Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 7) [2012] FCA 1185 at [18]: [18] The Court has power to examine documents over which the privilege is claimed and should not be hesitant to exercise it where there is a disputed claim. The purpose of inspection is to determine whether on its face the nature and content of the document supports the claim for legal professional privilege …": AWB Limited v Honourable Terrance Rhoderic Hudson Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 (AWB) at [44].
2. This approach has been adopted by the Tribunal in a number of decisions: Barrett v Department of Planning, Industry and Environment [2020] NSWCATAD 196 at [23]; ECN v Commissioner of Police [2020] NSWCATAD 153 at [101]; McGuirk v Director-General, Attorney General's Department [2006] NSWADT 265 at [45]; Franks v Warringah Council [2006] NSWADT 124 at [19]; Saggers v Director General, Department of Premier & Cabinet Ministerial & Parliamentary Services [2008] NSWADT 164 at [18].
3. While the Tribunal has the power to examine the documents, it is generally not enough for a party to merely assert the existence of the privilege, deliver the documents to the Tribunal and request it to analyse and determine whether there is a proper basis for the claim: Schreuder v Murray (No 2) [2009] WASCA 145 at [62]; Barnes v Commissioner of Taxation [2007] FCAFC 88 at [18] and Westgate Finance v May [2012] NSWSC 806 at [33]. Nonetheless, in some circumstances the nature and content of the privileged communication may be inferred from the documents: Propend at 569; Barnes at [19]-[20]; Howell at [2] and DSE at [29]. As the Federal Court stated in AWB at [44], the Tribunal is not confined to the express statements made in support of the claim for privilege and is entitled to draw inferences by reference to the nature of the disputed documents supported by argument or submissions: see also Hall at [15]-[17].

Improper or unlawful purpose

1. LPP will not apply where the relevant communication was tainted by an improper or unlawful purpose. In Kreutzer, Senior Member Walker observed at [47] that: [47] No privilege will arise in respect of a communication made for a purpose that is improper, whether or not the legal adviser knows of that purpose. The improper purpose principle covers all forms of fraud and dishonesty, including trickery and sham contrivances. For that exception to apply, there must be more than a mere assertion or allegation of fraud or impropriety: AWB Ltd v Cole at [217]. There must be something to "give colour to the charge" and some prima facie evidence that it has some foundation in fact, but the purpose need not be proved on the balance of probabilities: ibid.
2. The test of improper purpose in relation to a LPP claim is largely the same under s125 of the Evidence Act and the common law: Kang v Kwan [2001] NSWSC 698 at [4]-[7], and applied by the Tribunal in Kreutzer at [95]-[98]. Referring to the High Court decision in Propend at 587, the NSW Supreme Court noted in Kang at [3], para [6] that: 6. Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other improper purpose, there must be "something to give colour to the charge", some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J in Propend at 587.

Submissions and Findings on LPP

1. The question for me on the present application is whether the presumed conclusive overriding public interest against disclosure of the information in the emails listed in the Schedule as items 1, 2 and 7 applies on the basis that the documents are protected by privilege. Both the University and the IPC have applied the client legal privilege test in the Evidence Act to the information in the emails. In light of those submissions and the principles outlined in the authorities above, I have adopted the statutory test for LPP in these proceedings. As noted above, the University bears the onus of establishing the privilege claims.
2. There are three matters that the University must establish for the relevant emails to be protected by LPP.
3. Firstly, the University must establish the existence of a client/ lawyer relationship in relation to the communications; and that the lawyers were acting with sufficient independence;
4. Secondly, the University must establish that the relevant communications are confidential in nature; and
5. Thirdly, the University must establish that the relevant communications were created, prepared or brought into existence for the dominant purpose of requesting, receiving or providing legal advice.

Challenges to Mr Fry's evidence

1. Before turning to the three questions above, I will address the Applicant 's challenges to Mr Fry's evidence and, as I understand it, her submission why the Tribunal should reject or attach minimal weight to his evidence. The Applicant submitted that: Firstly, his evidence is (and I paraphrase) indirect evidence because he is not the author of the relevant emails in dispute; he did not request the 'advice' recorded in the emails and he was not a party to the emails. In other words, his evidence should be given little weight as it is not direct evidence given by the person whose purpose is in question. It was not clear to me whether the Applicant was also submitting that Mr Fry's evidence should be rejected or discounted because it was inadmissible hearsay - but in any event I will consider that point briefly below. Secondly, that the University's claims to privilege are formulaic and do no more than state the fact that the email communications were confidential and made for the dominant purpose of giving or obtaining legal advice and do not engage with the content of the emails. Thirdly, that his evidence does not comply with the requirements in NCAT Procedural Direction 3 as an 'expert witness.' Fourthly, and separately, he does not have relevant legal experience or expertise in advising on administrative law or criminal or enforcement matters and is therefore not qualified to give evidence about when a claim for privilege can validly be made in those kinds of matters.
2. In response, the University submitted that: Firstly, Mr Stewart was on long leave and unavailable to give evidence; Secondly, Mr Fry is not an expert witness - Procedural Direction 3 does not apply to GIPA Act proceedings unless the Tribunal directs otherwise, and no such direction was made in these proceedings. Thirdly, that the University was entitled to rely on Mr Fry's evidence, as an in-house lawyer employed by the University. It did not submit that Mr Fry provides direct evidence of the circumstances surrounding the creation of each of the documents the subject of the claim for privilege. It submitted that it is clear from Mr Fry's affidavit and oral evidence at the hearing, that his evidence is based on his review of the emails/ documents identified as the subject of a privilege claim by the University, applying his professional experience as an in-house lawyer with the University. He sets out what he believes to be the characteristics of each document, the circumstances in which each document was created, and the purpose for which the document was created. Mr Fry does, however, give direct evidence about the structure and usual practices adopted within the OGC, including the lawyer/ client relationship and the confidentiality that exists in giving legal advice.
3. My findings on the Applicant 's submissions follow. Firstly, the Tribunal is entitled to receive evidence which is secondary in nature; that is evidence from a person who is not the author of the document, who could have given first hand evidence as to the circumstances and purposes for which a communication was created; Asahi Holdings at [32]; Hall at [16]; Perazzoli at [142]; Barnes at [19]-[20]. The rules of evidence do not apply to proceedings before the Tribunal concerning GIPA Act administrative reviews: the relevant question is what degree of weight should be given to the secondary evidence. Applying the reasoning in Hall at [215]-[217], a client's lawyer may give evidence on information and belief in relation to a LPP claim. Secondly, and relatedly, hearsay evidence can be relied upon in a privilege dispute under the Evidence Act: Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305, at [33]-[34]; Re Global Advanced Metals Pty Ltd [2019] NSWSC 1545 at [16]-[18]; Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [36]-[37]. Thirdly, I accept the University's submissions that Mr Fry is not an expert witness, he is not providing his expert opinion on an aspect of the case - he is an in-house lawyer in the employ of the University whose evidence is directed to the purpose and context in which the privileged emails were prepared. Fourthly; I do not accept the Applicant 's submission that Mr Fry has insufficient experience or expertise as a lawyer to give the relevant evidence.
4. That takes me to Mr Fry's evidence. I am satisfied that his affidavit and oral evidence adequately sets out the primary facts as to: (a) the context and circumstances upon which the University's claim for privilege is based; (b) the lawyer/ client relationship that exist between legal officers employed in the OGC on the one hand and the University administration on the other hand, and, (c) the confidential nature of communications between OGC and its internal client in relation to legal advice that is requested or provided. However, in my view, Mr Fry's evidence on the purpose of each communication, or put slightly differently, the reason or reasons why each email document was brought into existence, is of limited assistance to the Tribunal in determining whether the dominant purpose was a legal purpose. That is because his evidence on purpose is expressed in general and conclusionary terms. While he describes each document the subject of the LPP claim, he does not, in my view, sufficiently define or particularise the privilege claims in relation to each document beyond stating the fact that the email communications were confidential and were made for the dominant purpose of giving or obtaining legal advice, or in contemplation of litigation regarding the Applicant's complaints; Barnes at [18]. However, be that as it may, the authorities establish that: (a) the University can discharge the onus to justify its claim for privilege by reference to the nature of the documents, supported by argument or submissions; AWB at [44]; Hall at [15]-[17]; Perazzoli at [142]; and, (b) in circumstances where the evidence of the witness called to prove the existence of privilege falls short, that the Tribunal can exercise its discretion to inspect the documents to form a view about whether the documents are privileged based on the documents themselves; Barnes at [19]-[20]. In that connection, I have had the opportunity to examine, read and consider each of the emails in issue - including their attachments. I am able to infer and discern the following matters from those emails: (a) that those communications reveal, on their face, the circumstances and context in which each communication occurred, (b) whether the reason or reasons that each email document was brought into existence was a predominately legal purpose; and, relatedly, (c) whether the documents tend to disclose the nature and content of confidential legal advice provided or the nature and content of the privileged communication may be inferred from the emails. I will return to the evidence on purpose of the disputed emails below.

Was there a lawyer/ client relationship?

1. As to the first matter, the provision of advice by in-house lawyers in a government department has been held to be within the terms of s 117 of the Evidence Act where it is established that the in-house lawyers possess the requisite independence in respect of the advice being given: Seven Network Ltd v News Ltd [2005] FCA 142; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95; Gauci v Commission for Fair Trading NSW [2015] NSWCATAD 218).
2. In relation to this issue, the Applicant submitted that neither Mr Fry or Mr Stewart exercised sufficient independence in their role as in-house lawyers with the University and further that their obligations to act independently as legal practitioners was in conflict with their obligations of loyalty as employees of the university. The Applicant also submitted that the email chains of 22 August 2018 between Ms Dickson and Mr Stewart, set out at [69]-[70] above, demonstrate that Mr Stewart did not act with the requisite degree of independence but rather was acting in concert with, or under direction from Ms Dickson to conceal information about complaints against, and cover up the alleged wrongdoing by, Ms Dickson. The University submitted that there was no factual basis to the Applicant 's repeated assertions of misconduct by Mr Stewart or, that the emails he prepared were created to further or facilitate the alleged cover-up. In cross-examination, Mr Fry refuted the proposition that he (and by implication, Mr Stewart) subordinated his obligations as a legal practitioner to his duty of loyalty to his employer.
3. Based on Mr Fry's evidence I am satisfied that both he, and relevantly, Mr Stewart (the author of some of the relevant emails) are employed by the University, in the OGC, an independent professional service unit of the university, as legal practitioners who are entitled to practise law in NSW. I accept his evidence that lawyers employed within the OGC report to the general counsel, who in turn reports to the vice-chancellor, but that reporting line is administrative in nature and does not involve supervision of the legal work performed by the OGC. I also accept that lawyers employed within the OGC provide legal advice to the University and its officers on a broad range of matters including Code of Conduct Complaints and GIPA Act access applications. I also accept Mr Fry's evidence that the OGC has retained Ms Sarah Heesom and Ms Kerry Rehn, both of whom are legal practitioners with a relevant practising certificate, as consultant solicitors to provide advice in relation to various matters involving the Applicant.
4. I am satisfied, based on Mr Fry's evidence, that the OGC reflects a structure to establish the necessary professional relationship between a legal practitioner and their internal clients. I also accept that, to the extent I am satisfied that each of the relevant emails in issue in these proceedings is privileged (which I will discuss below) those communications were provided on the basis of a lawyer/ client relationship, and were made or received by them in their professional capacity as lawyers.

Independence

1. As I mentioned above, the University also bears the onus of showing that in-house lawyers employed within the OGC have the necessary degree of independence required for their communications to be treated as privileged. In this connection, the Applicant submitted that the requisite independence did not exist because the lawyers owed duties of loyalty and fidelity as employees of the University and further submitted that both Mr Fry and Mr Stewart subordinated their duties as legal practitioners to their duties of fidelity as employees of the University. The Applicant put this proposition to Mr Fry during cross-examination, which he rejected.
2. Based on the material before me, I do not accept there is any evidence that Mr Fry or Mr Stewart's independence was compromised or that their obligations of loyalty as employees was in necessary conflict with their duties as legal practitioners. There was nothing in my view, on the face of the documents relied on by the Applicant, in Mr Fry's evidence under cross-examination or, having read the withheld documents, in any of the emails in issue in these proceedings, that could reasonably be capable of supporting a conclusion or inference that Fry's (or Mr Stewart, for that matter) personal loyalties, interests or duties as employees have influenced the professional legal advice they have given in the emails in issue. To similar effect, I am not satisfied that the particular email chains identified by the Applicant (as set out and discussed earlier in these reasons) shows (or even suggests) that Mr Stewart has subordinated his obligations as a legal practitioner to his duty of loyalty as a university employee. Nor is there any evidence, contrary to the Applicant 's repeated assertions, that Mr Stewart was acting in concert with or under the direction of Ms Dickson to conceal documents or (and I paraphrase) cover up any alleged misconduct by Ms Dickson or other university staff in relation to the recruitment process or code of conduct inquiry.
3. Accordingly, and consistent with the principles outlined above in Rich at [46], Aquila at [9] and Archer Capital at [73], the requirement for independence is met in this matter.

Are the email communications confidential?

1. Moving on to the second matter, it is necessary for the University to show that the emails were confidential communications if they are to be protected by LPP. Section 117 of the Evidence Act defines 'confidential communication' to mean a communication made in such circumstances that when it was made, the person who made it (or the person to whom it was made) was under an express or implied obligation not to disclose its contents. Whether a communication is confidential in nature, is a question of fact that can be determined on the evidence; Generate Group Pty Ltd v Sea-Tech Automation Pty Ltd [2017] FCA 1261 at [24].
2. Having considered the contents of the withheld emails, and having regard to the circumstances in which the emails were sent and received, as well as Mr Fry's evidence, I am persuaded that the relevant communications were received and sent in confidence. I have reached this view for the following reasons: 1. Firstly, many of the documents are marked 'privileged and confidential' and the emails from Mr Stewart include a warning at the foot of the document that the email and attachments may contain confidential or legally privileged information. This labelling supports an inference that the documents were confidential, although it does not necessarily establish that the contents of the email are subject to LPP: Seven Network at [6]. 2. Secondly, the emails containing the information for which privilege is claimed were stored in a secure environment within the OGC's office and access is restricted to legal and other staff within the OGC. This supports an inference that the documents were confidential. However, this does not necessarily mean LPP attaches to the emails in issue. 3. Thirdly, confidentiality can be inferred where the evidence shows that the communications were made between lawyer/ client: Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817.
3. To use the words of Senior Member Higgins in Jackson at [123], "the fact the emails were confidential does not necessarily mean the information within them is privileged." I will turn now to the question of dominant purpose.

Were the emails prepared for the dominant purpose of receiving or providing legal advice?

1. Moving on to the third matter, it is necessary for the University to show that each of the emails listed in the Schedule as items 1, 2 and 7 were prepared for the dominant purpose of receiving or providing legal advice.
2. In relation to Mr Fry's evidence, Mr Fry told the Tribunal, and I accept, that he formed the opinion that each of the email documents were confidential, and created for the dominant purpose of giving legal advice to the University on the Applicant 's complaints, the ICAC request and the Applicant's GIPA Act access applications. The University submitted, and I accept, that each of the opinions formed by Mr Fry amounted to his professional judgment based on his personal review of the documents concerned and understanding of the context from instructions given by the University, and from his familiarity with the matter generally.
3. For the reasons I have given above, I do not consider Mr Fry's evidence as to purpose to be particularly persuasive although I have taken his evidence into account. Nevertheless, the Tribunal is entitled to draw inferences and conclusions from the form and content of the documents themselves supported by argument or submissions to form a view about whether the documents are privileged: Pratt Holdings at [30]; AWB Ltd at [44], Barnes at [19]-[20]; Perazzoli at [142].

The Documents

1. Set out below are my findings on the University's claim for LPP in relation to each email. I have adopted the description of the emails set out at [31] of Mr Fry's affidavit. In addition to Mr Fry's evidence, the parties competing submissions and the IPC Reports, I have examined each of the emails in issue - including their attachments.

Items 1.1 and 1.7

1. The Tribunal was advised at the hearing that the University no longer claims privilege for the information contained in the emails in items 1.1 and 1.7 and that those documents have now been released to the Applicant.

Item 1.2

1. Item 1.2 is an email chain dated 4 June 2019 from Mr Stewart (from OGC) to Ms Haywood, a senior officer in the human resources department that deals with the Applicant 's complaint. It is identical to item 7.
2. The Applicant, adopting the IPC's analysis, submitted that this email communication was created for administrative purposes and sets out Mr Stewart's opinion on how to administratively respond to the Applicant's complaint and not for the dominant purpose of providing legal advice in relation to the complaint. Referring to the Tribunal decision in Jackson at [124], it was submitted that not all communications with an agency's lawyers will be for the dominant purpose of obtaining or giving legal advice and that the communication in item 1.2 was created to provide the university with guidance and administrative direction on how deal with the complaint.
3. As against this, the University submitted that the lead email from Mr Stewart sets out his advice on what the University should 'prudently and sensibly do' to respond to the Applicant 's complaint that alleges a breach of the University's code of conduct by senior employees.
4. Having inspected the lead email, I am satisfied that it is a privileged communication from Mr Stewart in his professional capacity as an in-house lawyer to one of the University's senior employees in connection with the Applicant 's complaint alleging a breach of the code of conduct by senior staff of the University. I am satisfied that the email was prepared for the dominant purpose of providing legal advice to the University on the question of whether there has been a breach of the code of conduct. To the extent that the email refers to matters outside the legal advice I am satisfied on balance that they are essentially contextual and that the email was prepared for the dominant purpose of providing advice and I therefore find that the whole of the email is privileged.
5. It is the lead email which is the relevant communication for present purposes. It discloses the nature and content of the legal advice Mr Stewart has provided. That is its dominant purpose The email which accompanies the lead email is to be treated in this instance as an attachment to that privileged communication, being, in effect, a copy of the relevant email made by the lawyer who authored the lead email for provision to the University with advice: Propend at 543-544 (per Gaudron J) and at 571-572 (per Gummow J); AWB at [102]. Accordingly, the attached email is also privileged.

Item 1.3

1. Document 1.3 is an email from Ms Kate Small, Deputy Chief of Staff in the Office of the Vice Chancellor, to Mr Stewart dated 12 June 2019. The lead email forwarded an email chain in relation to the alleged breach of conduct by university employees.
2. The Applicant, adopting the IPC report, and the reasoning in Jackson at [124], contended that the documents were created for the purpose of receiving administrative guidance and direction on how to handle the Applicant 's complaint and not for the dominant purpose of requesting legal advice.
3. Put against this, the University submitted that [NOT FOR PUBLICATION.]
4. From my examination of the lead email, it can be inferred that Ms Small was concerned to ensure that the University's handling of the Applicant 's code of conduct complaint was done correctly and lawfully and that the process would withstand a legal challenge. Based on all the material before me this is the context in which the email in question appears to have come into existence. Accordingly, I am satisfied from the contents and from the context within the lead email, that it was prepared for the dominant purpose of seeking legal advice in relation to conflict of interest considerations. The lead email is privileged. The lead email forwarded a chain comprising two emails which is to be treated as a copy of a document communicated by a client to his or her lawyer for the dominant purpose of obtaining advice. The copy documents are also privileged: Propend; and AWB at [102]. Accordingly, the lead email, and its two attachments, are privileged.

Item 1.4

1. Item 1.4 is an email from Mr Stewart dated 12 June 2019 responding to Ms Small's email referred to above in item 1.3 The lead email includes a copy of Ms Small's email request in item 1.3 and two other emails in relation to the code of conduct complaint.
2. The Applicant, referring to the IPC report, repeated the submission made in relation to item 1.3 that the dominant purpose of the communication was administrative in nature and does not contain any legal advice given by Mr Stewart to Ms Small.
3. Against this, the University submitted that the dominant purpose for Mr Stewart creating the lead email was to provide legal advice to the specific question raised in Ms Small's email (item 1.3). The University also relied on the reasoning in Propend in connection with the copy emails.
4. I am satisfied that the lead email discloses Mr Stewart's legal advice on the specific questions raised by Ms Small in item 1.3. That is its dominant purpose. While the attached emails predate the date of the lead email, they have been provided under cover of the lead email, which is the subject of legal advice privilege and accordingly are also privileged as relevant to the content of the lead email: Propend at 571; AWB at [102]. Accordingly, the email chain in item 1.4 is privileged.

Item 1.5

1. Item 1.5 is an email chain which comprises four emails. The lead email is from Ms Small to Mr Stewart dated 12 June 2019 in which she replies to Mr Stewart's advice recorded in his email in item 1.4. The lead email forwards a copy of the documents in item 1.4.
2. The arguments raised by the Applicant in relation to item 1.4 would apply to this email chain. The University, on the other hand, submitted that Ms Small's email reply is privileged because it discloses the content of the legal advice in item 1.4.
3. While the email is brief and contains some material that is strictly not legal advice, I am nonetheless satisfied that privilege will attach to the email chain because: firstly, the lead email would disclose by inference the nature and content of Mr Stewart's advice in item 1.4; and secondly, that the information in this email is part of a continuum of communications between a lawyer and their client aimed at keeping, in this case, Mr Stewart informed on matters relating to the advice he has given. The email chain forwarded with the lead email is a copy of item 1.4 and is privileged for the reasons already given. Accordingly, the lead email, and the emails within the chain, in item 1.5 are privileged.

Item 1.6

1. Item 1.6 is an email chain commencing with an email from Mr Stewart dated 13 June 2019 to Ms Haywood asking for an update on her handling of the Applicant's complaint against the two staff members. The lead email includes an email chain of the documents contained in item 1.2.
2. The Applicant, adopting the IPC analysis, contended that the lead email does not record or reveal any legal advice and is administrative in nature only. The University on the other hand, submitted that the lead email sent by Mr Stewart, in his professional capacity as an in-house lawyer within the OGC, was created for the dominant purpose of obtaining an update on his advice on the code of conduct investigation.
3. I have examined the email and am satisfied that, while the material is not strictly legal advice, it was quite clearly prepared for the dominant purpose of Mr Stewart providing further legal advice in relation to the Applicant 's code of conduct complaint. In addition, the lead email, in my opinion, discloses by inference the nature and content of the legal advice given by Mr Stewart in his email of 4 June 2019 contained in item 1.2 and item 7, which, for the reasons given above, is privileged. I am also satisfied that the email chain forwarded with the lead email is a copy of the material in item 1.2 and is privileged for the reasons already given. It follows, that the lead email, and the email chain, in item 1.6 is privileged.

Item 1.7

1. Item 1.7 is an email from Ms Haywood to Mr Stewart dated 14 June 2019 which forwards an email chain concerning the Applicant 's code of conduct complaint. The Applicant submitted the email was prepared for information and administrative purposes and not for the dominant purpose of putting the particular emails in the chain for legal advice by Mr Stewart. Against this, the University argued that the email chain was sent to Mr Stewart as part of the continuum aimed at keeping him informed so that further advice may be sought and given as required. As I understand it, the University also submitted that the email chain was copied for the dominant purpose of obtaining further legal advice.
2. I have read the email chain. [NOT FOR PUBLICATION]. Neither the lead email or the email in the chain contains a privileged communication, discloses any confidential legal advice or gives rise to an inference to that effect. I do not consider that the lead email has been prepared for the dominant purpose of requesting additional legal advice. In my view, it was provided to Mr Stewart for information purposes. It follows, that the email chain in item 1.7 is not privileged.

Item 1.8

1. The lead email in item 1.8 is an email dated 14 June 2019 from Ms Small to Mr Stewart requesting advice on any conflict-of-interest considerations concerning the Applicant 's code of conduct complaint against two senior staff. The email chain includes [NOT FOR PUBLICATION].
2. The Applicant repeats the submissions made in relation to the other emails in item 1 that the documents were prepared for administrative purposes and not for dominant purpose of obtaining legal advice. Put against this, the University submitted that the lead email was prepared by Ms Small for the dominant purpose of obtaining confidential legal advice on the conflict-of-interest concerns raised by the Applicant and that the dominant purpose of making the copy of the chain was to put particular emails in the chain to Mr Stewart for consideration and advice.
3. I am satisfied from the contents of the lead email and the context within which it was given that the document is a confidential communication from Ms Small for the dominant purpose of Mr Stewart providing legal advice to the University on the specific question raised in the email. I am also satisfied that the emails in the chain were copied for the dominant purpose of putting the relevant material before Mr Stewart for legal advice. The email chain is privileged: Propend at 571; AWB at [102]. Accordingly, the lead email and attached email chain are both privileged communications.

Item 1.9

1. The lead email in the chain in item 1.9 is from Mr Stewart to Ms Small dated 14 June 2019 which appears to respond to Ms Small's request for advice on the conflict-of-interest issues set out in her email in item 1.8 above. Mr Stewart also forwards other emails in the chain regarding this issue.
2. The University submitted that the entire email chain is privileged because it records and would disclose the substance of Mr Stewart's legal advice on the conflict of issue matters and would disclose other communications, even though they are not privileged communications themselves, that are relevant to his advice.
3. Although the email response is brief, I am satisfied that it was prepared for the dominant purpose of giving legal advice on the specific question asked by Ms Small in the email in item 1.8 and that the other emails in the chain were copied and forwarded for the dominant purpose of giving legal advice.

Item 1.10

1. Item 1.10 is an email from Ms Small to Mr Stewart dated 18 June 2019 requesting advice on the conflict of issues matters raised by the Applicant in connection with the code of conduct complaint. Included in the chain are other documents relating to the complaint.
2. The University submitted that the lead email was prepared for the dominant purpose of requesting legal advice [NOT FOR PUBLICATION.]
3. I am satisfied from the contents and context of the email communications that it was prepared for the dominant purpose of seeking legal advice on the specific questions asked. I am also satisfied that the emails in the chain were copied for the same purpose. The lead email and the emails in the chain in item 1.10 are therefore privileged.

Item 1.11

1. The lead email in item 1.11 dated 18 June 2019 from Mr Stewart responds to Ms Small's request for advice on the issues identified in the email referred to in item 1.10. Accompanying the email is the email chain contained in item 1.10.
2. I am satisfied that Mr Stewart's email was prepared for the dominant purpose of providing legal advice on the specific questions asked in Ms Small's email. The email chain was also copied for that purpose. The lead email and the chain are privileged.

Item 1.12

1. The lead email dated 18 June 2019 is from Ms Small responding to Mr Stewart's email advice in item 1.11. The email refers to the subject matter of Mr Stewart's advice in the heading and attaches a copy Mr Stewart's advice and the other documents forwarded by him in item 1.11 for the dominant purpose of giving advice. In my view, while the lead email is brief, it is privileged because it discloses the subject matter and nature of the legal advice received, and is part of the continuum of communications between the OGC and the Vice Chancellor's Office aimed at keeping both informed so that advice may be sought and given as required: Pratt [87]; DSE [38]. The email chain in item 1.12 is a reproduction of the privileged communications in 1.11 and is therefore privileged for the same reason.

Item 1.13

1. Item 1.13 comprises an email exchange between Mr Stewart and Ms Kerry Rehn, a consulting solicitor, dated 15 August 2019 where, as noted in Mr Fry's affidavit, Mr Stewart is requesting the assistance of Ms Rehn in managing and responding to the Applicant 's complaint to the ICAC.
2. The University submitted that the dominant purpose of Mr Stewart's email was for the University to be provided with legal advice relating to the Applicant's complaint to the ICAC and that Ms Rehn's email was created as a direct response to that request. The University submitted that [NOT FOR PUBLICATION].
3. I am satisfied from my examination of both emails that they are each a confidential communication between two lawyers prepared for the dominant purpose of requesting or providing legal advice in relation to the ICAC request. The content of each email is directed only to one matter: the provision of legal advice. Mr Stewart's email contains information provided for the purpose of legal advice and would disclose the nature of the advice requested. Both emails are privileged.

Item 2.1

1. The lead email in item 2.1 is an email dated 27May 2019 from Mr Robinson (Manager, Archives) to Ms Sarah Heesom, a consultant lawyer retained by the University in relation to the Applicant's third GIPA Act application. The email forwards a copy of an email chain relating to that access application.
2. The University submitted that the lead email contains updated information provided for the dominant purpose of receiving legal advice from Ms Heesom in relation to the GIPA Act application and, as I understand it, that the email chain was copied for that purpose. The IPC accepted in the second report that the email chain in item 2 appears to have been created for the dominant purpose of obtaining legal advice.
3. From my inspection of the email chain, I accept that, even though the documents contain material which is not strictly legal advice, they were clearly prepared for the purpose of obtaining legal advice and for no other evident purpose. The lead email and the email chain are both privileged.

Item 2.2

1. The lead email in item 2.2 is an email dated 29 April 2019 from Ms Heesom responding to an email from Mr Robinson of the same date concerning the Applicant 's GIPA Act application. The lead email attaches a copy of Mr Robinson's email, which is a copy of the email in item 2.3.
2. The lead email seeks clarification of matters referred to in item 2.3 and the communications within the email tend to disclose the nature of the legal advice that was being obtained. It was sent for that dominant purpose. It is privileged. The second email is a copy of document 2.3 and was sent for the dominant purpose of providing additional information to Ms Heesom for the purposes of obtaining legal advice. It is also privileged.

Item 2.3

1. Item 2.3 is the email dated 24 April 2019 from Mr Robinson to Ms Heesom referred to in the email chain in item 2.2. The email identifies the subject matter of the attachment. I am satisfied that both the email and attachment were prepared for the dominant purpose of providing additional material for consideration and legal advice by Ms Heesom on the GIPA Act application. Both documents are privileged.

Item 2.4

1. Item 2.4 is an email dated 29 April 2019 from Mr Robinson responding to Ms Heesom's email of 24 April 2019 which is the document referred to in item 2.3. It includes a copy of that email as well as an attachment. I am satisfied from the content of the email and attachment and from the context of the communications between the Mr Robinson and Ms Heesom as a consultant lawyer to the University, that the lead email was prepared and the chain and attachment copied for the dominant purpose of receiving legal advice in relation to the GIPA Act application. Accordingly, the lead email, the email chain and attachment are privileged.

Item 2.5

1. Item 2.5 is an email dated 22 May 2019 from Ms Heeson to Mr Robinson [NOT FOR PUBLICATION]. The lead email attaches a copy of the email request for advice from Mr Robinson dated 21 May 2019 and an attachment.
2. I have considered the contents of the email and attachment and accept the University's submission that they were made for the dominant purpose of the Ms Heesom providing legal advice to the University on the GIPA Act application. The lead email and attachments are therefore privileged.

Item 2.6

1. The lead email in item 2.6 is an email dated 20 May 2019 from Ms Heeson to Ms Gibson (an Information Access and Privacy Officer employed by the University) that responds to the questions raised by Ms Gibson in the email chain contained in item 2.7. The email chain is copied to the lead email.
2. I am satisfied that the lead email in item 2.6 was prepared in response to the questions asked in the email in item 2.7 from Ms Gibson for the dominant purpose of providing legal advice on the Applicant 's GIPA Act application. I am also satisfied that the documents in the email chain are copies of some but not all of the documents attached to item 2.7 and were sent for that dominant purpose. The lead email and attachments are therefore privileged.

Item 2.7

1. The lead email is the document referred to in item 2.6 from Ms Gibson to Ms Heeson asking for legal advice on the Applicant 's GIPA Act application. The lead email attaches an email chain of documents relating to Mr Gibson's request for advice. Based on the contents of the email chain and the context in which the documents were made and copied, I am satisfised that they were prepared for the dominant purpose of receiving that advice. I also consider that some of the communications within the email chain tend to disclose the nature and content of legal advice that was being obtained. Both the lead email and attachments are privileged.

Item 2.8

1. Item 2.8 consist of a lead email dated 30 April 2019 from Ms Heesom to Mr Robinson (Manager, Archives and Records). The lead email responds to Mr Robinson's request for legal advice on the Applicant 's GIPA application. The lead email attaches a copy of Mr Robinson's email request and other documents that relate to the relevant GIPA Act application. I am satisfied that the lead email and attachments contain communications from which the nature and substance of legal advice that has been provided and is requested can be inferred. The email chain is privileged.

Items 2.9 and 2.10

1. The emails in items 2.9 and 2.10 is an exchange between Mr Fry and Ms Heesom in relation to the Applicant 's GIPA Act application dated 2 September 2019. I am satisfied that both emails and attachments to Ms Heesom's email in item 2.10 contain communications from which the nature and substance of legal advice that has been provided and is requested can be inferred. Both emails and the attachments are privileged.

Item 2.11

1. Item 2.11 is an email from Mr Robinson to Ms Heesom dated 18 April 2019 which attaches other documents prepared or copied for the purpose of requesting legal advice.
2. I am satisfied that the email and attachments contain information and instructions provided to Ms Heesom for the purpose of legal advice and would tend to disclose the nature and content of such advice. On its face that is the dominant purpose for which the attachments were provided. Both the lead email and attachments are privileged.

Item 7

1. I am satisfied from my examination of the documents that the emails in items 1.2 and 7 are identical. For the reasons I have given above, I am satisfied that item 7 (and the accompanying email) is privileged.

Improper purpose

1. That takes me to the Applicant 's next argument that the University's claim for LPP was tainted by an improper purpose and accordingly, that no privilege can arise. As I understand it, (and I paraphrase) the Applicant submitted that the email communications between Mr Stewart and Ms Dickson (and others) - which are set out above at [63]-[75] -and are the subject of the LPP claim, were (deliberately) created to further or facilitate the covering up of Ms Dickson's (alleged) misconduct in relation to the recruitment process and to conceal from disclosure any information connected to the University's investigation into the Applicant 's complaint about Ms Dickson's alleged misconduct. In other words, that both Ms Dickson and Mr Stewart (deliberately) used LPP as a device to protect disclosure of the relevant information. As Senior Member Walker stated in Kreutzer at [54]: "Legal advice dealing with covering up past improper conduct or defeating that legitimate claim is not privileged." While neither party addressed the Tribunal on whether s125 of the Evidence Act or the common law applied to the Applicant 's claim that privilege has been displaced because of the alleged misconduct, it does not appear to me that there would be a different result in this matter under either test.
2. Returning to the evidence, I have already set out in some detail above at [63]-[75] the emails relied upon by the Applicant as proof of Mr Stewart's alleged misconduct, including the email chains between Mr Stewart and Ms Dickson. I will not repeat that evidence or my discussion (above) of those emails in any detail here. It is sufficient for me to find that there is nothing in those documents, the information in the withheld documents or any other material before the Tribunal that could reasonably be capable of supporting an inference or conclusion that Mr Stewart engaged in the serious misconduct alleged by the Applicant. Nor is there any rational basis on which I could conclude or infer that Mr Stewart, whether deliberately and intentionally, whether alone or in concert with Ms Dickson or otherwise, made an improper or unlawful claim for LPP so as to conceal information that may expose the University's (and in particular Ms Dickson's alleged) misconduct in the recruitment process and its management of the Applicant 's complaint, or to defeat or subvert the Applicant's access to that information. I have reached the same conclusion with respect to Ms Dickson. While the email copied to Mr Stewart on 22 August 2018 (set out above at [67] for 'advice' on "how to try and stop her getting access" to documents relating to the recruitment process under GIPA Act application was inelegant and, as drafted, possibly incautious, it does not establish, to the requisite standard, the improper purpose asserted by the Applicant.
3. In reaching this conclusion, I have applied the reasoning in Watson & Anor. v. McLernon & 26 Ors.Watson v. McLernon & 27 Ors. [2000] NSWSC 19 at [16]-[17] and in Kang v Kwan [2001] NSWSC 698, at [37] that a person, such as the Applicant in the present matter, who has not seen the 'privileged' documents, is not required to put forward material that is sufficient to demonstrate a prima facie case of improper purpose. Nonetheless, particularly where allegations of serious dishonesty and misconduct are alleged, there must be more than a mere assertion or allegation of impropriety: Propend at 556 and 576.
4. While the Applicant may hold the genuine belief that Mr Stewart has acted improperly and failed to discharge his role as a legal practitioner, the material filed in these proceedings, objectively assessed, does not support that belief. In my view, the Applicant 's concerns do not rise above the level of suspicion and assertion.
5. I will now briefly address two other matters which the Applicant said, as I understand it, supported the conclusion that the University has made an improper claim for LPP. These concerns overlap. Firstly, the Applicant submitted that the disclosure of items 1.1 and 1.7 to the Applicant shortly before the hearing, establishes that the University's LPP claim was not properly made, or at the very least, that it asserted a claim to privilege where there was no real basis to do so. Secondly, the Applicant contended that the University's claim for LPP was not a proper claim because the IPC, having reviewed the disputed documents, was not satisfied that the asserted claims were justified. The Applicant also alleged that underpinning the University's LPP claims, and indeed its decisions more broadly on the Applicant 's access application, was a systemic 'culture of secrecy and non-disclosure'.
6. These concerns can be dealt with in short order. For the reasons I have given above, I have concluded that all but one of the documents (being the email in item 1.7) record a communication which by its nature and context is the subject of a maintainable claim privilege. While the Applicant repeatedly asserts and appears to believe the University has a 'strong anti-disclosure attitude', there is nothing in the material before me that supports a finding to that effect.
7. Accordingly, I am not satisfied that the claim for LPP made in each of the emails is tainted by an improper or unlawful purpose.

Findings on the conclusive presumption

1. It follows that there is a conclusive presumption against disclosure of the information contained in each of the emails and attachments listed in items 1, 2 and 7 (except for item 1.7) of the Schedule by operation of clause 5 of Schedule 1 to the GIPA Act. Applying the principles in Betzis at [31] and Holman at [90], the balancing test in s13, and the personal factors referred to in s 55, do not apply to privileged documents. Accordingly, the University's decision to refuse the Applicant access to the documents in items 1, 2 and 7 (except for item 1.7) is affirmed. I will consider below whether there is an overriding public interest against disclosure of item 1.7, which is not privileged, under clauses 1(e), (f) and (g) of the table in s14 of the GIPA Act.

The remaining disputed documents

1. I will now consider whether there is an overriding public interest against disclosure of the information contained in items 1.7, 3, 4, 5 and 6 of the Schedule pursuant to clauses 1 (e), (f) and (g) and clause 3 (a) and (b) of the table to s14 of the GIPA Act.

Personal factors of the application in favour of disclosure

1. The Applicant submitted that the following personal factors (including the motivation for making the access application) should be taken into account as considerations in favour of disclosure under s55(2): (a) (and I paraphrase), the Applicant explained that she wished to understand the reasons why her employment application was refused, (b) to obtain information as to whether the University had complied with relevant recruitment and selection policies and procedures in recruiting for the Senior Workplace Advisor role; (c) to obtain information as to whether her complaints to the University alleging code of conduct breaches by senior staff in relation to the recruitment process are being dealt with thoroughly, properly and transparently; and (d) the Applicant was concerned that the reasons given for the University's decision on her job application (in the emails referred to above) could adversely affect her future employment opportunities.
2. The University submitted that the Tribunal may infer from the evidence that the Applicant 's motivation for making the application is to obtain additional information about her job application, the recruitment decision, the University's handling of her complaints against two members of staff and its response to the ICAC complaint. Referring to JY v Commissioner of Police [2008] NSWADT 306 at [56], Rae v Commissioner of Police [2020] NSWCATAD 189 at 85], and McKean v Attorney-General & Justice [2015] NSWCATAD 176 at [32], the University submitted that these factors, including the Applicant 's motives for making the application, are essentially private or personal interest that do not amount to a public interest under s12 of the GIPA Act and would have little effect (if any) in promoting or advancing the broader public interest in s12. Other cases which have considered this point, not mentioned by the University, but which are consistent with the principles applied in the decisions referred to include: EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [58], Betzis v Commissioner of Police [2020] NSWCATAD 71 at [83]-[84]; and APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42 at [43].
3. In JY the Tribunal said at [56] that: [56] I do not consider that a private interest alone can amount to a public interest. In so doing, I acknowledge that a private interest may coincide or equate with a similar public interest.
4. In APD at [43] the Tribunal said that the Applicant's personal interest in commencing civil proceedings as a factor that supported access to documents under s55(2) of the GIPA Act, was entitled to limited weight because: "These proceedings are merit review proceedings and not civil proceedings between disputing parties". In Rae the Tribunal concluded at [85] that: [85] … this factor is of very limited weight relative to the other considerations relied upon by the respondent access to government information "to advance a private pecuniary right to commence civil proceedings" (against the respondent) does not amount to a public interest under section 12 of the GIPA Act.
5. In Betzis the Tribunal noted the agency's submissions that the private financial motive of the Applicant in that case was not necessarily a public interest and that it should be given limited weight in determining where the balance of the public interest lies.
6. In my view, applying the principles in JY, I am satisfied that the Applicant's personal motives are consistent and overlap with the broader public interest in transparency and accountability of the University's recruitment and selection framework and its policies and procedures for dealing with complaints about staff. To the extent the approach adopted by the University in the recruitment process/ decision for the Senior Workplace Advisor role is not consistent with its published policy and procedures, disclosure may contribute to enhancing Government accountability and accordingly, is a relevant public interest consideration in favour of disclosure. In the circumstances of this case, I do not consider the "overlap between the personal and private motives and the broader public interest … [to be] be minimal and incidental;" Betzis at [84].
7. It follows that I am satisfied the Applicant's motives and personal reasons for making the access application are relevant considerations and I will take them into account as factors supporting disclosure under s55(2) of the GIPA Act.

Personal factors of the application against disclosure

1. As noted above, personal factors of the application can only be taken into account as factors against disclosure in the present proceedings to the email listed in item 3 of the Schedule by operation of clause 3 of the table to s14 of the GIPA Act; s55(3). The University, however, did not submit that there were any adverse grounds under s55(3) and, in my view, none of the personal factors identified above add any weight to the claimed public interest consideration against disclosure under clause 3(a) or (b).

Public Interest considerations in favour of disclosure

1. The next issue is to determine what public interest considerations that weigh in favour of disclosure are relevant in this matter. Section 12 of the GIPA Act sets out a general public interest in favour of disclosure of government information and lists examples of public interest considerations that favour disclosure.
2. The University acknowledged that the general public interest in disclosure and the statutory presumption of disclosure are relevant considerations that apply in this matter. It also accepted that there is a public interest in disclosing information that facilitates public scrutiny of and transparency in University decision making including in respect of its recruitment and selection processes and decisions. The University also submitted that there is a general public interest in holding the University accountable for the conduct of its staff but disagreed that disclosure of the withheld information would promote or further that public accountability. The University also submitted that the Applicant has overstated and not sufficiently explained how the additional public interest considerations listed in the Note to s12(2) apply in this matter.
3. The Applicant submitted that the public interest considerations listed paragraphs (a)-(h) of the Note to s 12(2) of the GIPA Act are also relevant in this matter.

Consideration

1. I make the following findings in relation to the public interest considerations in favour of disclosure that are relevant in this matter.

General public interest in favour of the disclosure of government information

1. First, that under s12(1) of the GIPA Act, there is a general public interest in favour of the disclosure of government information. There is also a statutory presumption of disclosure under s5 of the GIPA Act.

Disclosure of information would promote accountability and transparency of the University's complaints process and recruitment and selection functions.

1. Secondly, I am satisfied that disclosure of the withheld information could reasonably be expected to promote accountability and transparency of the University's complaints process and recruitment and selection functions. To the extent that disclosure would provide general insight into the University's policies and procedures for dealing with complaints about staff, and its recruitment and selection processes and decisions, those considerations weigh in favour of disclosure To the extent that disclosure would provide insight into the University's consideration of the specific issues raised in the Applicant's complaints about staff misconduct in relation to the recruitment process and decision for the Senior Workplace Advisor role, and the concerns the subject of the ICAC enquiries, those considerations also weigh in favour of disclosure. While, as I will discuss below in my consideration of para ((e] in the Note to s12(2), the evidence does not establish that disclosure would reveal misconduct, it does raise some concerns about the recruitment and selection procedures adopted by the University in relation to the Applicant's job application.

Some of the withheld information is personal information of the Applicant

1. Thirdly, to the extent that the withheld information is personal information of the Applicant, this is a consideration in favour of disclosure. I note however that some of the documents that include the Applicant's personal information have already been disclosed.

Disclosure would ensure effective oversight of the expenditure of public funds.

1. Fourthly, I do not consider that the disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds by the University. As I understand it, the Applicant submitted that information about the amounts paid to recruitment consultants appointed by the University and the moneys spent in its investigations of the relevant complaints would enhance the accountability of the University for the expenditure of public funds, the transparency of its operations, and enable consideration of the value obtained by the University for the expenditure of public money. The University submitted that this was not a relevant consideration in this matter.
2. Having had the advantage of examining the specific information in the withheld documents, which the Applicant has not seen, I do not consider that there is anything in those documents that could reasonably contribute to the public oversight of public funds.

Disclosure of information that could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct

1. The Applicant submitted that another consideration in favour of disclosure of the withheld information is that disclosure could reasonably be expected to reveal or substantiate that the University, and a number of senior university staff have engaged in official misconduct, improper or unlawful conduct. This is listed as one of the examples of public considerations in favour of disclosure in the Notes to s12(2)(e] of the GIPA Act.
2. The Applicant made and repeated a number of serious allegations of wrongful and improper conduct on the part of various senior employees of the University. Firstly, the Applicant submitted that senior officers of the University had failed to comply with the University's published recruitment and selection policies, and code of conduct, in relation to the recruitment process for the Senior Workplace Relations Advisor positions. Secondly, the Applicant contended that a number of senior employees had taken deliberate action to obstruct the Applicant 's access to, and conceal, information under the GIPA Act, relating to the recruitment process and the steps taken by the University to investigate the Applicant 's complaint about the staff involved in the recruitment process.
3. In support of allegations of staff misconduct, the Applicant relied on an exchange of emails set out above at [63]-[75] between senior officers of the University and Ms Flamsteed (the recruitment consultant), which had already been disclosed to her by the University under previous access applications.
4. In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 the Tribunal observed, on appeal, that there would need to be cogent and persuasive evidence for the public interest consideration in 12(2)(e]] to apply. At [135]-[138], the Tribunal said: [135] In our view the Tribunal made a finding at [73] which adopted the terms of note (e) of s 12(2) when it said: "I have accepted … that disclosure could reasonably be expected to reveal or substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.' [136] It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure … 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.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access Applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that 'could reasonably be expected to reveal' the types of improper conduct to which the above formulation refers (emphasis added).
5. In the Danis Appeal, the Appeal Panel observed at [60] that the appliable test is not whether the material on which an Applicant relies could reasonably be expected to establish that the agency has engaged in misconduct, although the Tribunal is entitled to consider whether there was some basis for that view. Rather, the Tribunal's inquiry should be directed at the effect of the disclosure of the withheld documents (at [66]) and whether there is sufficient evidence to support a conclusion that disclosure could reasonably be expected to reveal or substantiate the serious misconduct complained of. The Appeal Panel also noted at [65]-[66] that a person's subjective belief that there has been misconduct of the kind alleged does not (necessarily) establish the truth of the assertions or allegations of misconduct.
6. Returning to the evidence, the email exchange between Ms Dickson and Ms Flamsteed between concerning the Applicant 's job application and, to a lesser extent, the email from Mr Strbik of 7 August 2018 (set out above), does highlight some matters of concern with respect to the process followed with the Applicant's job application, the University's dealings with the Applicant in relation to that job application and the nature of the feedback provided.
7. On the basis of the material before the Tribunal, I can understand why the Applicant has taken exception to the sharp tone and manner of Ms Dickson's emails about her. However, I am not persuaded for the purposes of para (e) in the Note to s12(2), that these documents, whether considered separately or cumulatively with the other material before the Tribunal, including the information in the withheld documents, which (of course) the Applicant has not seen, provide a reasonable basis for the Tribunal to conclude that disclosure of the withheld documents could reasonably be expected to reveal or substantiate, to the requisite standard in Barrett, that the author of the emails, other staff employed by the University or the recruitment consultant had engaged in the serious misconduct alleged in their involvement with the Applicant.
8. I have reached the same conclusion regarding the email from Ms Dickson dated 22 August 2018 copied to Mr Stewart and Mr Srbik (which is set out above at [68]). While some of the comments made in the emails from Ms Dickson could be described as incautious and inelegant, I am not satisfied the disclosure of the withheld information could reasonably be expected to show, to the requisite standard in Barrett, the misconduct or unlawful conduct asserted by the Applicant. Rather the emails show that Ms Dickson was aware that her comments could be publicly disclosed, that she could be embarrassed if the emails were released and that she would be seeking legal advice from Mr Stewart in relation to any access application.
9. Next, I am not satisfied on the basis of all the material before me that disclosure of the withheld documents could reasonably be expected to support the Applicant 's arguments that the University has a 'strong anti-disclosure attitude'. It is clear from the written and oral submissions that the Applicant has a strong belief the University repeatedly and consistently adheres to a culture of secrecy and non-disclosure, both in relation to her access application and in relation to the University's practices and decisions under the GIPA Act more broadly. That subjective belief however, no matter how firmly or genuinely held, or how often it is repeated, is insufficient to establish the truth of those allegations.
10. For all these reasons, para (e) in the Note to s12(2) is not a consideration that favours disclosure in this matter.

Other considerations in support of disclosure.

1. I do not accept the Applicant 's submission that there is a public interest in the University maintaining a positive relationship with candidates for employment and that disclosure could reasonably be expected to advance that obligation. If, contrary to my conclusion, the consideration is relevant, it overlaps with the consideration in para (a) in the Note to s12(2) in the circumstances of this matter as discussed above and does not add any weight to that consideration.
2. Nor do I accept that there is a separate public interest in disclosure of information that involves a senior member of staff. I agree with the University that any concerns about the conduct of staff would be addressed in the consideration in in para (a) in the Note to s12(2) as discussed above. I also agree with the University that the Tribunal decision in Polden v University of Sydney [2016] NSWCATAD 201 does not assist the Applicant in this matter.

Public interest considerations against disclosure in the Table to s14 of the GIPA Act.

1. In considering the public interest considerations against disclosure, the following principles endorsed by the Appeal Panel are relevant: 1. The Tribunal will assess both: (a) whether the University's evidence establishes the nominated effects at a broader operational and systemic level: Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26] and [37]; ECN at [70], and Danis Appeal at [48], [56] and [57]; and (b) whether disclosure of the particular information raised in the matter before it, could reasonably be expected to have the submitted effect: Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [119]; Danis Appeal at [57]. 2. While an agency does not need to provide 'factual' evidence in order to satisfy the 'could reasonably be expected' standard, the Appeal Panel observed in ECN, at [69]: 69. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found that the Tribunal had erred by requiring the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected" standard. The Appeal Panel considered that an ordinary weighing of the material by the Tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses. 1. In assessing whether the agency has met the 'reasonable expectation' standard in relation to the nominated prejudice, (including the future willingness of employees to give information), the Appeal Panel in Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 2 observed at [75]: 75. As we see it, the Tribunal when dealing with evidence and submissions from agencies in FOI cases is required by the Act to exercise its own judgment as to the persuasiveness or otherwise of the evidence presented. It is not bound, because of the absence of contrary evidence, to accept uncritically the evidence of the agency. The process of merits review, including FOI review, is one of inquiry with the object of reaching the 'correct and preferable' decision.
2. "Prejudice" under the GIPA Act is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from"; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
3. The meaning of the words 'could reasonably be expected to' is referred to above at [24].

Clause 1(e) of the table to s14 - Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the University.

1. The University submitted that there is an overriding public interest consideration against the disclosure of the documents in items 4, 5 and 6 on the basis of clause 1(e) and, because I have concluded that the conclusive presumption against disclosure under s14(1) does not apply to item 1.7, that clause 1(e) also applies to that email chain.
2. Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
3. The University must establish that the withheld information, if disclosed, could "reasonably be expected" to 'reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given" in such a way as to "prejudice a deliberative process" of the University.
4. In Thomson v Commissioner of Police [2021] NSWCATAD 53, Senior Member Montgomery summarised the legal principles in relation to clause 1[e) of the table as follows (at [104]-[107]): In relation to clause 1(e) there are two elements. First one must look to see whether the withheld information concerns a deliberation, consultation, opinion, advice or recommendation. The second element requires consideration of whether the revelation of that information could be reasonably expected to prejudice a deliberative process of government or an agency. The Tribunal must be satisfied that the disclosure of the information in issue could reasonably be expected to "reveal a deliberation" in such a way to "prejudice a deliberative process". The Respondent must demonstrate how and why a prejudice would arise if the withheld information is disclosed. In Seremetis, Senior Member Goodman stated at paragraphs [88]-[91]: 88. The words "in such a way as to" in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the "prejudice" to a "deliberative process" of NSW Police: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103]. 89. As noted above, the word "prejudice" bears its ordinary meaning. 90. The expression "deliberative process" involves "the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category...documents disclosing deliberative processes must… be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency": Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58]-[59], Fire Brigade Employees' Union v Fire and Rescue (NSW) at [58] and Luxford v Department of Education and Communities (NSW) at [104]. 91. In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal noted: The 'deliberative process' of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133. The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], in the context in which it appeared in section 36 of the Commonwealth Freedom of Information Act 1982 as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the Commonwealth Freedom of Information Act are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency. Hence, the following comments of the AAT, in Re Waterford, remain instructive: 58 As a matter of ordinary English the expression "deliberative processes" appears to us to be wide enough to include any of the processes of deliberation or consideration involved in the functions of an agency. "Deliberation" means "The action of deliberating: careful consideration with a view to decision": see The Shorter Oxford English Dictionary. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. … 59 It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency. A document which, for example, discloses no more than a step in the procedures by which an agency handles a request under the FOI Act is not a document to which s 36(1)(a) applies. 60 It is documents containing opinion, advice, recommendations etc relating to the internal processes of deliberation that are potentially shielded from disclosure - documents that might, perhaps, have been more aptly described in the headnote as "Internal Thinking Documents". … 61 In order to test the application of s 36(1)(a) to particular documents, it is helpful, in our view, to endeavour to identify what are the "deliberative processes" involved in the functions of the particular agency or Minister or the Government of the Commonwealth to which the requested documents are said to relate. …

Submissions

1. The University submitted that the disclosure of items 4, 5 and 6 (and the email chain in item 1.7) would reveal consultations with staff with respect to the issues arising from a request from an enforcement agency (in this case, the ICAC) concerning a complaint from the Applicant. The University submitted that the process of consulting with and seeking input from staff into requests from external agencies is the relevant deliberation or consultation process that would be prejudiced if the documents were released. Mr Fry deposed that it is routine and essential for the University to consult with staff and to gather and assess information from them so that the University can think about, consider, reflect and deliberate on how it will respond to the request. The University submitted that disclosure of the withheld documents (in items 4, 5 and 6, and the email chain in item 1.7) would reveal the deliberation or consultation conducted.
2. The University also submitted that the disclosure of the withheld documents could reasonably be expected to prejudice the deliberative and consultation processes adopted by the University in response to requests from external agencies, including the ICAC. The University contended that if staff were aware that information provided as part of this process could subsequently be disclosed, it is reasonable to infer that they would be less willing to participate in the consultation process. The University submitted that the full and frank participation of its staff in responding to requests from external agencies is necessary (and according to Mr Fry's evidence at [36] of his affidavit, essential) to ensure that the deliberations are fully informed. It submitted that disclosure of the withheld documents would inhibit staff from providing the necessary input and that as a result, the University's future consultations and deliberations would be prejudiced.
3. Against this, the Applicant adopted the reasoning of the IPC (in the first and second reports) - to the extent it supported disclosure. In the second report, the IPC concluded that the internal emails from staff did not disclose a deliberative process because there is no information in the documents relating to the 'weighing up or evaluation' of competing arguments or factors that may have a bearing on the agency's response to the ICAC request. The IPC considered that, having reviewed the withheld documents, the emails only deal with purely procedural or administrative processes involved with the University's investigations and do not reveal any internal input, opinion or discussion as to possible courses of action.
4. In further written submissions, the Applicant submitted that, apart from the view expressed by Mr Fry in his affidavit and in his cross-examination evidence, there was no evidence as to why university staff would be reluctant to, would refrain from or be inhibited in participating in future consultations in a frank and honest way. In addition, the Applicant submitted that the University did not explain why staff would not be required to participate in future consultations as public sector employees rather than having to rely on their voluntary cooperation.

Consideration

1. The University submitted that disclosure of the emails in items 1.7, 4, 5 and 6 would reveal deliberations and consultations with staff in relation to the ICAC request for information concerning a complaint from the Applicant. In particular the University submitted that the withheld information would reveal its deliberations, its "thinking processes", its process of reflection in seeking input from and discussions with staff as to possible courses of action, evaluating the wisdom and relative benefits and detriments of those discussions and deliberations in relation to the ICAC request: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13 at [66], [71]; Fire Brigade Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133 at [57]-[58], and Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61], and Seremetis at [88]-[91], referred to in Thomson at [104]-[107].
2. Having considered the specific information contained in items 1.7, 4, 5 and 6, I am not satisfied that it reveals deliberations, opinions, recommendations or advice given in relation to the ICAC request for information concerning the complaint from the Applicant or, in relation to the University's (own) investigation into the Applicant's Code of Conduct allegations against two senior employees. At the highest, the documents reveal that a consultation was sought with staff to collate and present information for the purpose of the University responding to the ICAC request. The documents themselves do not, however record, and do not reveal any discussion, consideration, opinion, advice or recommendation from the staff consulted in relation to the information to be collated and presented in connection with the ICAC request or, for that matter, in relation to the underlying complaint from the Applicant. There is nothing, on the face of the disputed emails, in my opinion, that would, if disclosed, reveal any discussion or view expressed or submission made by any of the individuals consulted. Instead, all that would be disclosed would be that the staff were asked to compile and assemble information relating to the complaint. On that basis I consider that, having regard to the actual content, the emails deal with the procedural or administrative processes involved in responding to the ICAC request and not the University's thinking process or its process of reflection.
3. If, however, contrary to my conclusion it is found that disclosure of the disputed emails would reveal consultations and deliberations of staff in relation to complaints and concerns about senior staff, I will now consider the second element of clause 1(e), as stated in Thomson at [104] and Seremetis at [88], namely: whether there is a connection between the deliberations recorded in the withheld documents and the deliberative processes of the University that would be prejudiced.
4. In that connection, Mr Fry told the Tribunal, and the University submitted that, disclosure would result in staff being inhibited in providing frank and honest views and discussions on, or declining to participate in, future investigations and consultations. He told the Tribunal (and the University submitted) that the full and frank participation of staff is essential to ensure that deliberations are fully informed and that if staff were less candid or co-operative, that in turn could prejudice or impede the University's future deliberative processes in responding to requests from agencies such as the ICAC.
5. I accept the University's submissions that there are a number of authorities where the Tribunal has held that disclosure of information obtained from staff in confidence in relation to a deliberative or consultation process concerning an internal investigation of complaints made against staff would: (a) impede the full and frank participation of staff in the complaint's management process, (b) prejudice future deliberations arising from that process, and (c) impede the effective exercise of the complaints handling function itself; Pemberton v Macquarie University [2014] NSWCATAD 76, at [38]; Noble v University of New South Wales [2017] NSWCATAD 2, at [43]-[47]; Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29, at [50]; Macquarie University v Howell (No. 2) (GD) [2009] NSWADTAP 19, at [10]; Robinson -v- Director General, Department of Health [2002] NSWADT 222, at [71]. In the course of considering a provision equivalent to clause 1(d) of the table to s 14 of the GIPA Act, in Mullett (No 2) the Appeal Panel observed at [50]: 50. We acknowledge that conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise.
6. However, the principles referred to in the Tribunal decisions above do not create a reasonable expectation that an agency's deliberative processes (or complaints management functions) may be prejudiced, to the requisite degree in every case. Rather, the question must be determined on the basis of an appraisal and assessment of all the facts, the specific content of the documents in issue and in particular the circumstances in which staff were consulted and the relevant information was given.
7. For the reasons that follow, I am not satisfied that the connection between the information recorded in the withheld documents and the (future) deliberative processes of the University is made out.
8. Mr Fry expressed the opinion that staff would be reluctant to participate in future deliberative processes if the internal consultations were disclosed, and that the University relied on the co-operation and candour of staff, however he did not explain why staff would not co-operate, or would be less candid and frank if the relatively limited content of information recorded in the withheld documents were disclosed. While I accept his evidence that the University relies on the co-operation of employees in investigating complaints and in responding to a confidential request for information from agencies such as the ICAC, his evidence on the expected prejudice that would result from disclosure of the relevant emails, in my opinion, is expressed in a fairly generalised and conclusionary way. His evidence does not engage with the specific and limited content of the information recorded in the emails when expressing his opinion as to the expected effects of disclosure. I do not consider Mr Fry's evidence, that disclosure of the emails would adversely affect the full and frank nature of discussions by staff or impair or impede the open flow of information in relation to future consultations with staff, to be persuasive, taking into account the actual content of the emails.
9. In addition, Mr Fry's evidence did not adequately explain whether staff were under a legal obligation to co-operate or participate in these processes. The University did not make any submissions on, or put into evidence instruments which govern the obligations, responsibilities and expectations of employees in relation to internal investigations and complaints management inquiries. Mr Fry's evidence does not disclose, to adapt the words of Judicial Member Molony in Hurst 'any other basis of his opinion' aside from a statement that it would not be possible for the University to 'comprehensively and accurately respond to inquiries from the ICAC if these confidential deliberations were made publicly available." Where, as Judicial Member Molony put it, the evidence consists merely of that person's opinion as to the likelihood that people will behave in a certain way, the usefulness of that evidence is likely to be limited; (Hurst at [63]-[65]. The reasoning in Hurst was applied by Senior Member Lucy in Applicants v Commissioner of Police [2015] NSWCATAD 22 at [97]. Senior Member Molony also applied this reasoning in McKinnon v Blacktown City Council [2012] NSWADT 44 at [58].
10. Taking into account all of these matters, the public interest consideration in clause 1(e) is not established in relation to items 1.7, 4, 5 and 6. If, however, my conclusion on this point is wrong, the weight to be attributed to this consideration against disclosure is low, for the reasons that I will discuss below in weighing the competing public interest.

Clause 1(f) of the Table - Prejudice the effective exercise by an agency of the agency's functions.

1. The University also relies on clause 1(f) of the table in relation to the documents identified as items 4, 5 and 6 of the Schedule and, because I have concluded that the conclusive presumption against disclosure under s14(1) does not apply to item 1.7, it relies on clause 1(f) to withhold that email chain.
2. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions.
3. Clause 1(f) has been considered in a number of Tribunal decisions including Luxford v Department of Education and Communities [2016] NSWCATAD 118 in which Senior Member Montgomery observed at [118]-[121]: 118. Clause 1(f) requires an agency to establish that the release would prejudice the effective exercise of its functions. This provision has been considered in a number of Tribunal decisions. As with Clause 1(d) above, this provision has often been considered in relation to an agency's assertion as to the importance of obtaining confidential information in order to effectively exercise its functions. Clause 1(f) does not require that the information in issue had been provided in confidence. Nevertheless, the agency asserts that the disclosure of the information could reasonably be expected to prejudice the effective exercise of its functions. In Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 the Tribunal was not satisfied that recorded communications between the Service's employees were confidential for the purposes of Clause 1(d) but it accepted that Clause 1(f) applied as disclosure of these communications in the form sought by the Applicant could reasonably be expected to prejudice the exercise of the Service's functions. … 120. In AMH v Western New South Wales Local Health District [2013] NSWADT 282 the withheld information related to the investigation of a complaint of bullying and harassment. The Tribunal accepted that the disclosure of information in that case would prejudice the agency's future management of human resource issues requiring disciplinary investigations and on the day to day operations of the agency.

Submissions

1. The University submitted that it has an investigation and complaints handling function which includes conducting confidential inquiries with staff in response to request for information from enforcement agencies such as the ICAC. The University submitted that conducting confidential internal inquiries in response to such requests, is a function essential to the promotion of its objects under s6(1) of the University of Sydney Act 1989 (NSW).
2. The University repeated its submissions in relation to clause 1(e) and argued that disclosure of the emails in items 1.7, 4, 5 and 6 could inhibit staff co-operation and participation in future investigation and complaints handling processes. - including in collating and gathering information from staff in relation to a request from an enforcement agency, such as the ICAC. The University referred to Pemberton at [38] and Noble at [43]-[[47] to support their submission that there is a public interest in keeping communications related to internal investigations confidential because disclosure would undermine staff confidence in the process and deter them from providing information in relation to future investigations. The University further submitted that information provided by staff in relation to a complaint or internal investigation is obtained on the basis that the information would not be disclosed and, as I understand it, obtained in confidence, although the University does not rely on the public interest consideration that disclosure would prejudice the future supply of confidential information by staff, under clause 1(d).
3. As against this, the Applicant adopted the reasoning of the IPC in the first and second reports to the extent it supported disclosure. The Applicant submitted that while the University does have an investigative and complaints handling function, it has not shown how those functions would be prejudiced if the documents were disclosed. The Applicant repeated the submissions made in relation to clause 1(e) that University employees would be under a lawful obligation to provide information of the kind requested by the ICAC and that there was no evidence which explained why staff members were not obliged to engage in consultation with the University in relation to an ICAC request, ether legally or under their terms of employment.
4. The Applicant also submitted that the public interest in favour of disclosure outweighs the public interest against disclosure asserted by the University under clause 1(f), because it could reasonably be expected that the withheld information may reveal that the University has, and some of its senior staff have, engaged in misconduct or improper conduct.

Consideration

1. For the same reasons set out above in relation to clause 1(e), I do not accept the University's submission that disclosure of the emails could reasonably be expected to prejudice or impede its ability to carry out its deliberative and information gathering functions (in responding to requests from agencies such as the ICAC) because staff would be dissuaded from providing input in the future. I am not satisfied, having regard to the limited content in the actual emails, Mr Fry's evidence and the University's submissions, that it could reasonably be expected that staff would be discouraged from engaging in future consultations, or would be less open or less inclined to provide information in the future, if the withheld emails were disclosed. Mr Fry's evidence that: "it would not be possible for the University to comprehensively and accurately respond to inquiries from the ICAC and other investigative agencies if these confidential deliberations and consultations were made publicly available" is, in my view, taking into account the relatively limited content of the emails, stated too broadly and framed at a fairly high level of generality. At the highest, Mr Fry's evidence may establish that the apprehended prejudice is a possibility, however "something more than a possibility, risk or chance of the event occurring" is required to meet the ''can be reasonably be expected" standard; (Cockburn at [106] referred to in Veall at [23]). In my view, Mr Frys' evidence does not establish that there are "real and substantial grounds that the submitted prejudice would arise": Leech at [28] referred to in Veall at [21].
2. In the circumstances, I am not satisfied that the public interest consideration against disclosure in clause 1(f) applies to the information in items 1.7, 4, 5 and 6. If, contrary to my conclusion, it is a relevant consideration, I do not consider, for the reasons I will give below in weighing the countervailing interests, that the public interest against disclosure of the emails in issue under clause 1(f) outweighs the public interest considerations and personal factors that support disclosure.

Clause 1(g) of the Table - Disclosure of information provided to the agency in confidence.

1. The University has also applied clause 1(g) to withhold the documents in items 4, 5 and 6 and, because I have concluded that the conclusive presumption against disclosure under s14(1) does not apply to item 1.7, to that email chain.
2. This consideration against disclosure applies if disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence.
3. For this public interest consideration against disclosure to apply, it must be established that the information was provided in confidence. This is ultimately a question of fact. As to whether information has been provided in confidence or is confidential information", the Appeal Panel stated in Camilleri at [33]-[34], that the question: "is to "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". That inquiry should "focus on the point of receipt, and the administrative standards and community understandings which surround it".
4. In DQN v University of Sydney [2019] NSWCATAD 159, the Tribunal observed at [59] that it is well established that, in the context of the GIPA Act and freedom of information legislation, the necessary quality of confidence need not be express and can be inferred from the nature of the information supplied, the persons who provided the information and the circumstances in which the information was obtained: see Diehm v Greater Taree City Council [2010] NSWADT 241 at [53] and Alexander v University of Sydney [2008] NSWADT 214 at [26].
5. 'Disclosure of information' is defined in Schedule 4 to the GIPA Act to include making information available and releasing or providing access to information.

Submissions

1. The University contended that the withheld information in items 1.7, 4, 5 and 6 is confidential information because it is marked confidential or strictly confidential, was treated as confidential by the University and that the content includes matters that are not generally known. The University submitted that information is provided by staff (and third parties) in response to a request from the ICAC on a confidential basis and that there was no general expectation that the information would eventually be made public by the ICAC. The University further submitted that the nature of the confidentiality may be inferred from all the circumstances.
2. The University relied on Mr Fry's evidence that the University's internal inquiries and consultations in relation to requests for information from enforcement agencies, such as the ICAC, are conducted on a confidential basis. The University also submitted that the release of the withheld documents under the GIPA Act would result in the disclosure of that confidential information. The University further submitted that, referring to Pemberton, there is a strong public interest in keeping internal investigations and communications connected to a complaint confidential, so that the full and frank nature of discussions with staff in the future will not be prejudiced.
3. As mentioned above, the Applicant relies on the IPC reports to the extent it supports disclosure. The Tribunal notes that in the second report, the IPC is satisfied that the information in the emails were provided in confidence and that disclosure of this information could reasonably be expected to disclose information provided in confidence. As I understand it, the Applicant submitted however that the University has not discharged the onus of showing that it could reasonably be expected that information supplied by staff in response to a request from the ICAC was provided in confidence. That is because: (a) staff could not have a reasonable expectation that the relevant consultations and information would be kept confidential in circumstances where, as a matter of common knowledge, the ICAC has the power to publicly disclose information in relation to its investigations; (b) the University did not provide sufficient evidence that either (i) assurances and promises were given to staff as to confidentiality, or (ii) that there was an understanding by staff that the relevant information would remain confidential.

Consideration

1. As noted above, the University relies on the evidence of Mr Fry that consultations and request for information and input from staff in relation to requests from enforcement agencies such as the ICAC are conducted confidentially. Apart from Mr Fry's evidence, the University relied on the information itself which is clearly marked 'confidential' or 'privileged and confidential", [NOT FOR PUBLICATION], and the circumstances in which the information was provided.
2. Based on the evidence before me, I am satisfied, on balance, that the information in the withheld documents was provided by staff in relation to the University's internal consultation processes in response to request for information from an external agency on a confidential basis. I have also considered the withheld information and am satisfied that it could reasonably be expected that it was obtained in confidence. I have also taken into account the fact that the emails are marked confidential or strictly confidential, 'although the labelling and treatment of information as confidential is not conclusive: McKinnon v Blacktown City Council [2012] NSWDAT 44 at [55].
3. Accordingly, I am satisfied, on balance, that clause 1(g) applies to the information in items 1.7, 4, 5 and 6 and will take this into account as a public interest consideration against disclosure of those documents.

Weighing the considerations for and against disclosure of items 1.7, 4, 5 and 6

1. I will now turn to the public interest test and the balancing exercise required by s 13 of the GIPA Act to determine whether there is an overriding public interest against disclosure of items 1.7, 4, 5 and 6 of the Schedule on the basis that the public interest considerations against disclosure under clause 1(e), (f) or (g) of the Table to s 14(2) of the GIPA Act, on balance, outweigh the public interest considerations and personal factors of the application in favour of disclosure.
2. In balancing the interests for and against, I have: (a) applied the principles summarised at [27]-[30] above, (b) taken into account the public interest considerations and personal factors that support disclosure, summarised at [185] - [213] above; (c) considered the effect of disclosing the specific content of the information recorded in the relevant emails on the nominated public interest consideration, (Destination NSW at [69]; Forbidden Foods at [52]; Taylor at [20] ]) and, (d) taken into account that disclosure of information under the GIPA Act is disclosure to the public at large; ss15(e] and 73.
3. As to the general public interest in disclosure of information under s12(1), I consider in the circumstances of this case that this consideration carries some weight. To the extent that disclosure would provide insight into the specific issues raised in the Applicant 's complaints and concerns about the recruitment process for the Senior Workplace Advisor role, including whether the University carried out its recruitment, selection and complaint handling functions with respect to that role in a proper and transparent manner and consistently with its published policies and code of conduct, I attribute moderate, but not significant weight to this consideration in favour of disclosure. That is because disclosure of the specific content of the emails in items 1.7, 4, 5 and 6, (which as noted above the Applicant has not seen), would, in my view, provide some but not a great deal of additional insight into the particular concerns raised in this application. On the same basis, I consider that the Applicant's personal interest in obtaining access to information relating to her particular complaint and specific circumstances adds a limited degree of weight in favour of disclosure. In attributing weight to this factor, however, I accept (as set out in my discussion of the public interest considerations in favour of disclosure above) that the evidence does highlight some matters of concern with respect to the process followed with the Applicant's job application, the University's dealings with the Applicant in relation to that job application and the nature of the feedback provided.
4. To similar effect, having regard to the content of the disputed information, I consider that access will contribute in a moderate but not substantial way to enhancing or promoting University accountability and transparency in its complaint's management processes at both a systemic and broader operational level and in relation to the particular issues raised in this Application. As stated above, the Applicant's personal interest in obtaining access to information relating to her particular complaint and specific circumstances adds some weight to this public interest consideration. Taking all these circumstances into account, including the actual information recorded in each document, I have attached a moderate degree of weight to the public interest considerations in favour of disclosure identified in this matter.
5. As to the public interest considerations against disclosure in clause 1 (e], (f) and (g), the University submitted that these matters are entitled to significant weight because of the expected adverse effect on the exercise of its functions in responding to requests arising from internal and external agencies and its deliberative processes. It submitted that disclosure would prejudice the future supply of information by staff and discourage their openness, candour and willingness to participate in future deliberative processes and consultations connected to a request from an agency such as the ICAC. For the reasons set out above in my discussion of the considerations in clause 1 (e], (f) and (g), I do not agree with the University that significant weight should be attached to these considerations against disclosure. I am not satisfied that disclosure of the particular information in the emails would have a significant adverse (or chilling) effect on future staff contributions and deliberations of the nature and kind contained in the emails. Nor am I persuaded that disclosure would result in a systemic prejudice to the University's information gathering functions and deliberative processes more broadly. As concluded above, I consider that the apprehended prejudice to future deliberations that may result from disclosure of the particular emails referred to in Mr Fry's evidence is, in my view, stated too broadly. Taking into Mr Fry's evidence, the University's submissions and the actual content of the withheld information, the public interest considerations against disclosure under clause 1(e), 1(f) and 1(g) of the Table to s14 are, in the circumstances of this case, only entitled to minimal weight and do not outweigh the considerations in favour of disclosure.
6. It follows, in my view, that there is not an overriding public interest against disclosure of the information in the emails in items 1.7, 4, 5 and 6, and accordingly those documents should be released to the Applicant.

Clause 3(a) of the Table - reveal an individual's personal information

1. The University relies on clauses 3(a) and 3(b) of the table to withhold the disclosure of the document identified in item 3 of the Schedule. I will deal with the requirements of these clauses separately.
2. The public interest in clause 3(a) against disclosure applies if disclosure of the information could reasonably be expected to reveal personal information.
3. There are two aspects to the cl 3(a) public interest consideration against disclosure. These are: 1. the information in issue is personal information; and 2. a disclosure of that information could reasonably be expected to reveal that information.
4. Personal information" is defined in cl 4 of Sch 4 to GIPA Act in the following way: 4 Personal information (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, including the individual's position title, public functions and the agency in which the individual works) 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.
5. The Information Commissioner has published Guideline 4 - Personal Information as a public interest consideration under the GIPA Act ("IPC Guideline -4"), which are relevant when determining whether there is an overriding public interest against disclosure (ss 14(3),15 and 17 GIPA Act). The Guidelines set out what is meant by 'personal information' in the GIPA Act, and at clause 17 states: Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person.
6. Personal information includes information about a person who is the subject of a complaint and information about the conduct (or alleged misconduct) of an employee of an agency is personal information: McKinnon at [73]. Personal information does not include 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; paragraph 3(b) of the definition of personal information in Schedule 4, clause 4(1)) of the GIPA Act.
7. The term 'reveal' is defined in cl 1 of Sch 4 of the GIPA Act as meaning to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). In Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 at [64] and [69], the Appeal Panel held that personal information is only revealed when it is publicly disclosed.

Submissions

1. The University submitted that the redacted information in item 3 (which is an email dated 6 August 2019) could reasonably be expected to disclose the personal information of two individuals. The individuals whose personal information the University contends may be disclosed are two staff members against whom the Applicant has complained. The University has already provided the Applicant with a redacted version of the email on the basis it includes an express reference to the Applicant, which is her personal information.
2. The University submitted that the identity of the author of the email and another staff member is apparent from the email itself, and that this is personal information. The University also contended that the exclusion in paragraph 3(b) of the definition of personal information in Schedule 4, clause 4(1) does not apply because the email, if disclosed, would reveal more than the fact the individuals were engaged in the exercise of public functions.
3. Against this, the Applicant submitted that the redacted information in item 3 is not personal information by operation of the exclusion in schedule 4 because it does not reveal anything other than the named individuals were engaged in the exercise of public functions. The Applicant also submitted that because the author of the email is an officer of the University that tends to establish that the information is not personal information because that person was engaged in the exercise of a public function in addressing the Applicant 's complaint.

Consideration

1. I have read the redacted email in item 3 and am satisfied that the names of the two staff members referred to in the email is their personal information. The exclusion in clause 4(3)(b) does not apply because the email also discloses that the named individuals are the subject of a complaint.
2. I am satisfied that the disclosure of the email in item 3 could reasonably be expected to reveal personal information about the individuals named in the email. I am also satisfied on the material before the Tribunal that the personal information about the individuals has not been disclosed or revealed to the public at large. The fact that the Applicant knows the identity of the individuals referred to in the email does not mean that the information has been revealed.
3. It follows, that I am satisfied that the public interest consideration in clause 3(a) applies to the email in item 3. I will address below the parties' submissions as to whether there is an overriding public interest against the disclosure of item 3.

Clause 3(b) of the Table - contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

1. As noted above, the University also relies on clause 3 (b) of the table to withhold the disclosure of the email identified in item 3 of the Schedule. Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (NSW), ("the PPIP Act").
2. The University relies on the IPP in s18 of the PPIP Act. The IPP in s18(1) limits the disclosure of personal information unless: (a) the disclosure is directly related to the purpose for which the information was collected and the agency, in disclosing the information, has no reason to believe that the individual concerned would object to the disclosure, (b) the individual concerned is reasonably likely to have been aware that the information is to be disclosed, or (c) the agency believes on reasonable grounds that disclosure is necessary to prevent or lessen a serious or imminent threat.
3. Personal information is defined in s4 of the PPIP Act to include information about an individual's identity that is apparent from the relevant information. The exclusion in clause 4(3)(b) of schedule 4 of the GIPA Act does not apply to s18 of the PIPA Act and is not relevant in determining whether, for the purposes of clause 3(b) of the Table to s14 of the GIPA Act, disclosure of the personal information could reasonably be expected to contravene the IPP in s18.

Submissions

1. The University submitted that the information that has not been disclosed to the Applicant in item 3, is personal information of the individuals named in the email.
2. The University also submitted that IPP in s18 prohibits it from disclosing the personal information in item 3 and that none of the permitted disclosures (or exceptions) in s18(1)(a)-(c) apply.
3. It submitted that the personal information in item 3 was provided for the purpose of enquiring in to the Applicant 's complaint about the people identified in the email. It submitted that disclosure to the Applicant in response to her access application under the GIPA Act would not be directly related to that purpose: s18(1)(a) of the PIPPA Act. In his affidavit, Mr Fry states that one of the individuals named in the email has objected to the release of their personal information.
4. The University also submitted that it is not usual practice to disclose personal information provided in relation to a complaint about staff in response to a GIPA Act application: s18(1)(b) of the PIPPA Act. In its further submissions in reply, the University argued that the exception in s18(1)(b) is directed to information that is collected in a systematic way, (for example in a data base) rather than an email and accordingly its staff would not be aware that any personal information in an email would usually be disclosed in response to an access application under the GIPA Act. In support of this contention, the University relied on the reasoning of the Appeal Panel in Vice-Chancellor, Macquarie University v FM (No.2) (GD) [2004] NSWADTAP 37 at [27].
5. Put against this, the Applicant submitted that the exception in s18(1)(b) of the PIPPA Act would apply. This is because the individuals referred to in the email are staff of the University and would be aware that their names and other personal information recorded in an email would usually be disclosed to a person who makes an application under the GIPA Act.
6. The Applicant also submitted that the University's contention that it is not reasonably likely that staff would be aware that personal information of the kind recorded in an email (rather than in a data base) would be publicly disclosed is an argument unsupported by evidence. The Applicant submitted that the University did not put on any evidence from university staff to explain their understanding about what information would usually be disclosed in response to a GIPA application and nor has Mr Fry addressed the matter in his evidence. The Applicant submitted that the University has failed to discharge the onus of proof under s105 and that its argument that the exception in clause 18(1)(b) of the PIPPA Act does not apply to personal information in an email must be rejected.

Consideration

1. I am satisfied, for the reasons I have given above in relation to clause 3(a), that the information that has not been disclosed in item 3 is personal information of the individuals named in the email.
2. I am also satisfied that the permitted disclosure in the exception in s18(1)(a) of the PIPPA Act does not apply. On the material before the Tribunal, the personal information in item 3 was collected for the purpose of enquiring about a complaint made by the Applicant and not for the purpose of disclosing it to the Applicant pursuant to an application under the GIPA Act. Accordingly, I am satisfied that disclosure of the personal information in item 3 in response to an application under the GIPA Act would not be directly related to the purpose for which the information was collected.
3. I also find that that it is not reasonably likely that University staff, in sending and receiving emails concerning a complaint about a university employee, would be aware that personal information recorded in such an email would be disclosed to a person who makes an application under the GIPA Act.
4. Accordingly, I am satisfied the University has established that clause 3(b) applies as a public interest against disclosure of item 3.

Weighing the considerations for and against disclosure of item 3

1. Having come to the conclusion that clause 3(a) and 3(b) apply to the personal information in item 3, I turn now to the balancing exercise required by s13 of the GIPA Act. In weighing the countervailing considerations, I have taken into account the principles summarised above at [27]-[30], the presumption in favour of disclosure, the effect of disclosing the particular information recorded in the relevant emails (Destination NSW at [69]; Forbidden Foods at [52]; Taylor at [20]); and the fact that disclosure under the GIPA Act is in effect disclosure to the public at large and cannot be subject to conditions and restrictions.
2. The University submitted that there is a significant public interest against disclosure of personal information of the people named in the email because: (a) they are the subject of a complaint and the allegations the subject of the complaint have not been tested, (b) one person identified in the email has objected to the release of their personal information, (c) there can be no restrictions imposed on the Applicant 's use or subsequent disclosure of the personal information; (d) disclosure of the names of staff against whom a complaint has been made does not advance the public interest consideration in the transparency and accountability of the University's complaint management and human resources functions particularly given that the Applicant already knows the identity of the staff the subject of the complaint.
3. The fact that personal information is disclosed in the email and one person has objected to disclosure of their personal information is not determinative of the matter: Lonsdale v University of Sydney [2016] NSWCATAD 176 at [91], Anderson v Tweed Shire Council [2017] NSWCATAD 61 at [19]; IPC Guideline 4 at [3.9]. Having considered the contents of the email, the personal information recorded in it is, to adopt the description of Senior Member McAteer in Lonsdale, 'fairly benign'. While the email identifies the two staff against whom a complaint has been made, it discloses nothing more than the fact a complaint has been made. The email does not disclose the nature or content of the alleged misconduct or disclose any sensitive personal information about the individuals referred to in the document. On that basis, I do not consider the disclosure of the personal information of the two employees to be a particularly strong or persuasive consideration against disclosure in the circumstances of this application and is therefore entitled to minimal weight.
4. The public interest considerations in favour of disclosure are, however, not entitled to a great deal of weight either. This is because the effect of disclosing the particular information recorded in the relevant email is not going to: (a) contribute in any substantial way to the public interest of enhancing transparency and accountability of the University's complaint handling and recruitment functions and decision making, both in the circumstances of this particular case, and at a broader, more systemic level, (b) advance the Applicant's understanding as to the integrity or thoroughness of the University's investigation of the complaints or help her understand its complaint handling processes more broadly, and (c) because, as the University submitted, the Applicant already knows the names of the people against whom the complaints have been made.
5. That being so, I do not find the evidence and submissions as to the expected effects of disclosing the limited personal information recorded in the relevant email as weighing in favour of a conclusion one way or the other. Put slightly differently, I have concluded that the considerations for and against disclosure of item 3 are evenly balanced. The test under s105 of the GIPA Act however requires the University to justify its decision to withhold the email on the basis that the public interest consideration against disclosure outweigh those in favour. The University has not discharged that onus. It has not persuaded me that the public interest consideration against disclosure of the personal information in the withheld email outweighs the public interest considerations for disclosure and accordingly item 3 should be released to the Applicant.

Referral under s 112 - whether an officer has failed to exercise a function in good faith

1. The next issue to be considered is whether as a result of this review, the Tribunal is satisfied that any or all of Ms Dickson, Mr Stewart or Mr Strbik have failed to exercise in good faith a function conferred on them by or under the GIPA Act and, if so, whether the matter should be brought to the attention of the Minister under section 112. Section 112 of the GIPA Act permits but does not require the Tribunal to bring a matter to the attention of the relevant Minister if an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act.
2. Section 112 has been considered by the Appeal Panel in a number of decisions: Warren v NSW Trustee and Guardian [2014] NSWCATAP 20; Alam v Insurance and Care NSW [2020] NSWCATAP 215; and Zonnevylle v Department of Justice [2019] NSWCATAP 44.
3. In Zonnevylle at [87], the Appeal Panel summarised the principles relevant to a referral under s112 of the GIPA Act. At [48]-[50] and [58], the Appeal Panel said: [48] The Tribunal has administrative review jurisdiction to exercise the powers under s 111 and s 112 of the GIPA Act. The discretion to refer any matter to the Information Commissioner or to bring certain matters to the attention of the Attorney General are functions conferred on the Tribunal by 'enabling legislation' (the GIPA Act), in connection with the conduct or resolution of administrative review proceedings: NCAT Act, s 30(2). [49] Section 112 has four elements: 1. the formation of the opinion ("if NCAT is of the opinion"); 2. the circumstances in which the opinion may be formed ("as a result of an NCAT administrative review"); 3. the nature of the opinion ("that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act"); and 4. the fact that bringing the matter to the attention of the Minister is discretionary ("may bring the matter to the attention of the Minister"). [50] The second element is that the opinion must be formed "as a result of an NCAT administrative review". The administrative review is the review of any reviewable decision the Department has made under the GIPA Act. We agree with the Tribunal's finding that s 112 does not give the Tribunal power to carry out an inquiry into the officer's conduct that is separate from or additional to the administrative review proceedings. [58] The Tribunal and the Appeal Panel have specific powers to take certain action in accordance with s 111 and s 112 of the GIPA Act. The power in s 111 is to refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications …". The power in s 112 is to bring to the Minister's attention a failure of an officer to exercise in good faith a function conferred on the officer. Although s 112 is headed 'improper conduct', headings to these sections are not part of the GIPA Act: Interpretation Act 1987, s 35(2). The Tribunal does not have power to bring to the attention of the Minister any conduct that the Tribunal may regard as improper. An opinion must be formed that the conduct is "a failure to exercise in good faith a function conferred on the officer". Nor does the Tribunal have the power under s 112 to bring to the attention of the Minister an alleged offence under the GIPA Act unless the conduct concerned also meets the test set out in s 112. The same reasoning applies to s 111.
4. In Alam, the Appeal Panel stated at [26]: [34] The issues the subject of s 112 of the GIPA Act are not issues which are intended to be dealt with by the Tribunal in a decision on an administrative review. What is contemplated by the plain words of the section is that, on the completion of an administrative review, NCAT may, on its own initiative, bring the matters set out in the section to the attention of the Minister who has responsibility for the agency in question. The issues the subject of s 112 of the GIPA Act are not issues which are intended to be decided in an administrative review decision concerning an Applicant for information and an agency.
5. In Warren, the Appeal Panel observed at [41]: [41] embarking an inquiry of the kind that s 112 contemplates would be a grave step reserved for very rare cases.
6. The concept of 'good faith' was considered by Senior Member Montgomery in Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303 at [99]-[105] as follows: [99] In Zonnevylle from paragraph [27] I also considered the standard to be applied in relation to the question of good faith. [100] What is required for something to be done or omitted in good faith may vary from one case to the next. I have previously expressed the view that the test of good faith is predominantly subjective: Saggers v Environment Protection Authority [2013] NSWADT 204; Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. [101] However, there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. Further, serious and careful consideration must be given to the application; there must be more than a cursory review. The GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements: Shoebridge at paragraphs [37], [40] - [42]. [102] An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account. [103] It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received [104] The obligation to perform their task in good faith will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures. The exercise of a power in good faith requires an honest and conscientious approach. [105] However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer's conduct demonstrates something more than honest ineptitude.

Submissions

1. At the invitation of the Tribunal both parties filed detailed written submissions on whether a referral under s112 should be made. I have read those submissions carefully however I do not propose to set out all of the arguments in detail.
2. In summary, the Applicant submitted that: 1. As a threshold issue, s112 applies to the conduct of an officer who has exercised a function under the GIPA Act in connection with any access application made by the Applicant and is not limited to aspects of the reviewable decision the subject of these proceedings. The Tribunal is also entitled to consider the conduct of relevant officers in relation to the earlier access applications because the decisions made, and the documents released under those applications, are in evidence in these proceedings. In addition, the Applicant submitted that s112 extends to the conduct of an officer in relation to a proposed access application. The Applicant submitted that the concept of exercising a 'function' under the Act should not be interpreted narrowly. 2. she does not bear the burden of proving that the officers have failed to act in good faith because she did not make the request of the Tribunal to refer the matter to the Minister under s112. 3. Three officers of the University, Ms Jodi Dickson, Mr Frank Strbik and Mr Dominic Stewart failed to exercise functions conferred on them under the GIPA Act in good faith. I will consider the specific allegations below. 4. The Applicant submitted that the 'grave and serious cases' threshold referred to in Warren is met, because the evidence demonstrates that the nominated officers deliberately and intentionally concealed and withheld documents and conspired to limit and obstruct access to information that the Applicant was entitled to under the GIPA Act.
3. Put against this, the University submitted that: 1. The Applicant bears the onus of establishing the facts on which she relies to support a referral under s112. The University submitted that given the Applicant 's repeated allegations of serious misconduct by nominated officers of the University, both in the written submissions and at the hearing, the Applicant in effect has requested a referral to the Minister under s112 and accordingly has taken on a role "comparable to that of a prosecutor;" Saggers at [28]. 2. A referral under s112 "is a very grave step, reserved for very rare cases" (Warren at [41]) which must be proved to a high standard (Zonnevylle at [14]). 3. The power in s112 is limited to a review of the exercise of specific functions by specific officers which are connected to the reviewable decision and not in relation to any other conduct. The Tribunal can only have regard to the material before it in relation to the reviewable decision. In addition, the Tribunal cannot have regard to conduct that predates the making of an access application under the GIPA Act. 4. The Tribunal must be satisfied that the nominated officers of the University were exercising a function under the GIPA Act. It submitted that a function under the Act is defined under s9 to include a power, authority or duty exercised under the Act. Referring to Zonnevylle at [32]-[36], the University submitted that those functions include: (a) providing reasonable advice and assistance so as to enable a person to make an access application, (s16); (b) decide whether an access application is valid (s51); (c) undertaking reasonable searches to find information that responds to the access application, (s53); (d) decide an access application, (s57-58); and, (e) refuse to deal with an application, (s60). 5. It submitted that the fact a person authored or received an email that refers to the GIPA Act does not necessarily mean that person was exercising a function under the Act. It further submitted that none of the conduct complained of, with one possible exception, involved the exercise of a function by the nominated officers under the GIPA Act. I will return to the University's submissions about whether the nominated individuals were exercising a function below. 6. Even if the officers were exercising a relevant function: 1. there is no evidence that they were not exercising those functions in good faith; 2. the Tribunal retains a discretion about whether to refer a matter under s112. 1. That the allegations of general misconduct by the University and alleged 'obstructive behaviour' of officers in relation to GIPA Act applications, unrelated to the reviewable decision, are irrelevant and beyond the jurisdiction of the Tribunal under s112. In any event, the University submitted that there is no evidence to support the Applicant 's generalised allegations of misconduct.
4. On the basis of the Applicant 's submissions, and the University's response, the specific conduct that is alleged to have constituted a failure to exercise a function under the GPA Act in good faith can be summarised as follows:
5. Ms Jodi Dickson: The Applicant makes a number of serious allegations that Ms Dickson, who as mentioned above is the Director, Workplace Relations at the University, exercised functions under the GIPA Act to conceal and undermine the Applicant 's access to information. The Applicant submitted that the email from Ms Dickson dated 22 August 2018 (which is set out at [67] above) demonstrates that she was attempting to improperly influence the outcome of the Applicant 's access application and furthermore, directing one of the University's senior in-house lawyers, Mr Stewart, to prevent the Applicant's access to that information by making an improper claim for LPP.
6. Next, the Applicant submitted that Ms Dickson's 'bad faith' in relation to the Applicant 's access request can be discerned from an email chain dated 23 October 2018 between her, Mr Stewart and the archives manager, Mr Robinson, (which is set out above in my discussion of the Applicant's case) in which Ms Dickson was provided with a copy of the documents released to the Applicant in response to the first access application. The Applicant submitted that Ms Dickson violated her 'privacy rights' by seeking access to her personal information in those documents. The Applicant then submitted that Ms Dickson's 'subjective bad faith' and hostility towards the Applicant - and her rights under the GIPA Act - is evident from her (brief) email to Mr Stewart dated 23 October 2018 (which is set out at above).
7. Against this, the University submitted that Ms Dickson was not exercising a function under the GIPA Act in relation to the email dated 22 August 2018 because firstly, it predates the first access application, dated 26 September 2018, and accordingly there is no nexus between the conduct and the reviewable decision. Secondly, that Ms Dickson was not exercising any of the specific functions under the Act (outlined above) in relation to the application in that email because she not conducting a search under s53, or deciding the application under ss 57-58.
8. In relation to email chain dated 23 October 2018, the University submitted that the Applicant has not identified what function Ms Dickson was exercising under the GIPA Act in accessing information released to the Applicant in a previous GIPA request (even if that included the Applicant 's personal information). It further submitted that there was nothing improper about Ms Dickinson seeking access to the documents released in response to a previous GIPA Act application because documents released under the GIPA Act are taken to have been released to the public at large without any restrictions: ss15(e) and 73 of the GIPA Act; Danis at [86].
9. Next, the University submitted that, in any event, neither email chain was evidence that Ms Dickson was obstructing the Applicant's access to, or concealing documents that responded to, the application.
10. Mr Dominic Stewart: In essence, the Applicant submitted that Mr Stewart acted in bad faith by making an improper claim for LPP in relation to information sought by the Applicant; acted in concert with Ms Dickson to conceal that information (the email chain dated 22 August 2018 (set out above at [67]]); and improperly sought and was given a copy of information previously released to the Applicant without her consent (email dated 4 April 2019 from Mr Robinson to Mr Stewart, enclosing the relevant information).
11. Put against this, the University submitted firstly, that in relation to the conduct recorded in the email of 22 August 2018, Mr Stewart was not exercising a function under the GIPA Act because his email predated the GIPA Act application. Secondly, that the email chain dated 4 April 2019 related to the Applicant 's complaint to the ICAC and not the Applicant 's access application and did not involve the exercise of a function under the GIPA Act. Thirdly, and in an event, that the email chains were not evidence of the serious allegations of bad faith and misconduct by Mr Stewart as alleged by the Applicant.
12. Mr Frank Strbik: In essence, the Applicant submitted that Mr Strbik exercised a function under the GIPA Act in bad faith in an email exchange with Ms Dickson dated 30 January 2019 (set out at [74] above) in which he says he is trying to locate a copy of the Applicant's CV. The Applicant contends that the email demonstrates that Mr Strbik was acting in concert with Ms Dickson to conceal information and, by searching for a copy of the Applicant 's CV, he had violated the Applicant 's right to privacy in exercising a function under the Act.
13. As against this, the University submitted while it is arguable Mr Strbik was exercising a function under s53 of the GIPA Act by undertaking searches for information applied for by the Applicant, there is no evidence that he did not exercise those functions in good faith.

Consideration

1. I can dispose of the s112 referral issue about whether the nominated persons employed by the University have failed to exercise a function in good faith shortly. In doing so, I do not consider it necessary to address the disagreement between the parties as to the correct interpretation of s112 to the specific conduct alleged. That is because even if I consider all of the conduct alleged to involve the exercise of a function under the GIPA Act, the circumstances and evidence set out above, cumulatively considered, falls well short of establishing that Ms Dickson, Mr Strbik or Mr Stewart exercised any statutory function under the GIPA Act other than in good faith.
2. I will now turn to the specific allegations against each officer.
3. Ms Dickson: As I have already found above in relation to para (e),of the Note in s12(2), some of the comments in Ms Dickson's emails of 22 August 2018 were incautious and inelegant. However, in my view, based on all of the material before the Tribunal, I am not satisfied that there is evidence sufficient to support a conclusion that she was attempting to influence the outcome of the access application; conceal documents relating to the recruitment decision, including concealing the sharp views expressed in her email of 22 August 2018, or directing Mr Stewart to claim the documents were privileged as a device to avoid disclosure. Nor does any of the evidence before me support a conclusion that the emails sent by Ms Dickson had the practical effect of interfering with the proper discharge by officers of the University of their obligations in dealing with and determining the Applicant 's access applications. To similar effect, there is no rational basis on which the Tribunal could conclude that Ms Dickson, in receiving information about the Applicant 's previous access applications in the email chain of 23 October 2019, was obstructing the release of information to the Applicant, or involved the exercise of any other function under the GIPA Act in bad faith even if, as the Applicant alleges, her access was in breach of the Applicant's privacy rights.
4. Mr Stewart: In my view, the Applicant has made a number of serious allegations against Mr Stewart, without proof. In his email of 22 August 2018, Mr Stewart acknowledges receipt of the emails from Ms Dickson about the recruitment process and possible GIPA Act application; makes the uncontroversial statement that the University "may be able to seek an exemption from GIPA" but that the University "can't stop an application being made". There is nothing in that email or any of the other material before the Tribunal that supports the Applicant 's allegations that Mr Stewart exercised a function under the Act in bad faith. As to the allegation that Mr Stewart made an improper and unlawful claim for LPP under direction from, or in concert with Ms Dickson (or on his own initiative) in order to conceal information from the Applicant, or cover up the alleged misconduct by Ms Dickson and others in relation to the recruitment process or the University's investigation of the Applicant 's complaints, there is no evidence to support that conclusion, for the reasons I have given above.
5. Mr Strbik: The allegations against Mr Strbik do not rise above the level of suspicion or assertion. There is nothing in the email exchange dated 30 January 2019 that is reasonably capable of supporting the conclusion or inference that Mr Strbik, in searching for an email attaching the Applicant 's CV, was not exercising a function under the GIPA Act in good faith. It cannot be said that the comments made in Mr Strbik's email to the recruitment consultant about the suitability of the Applicant for employment with the University (set out at [66] above) involved the exercise of a power or function under the GIPA Act.
6. As outlined above, the Tribunal's jurisdiction to refer a matter to the relevant Minister is limited to that set out under s112 of the GIPA Act. The Applicant's submissions that some of the documents already disclosed suggests serious maladministration within the University in relation to its recruitment processes, complaints handling and investigation processes and other allegations of misconduct by senior staff are issues that are outside the Tribunal's jurisdiction.
7. Using the language of the Appeal Panel in Warren, referring a matter to the Minister under s112 would be a grave step reserved for very rare cases. This is not such a case. For the reasons I have given above, I am not satisfied on the material before me that any of the nominated officers has failed to exercise a function under the GIPA Act in good faith.

Conclusion and orders

1. For the reasons given above, I have concluded that the correct and preferable decision is to withhold disclosure of the emails listed in items 1, 2 and 7 of the Schedule (except for item 1.7) and for the documents identified at Items 1.7, 3, 4, 5 and 6 of the Schedule to be released to the Applicant within 28 days of the publication of these reasons.
2. Accordingly, the Tribunal Orders that: 1. The decision under review dated 2 April 2020 is varied to the following effect: 1. Items [1.7], [3], [4], [5], and [6] listed in the Schedule be released to the Applicant within 28 days of these orders. 2. the decision under review is otherwise affirmed. 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of: 1. the material filed by the respondent on a confidential basis, 2. those paragraphs of these reasons identified as [NOT FOR PUBLICATION], 3. the submissions made in private before the Tribunal, and 4. the record of that part of the proceedings conducted in private pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, is prohibited. That material is not to be released to the Applicant or the public. 1. Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) 1. The Applicant is to be identified by the pseudonym 'EMC' at all times in this decision and in the proceedings generally. 2. The identity of the Applicant is not to be disclosed by the Respondent, or by any other persons and she is to be referred to as 'EMC.'

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

Amendments 16 August 2021 - Fixed gaps formatting on coversheet. 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: 16 August 2021