Gordon v University of Sydney

Issues 10There are 4 matters in issue in this application. They are: (a) whether the email exchanges in dispute are documents 'held' by the respondent, (b) whether the email exchanges in dispute, are exempt documents by reason of containing information that falls under clause 6 (personal affairs), or clause 13(b) (information obtained in confidence) of Schedule 1 of the FOI Act , (c) in the event the email exchanges are found to be exempt documents, whether it is nevertheless the correct and preferred decision to grant the applicant access to these documents (see University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 ) , and (c) whether the applicant could be provided with a copy of the emails with the exempt matter deleted (subsection 25(4) of the FOI Act). 11For the reasons set out below, I have found that the emails are documents 'held' by the respondent and that they contain information that is exempt under clause 6 of Schedule 1 of the FOI Act. I have also found that there is no material to justify the exercise of the override discretion, however I have determined to set aside the decision of the respondent and remit the decision for reconsideration in regard to: (a) that part of the information I have found to relate to expressions of concern to the persons who authored and received the email exchanges and (b) whether the applicant could be provided with a copy of the email exchanges with the exempt matter deleted. 12By reason of section 55 of the FOI Act and section 75(2) of the Administrative Decisions Tribunal Act 1997 part of paragraphs 58 and 79 in these reasons for decision are confidential and not to be disclosed to the public or the applicant and his legal representative. These parts are identified in brackets in bold type.

Description of the documents in issue 13The respondent has described the authors and/or recipients of the email exchanges as 'respondents' and identified them by the letters A to H and P. For the purpose of this decision I have not used the description of 'respondent' as I have found this to be confusing. Instead, I have described them collectively as 'authors and/or recipients'. 14The respondent has also identified for each author and/or recipient the institution to which he/she belongs and nature of the position held by him/her within that institution. That description is in the following terms: P Director Brain & Mind Research Institute A Officer of the Mental Health Council of Australia B Staff of Member of Parliament C Private consultant D Senior Academic of the respondent E Senior Academic University of Melbourne F Senior Academic Monash University G CEO, NGO in drug treatment and mental health H CEO, NGO in mental health 15As I have indicated, the emails in issue are dated between 9 and 18 March 2010 and concern comments about the Church of Scientology and mental health treatment. The respondent has grouped these exchanges as follows: Item 2: P and B exchange 9 March Item 3: C, D, E and F exchange copied to P 11 March Item 4: A, D, E, G and H exchange 11 March Item 5: E and F copied to P and C, G and H 11, 12, and 15 exchange March Item 6: E, D, G and H copied to P and F 11 and 18 March exchange

Relevant legislation 16Section 16 of the FOI Act gives every person a legally enforceable right to be given access to an 'agency's documents' in accordance with the provisions of the Act. An 'agency's document' is defined in subsection 6(1) to mean 'a document that is held by the agency'. 17Paragraph 6(2)(e) of the FOI Act provides that for the purposes of the FOI Act, a reference to a document held by an agency includes 'a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person who in his or her capacity is the officer of the agency.' 18Section 25 of the FOI Act sets out the circumstances in which an agency can refuse a person access to a document the person requested under section 17. One such circumstance is where the document is an 'exempt document': see paragraph 25(1)(a). An 'exempt document' is defined in section 6 to include 'a document referred to in any one or more of the provisions of Schedule 1.' 19For the purpose of this application the relevant provisions in Schedule 1 of the FOI Act are clauses 6 and 13. These sections provide as follows: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 13 Documents containing confidential material A document is an exempt document: (a) ..., or (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest 20Subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give the FOI applicant a copy of the document with the exempt matter deleted and the FOI applicant would wish to be given such a copy. 21Division 2 of Part 3 of the FOI Act makes provision for consultation by an agency before it grants access to documents that contain information falling within the terms of clauses 5, 6, 7 and 8 of Schedule 1 of the FOI Act. Section 31 in this Division relates to those documents containing information falling within clause 6. That section provides as follows: 31 Documents affecting personal affairs (1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or deceased). (2) An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1. (3) If: (a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and (b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1, the agency shall: (c) forthwith cause written notice to be given to the person concerned: (i) that the agency has determined that access to the document is to be given, and (ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and (iii) of the procedures to be followed for the purpose of exercising those rights, and (d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of. (4) If: (a) an application is made to an agency for access to a document to which this section applies, and (b) the document contains information of a medical or psychiatric nature concerning the applicant, and (c) the agency is of the opinion that disclosure of the information to the applicant may have an adverse effect on the physical or mental health of the applicant, and (d) the agency decides that access to the document is to be given, it is sufficient compliance with this Act if access to the document is given to a registered medical practitioner nominated by the applicant. (5) A reference in this section to the person concerned is, in the case of a deceased person, a reference to that person's closest relative who is of or above the age of 18 years 22Section 61 of the FOI Act provides that the onus is on the respondent to establish that its determination is justified. However, the respondent only needs to establish that one of the exemptions applies.

Evidence 23The respondent tendered into evidence two affidavits, each of which was sworn on 4 February 2011. One affidavit is that sworn by Mr Colin Streeter, the Director of Human Resources of the respondent. Mr Streeter also gave oral evidence and was cross-examined by the applicant's counsel, Mr Zipser. 24The other affidavit is an affidavit sworn by Mr Timothy Robinson, the Manager, Archives and Records Management Services of the respondent. In his affidavit, Mr Robinson provided some evidence in confidence and as a consequence only that part of his affidavit, which did not contain confidential evidence was provided to the applicant and tendered into evidence as an exhibit. A full copy of the affidavit of Mr Robinson was provided to the Tribunal in confidence, together with some additional evidence and a copy of the email exchanges that are in dispute: see section 55 of the FOI Act. 25The applicant tendered into evidence an affidavit sworn by his solicitor, Mr Kevin McMaster Rogers. Attached to that affidavit are a copy of the 2007 email exchange and the determinations of the respondent in regard to the applicant's application. 26Both parties provided detailed written submissions. The Information Commissioner also provided written submissions. These were made in the context of the GIPA Act and related to the issue as to whether the documents in issue were 'held' by the respondent. 27Pursuant to section 55 of the FOI Act, the hearing of this application was held, in part, in confidence in the absence of the applicant and his legal representatives.

Are the documents 'held' by the respondent? 28There is no dispute that Professor Hickie's computer, in which the email exchanges were located, is part of the respondent's computer system. Nevertheless, the respondent contends that the emails are personal documents of the recipients and authors of the emails and therefore not 'held' by the respondent in the relevant sense of paragraph 6(2)(e) of the FOI Act. 29The respondent's argument is based on issues of fact and the construction of paragraph 6(2)(e). It is contended that paragraph 6(2)(e) 'recognises that there will be circumstances where there are documents that are physically located at an agency's premises or within its electronic systems that are not documents to which section 16 applies. Such documents relevantly include correspondence entered into in a personal capacity.' 30In my view, while there may be circumstances where documents physically located within an agency may not fall within the description of documents 'held' by the agency, the construction proffered by the respondent is not supported by the ordinary words of paragraph 6(2)(e) of the FOI Act. That paragraph prescribes 2 circumstances where a document will be 'held' by an agency for the purpose of the FOI Act. These are (a) where the agency has an immediate right to access, and (b) where the document is in the possession, or under the control, of a person in his or her capacity as an officer of the agency. There is nothing in the terms of these descriptions to suggest that a document that is personal or private is not a document 'held' by the agency. Nor can the phrase 'immediate right to access' be narrowly construed in the manner suggested by the respondent. The phrase should be given its ordinary meaning and it will be a question of fact whether an agency does or does not have immediate access to a particular document. To construe it narrowly as suggested by the respondent would mean that there would be many documents which are part of an agency's record which would not fall within the terms of the FOI Act. This is clearly contrary to the objects of the FOI Act and it would seem to render the personal affairs exemption in clause 6 of Schedule 1 of the FOI Act to have very limited effect. 31Nevertheless, as I have said, it is a question of fact as to whether these email exchanges are held by the respondent in the relevant sense. The respondent argues that they are not so held. 32In support of this argument, the respondent relies on its 'Information and Communication Technology Resources Policy' (ICT Resources Policy), and the decision of Western Australia Information Commissioner in Swift v Shire of Busselton [2003] WAIRCmr 7. 33The respondent's ICT Resources Policy expressly permits limited minor and incidental personal use of the ICT resources of the respondent. This includes minor and incidental personal use of the respondent email system. It was contended that the email exchanges in dispute were sent and received as part of this personal use of the ICT Resources Policy and on the basis of the principles set out in Swift, they were private and not 'held' by the respondent. 34I am not at all persuaded by the arguments of the respondent. 35A copy of the ICT Resources Policy was attached to the affidavit of Mr Streeter. Section 4 of the Policy states that it applies to 'all Users of the University's ICT Resources'. Section 5 of that Policy deals with the conditions of use of the respondent's ICT Resources. At the final paragraph, paragraph t), it is stated that 'Limited minor and incidental personal use may be allowed.' The paragraph goes on to state that: 'Users should be aware that personal use of the University's ICT Resources may result in the University holding personal information about the User and/or others which may then be accessed by the University to ensure the compliance with this, and other policies.' 36Paragraph (a) of Section 6 in the Policy states: 'Use of ICT Resources is not considered private. Users of ICT Resources should be aware that they do not have the same rights as they would using personally owned equipment through commercial service providers' 37Paragraph (c) of Section 8 in the Policy states: 'Email and other records stored in ICT Resources may be the subject of a subpoena, search warrant, discovery order or application under the NSW Freedom of Information Act 1989. ...' 38In my view, while the Policy allows incidental personal use of the respondent's email ICT Resources, it does not state that emails created and received as a result of this personal use will be a document that is held by the person concerned and not the respondent. On the contrary, as I have identified above, paragraph (t) of the Policy expressly states that documents created and received through personal use are nevertheless, held by the respondent on its ICT resources. This does not change the personal nature of such emails, but as the Policy states, they will be subject to the FOI Act. Furthermore, the respondent's right to audit and monitor the use of its ICT Resources to ensure compliance with the Policy (see at Section 6(d) of the Policy) makes no distinction between those documents created, or received through personal use and those created and received through official use of the ICT resources. While Mr Streeter gave evidence that access to individual email accounts requires approval of the respondent's Chief Information Officer or General Counsel and there is no ongoing monitoring, in my view this does not alter the position as set out in the respondent's ICT Resources Policy, that all emails on the respondent's email system are immediately accessible to the respondent. Accordingly, I find that the respondent has an immediate right of access to the email exchanges in dispute and that they are 'held' by the respondent within the meaning of paragraph 6(2)(e) of the FOI Act. 39The decision of the Western Australian Information Commissioner in Swift is also of no assistance to the argument of the respondent. The documents at issue in that decision were notes prepared by the Shire President, on loose pieces of paper, during an official in-camera discussion between the elected officials of the respondent Council and a copy of pages from a note book kept by the Shire President. The respondent in that matter argued that the documents were not a 'document of the agency'. 40As pointed out by the respondent, subsection 10(1) of the Freedom of Information Act 1992 (WA) (WA FOI Act), is the equivalent provision to section 16 of the FOI Act and uses the term 'documents of an agency' and not 'an agency's document' and each are defined slightly differently (see clause 4(1) of the Glossary in Schedule 2 to the WA FOI Act). 41Nevertheless, what was in issue was whether the Shire President was an officer of the respondent agency and whether the documents were under the control of the respondent agency. At [16] the WA Information Commissioner found that the Shire President was an officer of the respondent agency and at [34] he found that the document's, other than the pages from the note book, were under the control of the respondent agency. 42In regard to the note book, the WA Information Commissioner said the following: 35. ...[I] have carefully read and considered the contents of Document 187, which comprise extracts from the Shire President's notebook. The notebook contains entries dating from 1995, which are clearly personal and unrelated to the role and function of Shire President. Some of the parts of that notebook, which are covered by the terms of the complainant's access application, were written by the Shire President while she was on holidays. In my view, the notebook is more like a personal diary. It contains a substantial amount of personal information, within which is mixed some information about things done by her as the Shire President 43In my view, the email exchanges that are the subject of this application cannot be likened to the note book that was the subject of the decision in Swift. The undisputed evidence is that the email exchanges in this application were created, received and retained on the respondent's ICT resources: see Re Allan N Healy and The Australian National University [1985] AATA122 (23 May 1985) at [16] and [17]. 44Accordingly, I find that the documents in issue are held by the respondent and are subject to the provisions of the FOI Act.

Are the documents exempt documents? 45I have considered all the material that is before the Tribunal, including that which has been provided in confidence. While the respondent only needs to establish that the documents contain information falling within one of the exemptions in Schedule 1 of the FOI Act in order for the document to be an exempt document, for completeness I have considered each of the exemptions relied upon by the respondent.

Clause 6 exemption - personal affairs 46There are two aspects to this exemption. First, whether the disclosure of the information contained in the document will 'involve' the disclosure of information concerning the 'personal affairs' of a person other than the FOI applicant. There can however, only be a disclosure of 'personal affairs' if the document is capable, either directly or indirectly, of identifying the person whose personal affairs are mentioned. 47The other aspect is whether the disclosure of the information concerning the person's personal affairs is 'unreasonable'. 48The term 'personal affairs' is not defined in the FOI Act. It is clear from the numerous cases on what is and is not information concerning the personal affairs of an individual, that the term 'personal affairs' cannot be precisely or exhaustively defined: see Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 436 . It has been held that it should be given its ordinary dictionary meaning, namely, 'matters of private concern to an individual': see Re Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 per Beaumont J at 221-222; Young v Wicks (1986) 13 FCR 85 per Beaumont J at 89. 49In Commissioner of Police v District Court of New South Wales (Perrin's case) (1993) 31 NSWLR 606, at 625, Kirby P suggested that the ordinary dictionary meaning may be too narrow and held that: 'In its context, the words 'personal affairs' mean the composite collection of activities personal to the individual concerned.' 50In Colakovski, at 436, Lockhart J said it would be unwise to substitute for the word 'personal' some other word such as the word 'private.' His Honour explained that the word 'private' tends to connote confidential or not widely known, while the term 'personal affairs' is not confined to 'affairs that are private, in the sense of secret to the person.' 51Information that is in the form of a person's name and address may be part of their personal affairs, even where the person's name and address is otherwise widely known. It depends on the context in which the information is contained. In Perrin's case the Court of Appeal found that the names of the policemen, who had prepared a report to the Queensland Criminal Justice Commission and whose names were recorded on the report, was not information that concerned the personal affairs of those officers. In Perrin , at 625, Kirby P said that the preparation of the report had occurred in the course of the performance of their duties as police officers and disclosure of their names was no more than the disclosure of the identity of the officers of the agency performing their duties. 52Information in the form of 'expressions of privately-held concerns' that are not made in the course of the exercise of official responsibilities has been held to be information concerning the personal affairs of the persons' making such expressions of concern: see Chief Executive Officer, State Rail Authority v Woods [GD] [2003] NSWADTAP 25 at [31]. 53Information concerning matters in pursuit of a person's vocation will not amount to 'personal affairs' of that person, unless it concerns matters that are personal to that person such as the person's state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations: see Re Enid Freda Bleicher v Australian Capital Territory Health Authority [1990] FCA 290 at [24]; 96 ALR 732/12 AAR 246/20 ALD 625 24 FCR 497 (13 August 1990). In Bleicher , Wilcox J said, following the decision of the Full Federal Court in Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 8 AAR 544, that: 'matters related to the pursuit of a vocation and "personal affairs" are not necessarily mutually exclusive categories' (see also Thompson v Department of Infrastructure [2003] VCAT 44 and Ambikapathy v Victorian Legal Aid [1999] VCAT 136). 54Ultimately, it is a question of fact in every case as to whether the information in issue is or is not information that concerns the personal affairs of a person other than the FOI applicant: see Perrin's case per Clarke JA at p 644 and Re French (1987) 12 ALD 525. In determining whether the information in issue concerns the personal affairs of a person, regard must be had to the content of the information and the context in which it appears. 55I accept, having regard to the content of the emails and the evidence before the Tribunal that the email exchanges were obtained in confidence. Many emails are expressly stated to be confidential and intended only for the named recipient(s). However, as I have indicated from the authorities cited above, this alone does not mean that the information contained in the emails concern the personal affairs of the authors or recipients of the emails. What must be shown is that the document contains information, the disclosure of which will involve a disclosure of information 'personal' to the individuals concerned. 56The respondent has described each author and recipient of the email exchanges by reference to their position in the organisation within which they are employed or profession in which they are engaged (see paragraphs 13 and 14 above). As to the content of the emails, the respondent has described these as an exchange of views between professional colleagues. I agree with the respondent that these descriptions appear to be inconsistent with the contention that the email exchanges containing information the disclosure of information concerning the personal affairs of the authors and/or recipients of the email exchanges. 57Although the email exchanges are between professional colleagues, this does not mean that the content of the email exchanges are also professional in nature. In my view, having regard to the content of the emails and the other material before the Tribunal, the contents of the email exchanges includes (a) information that concerns the personal affairs of the authors and recipients of the email exchanges and (b) information that is an expression of professional opinion about the treatment of mental health. These expressions of professional opinion, in my view, do not fall within the terms of clause 6. However, on the basis of the content of the information that does concern the personal affairs of the authors and recipients, I find that the disclosure of the information that would identify the persons who have expressed, or affirmatively acknowledged or supported these expressed opinions would be a disclosure of that person's personal affairs. 58I make this finding, not on the basis of what is contained in the expression of professional opinion, but on the basis of the information contained in the email exchanges, which are expressions of personal concern by particular authors and recipients of emails that are part of the email exchanges. This information includes the actual expressions of personal concern and the names of those who have expressed such concerns. [confidential] . 59On the basis of the material before the Tribunal, I find that the expressions of personal concern are common to each author and recipient of an email in the email exchanges, even though the author or recipient has not expressed such concerns in the email they sent or received. Accordingly, I find that the disclosure of the information that identifies each author and recipient would involve the disclosure of information that concerns the personal affairs of such persons. While the respondent has provided a description of the authors and recipients in the email exchanges, these descriptions do not go so far as identifying the author and recipient of each email. 60In summary, my findings are that the disclosure of the information contained in these email exchanges that relate to (a) the expressions of personal concern and (b) the identify of each author and recipient of the emails in the email exchanges is information concerning the personal affairs of the author(s) and/or recipient(s) of each email. 61Having made this finding, the question is whether disclosure of this information concerning the personal affairs of each author and recipient of an email in the email exchanges would be 'unreasonable'. 62In regard to the issue of 'unreasonable' disclosure for the purpose of the clause 6 exemption, the Tribunal has followed the principles set out in the decision of the Administrative Appeals Tribunal (AAT) in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257, at [51]. In that decision the AAT said: '[51] ... [ Whether] disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance.' 63I note the evidence of Mr Timothy Robinson. In his open evidence Mr Robinson identifies the essence of the responses of the authors and recipients of the email exchanges as part of the respondent's consultation under the FOI Act. In his open evidence, Mr Robinson has not identified the persons from whom the respondent received a response. On examining the evidence of Mr Robinson, received in confidence, I am satisfied that the responses were from persons who were an author or recipient of an email in the email exchanges. 64The respondent has argued that these responses should be disregard as they are hearsay. In my view, there is nothing to suggest that the responses are anything other than genuine. While they were obtained prior to the respondent having made its initial determination, they are sufficiently detailed from which it can be inferred that each respondent objected to his or her personal affairs being disclosed. 65I do not propose to make any conclusive finding in regard to the question as to whether it would be an unreasonable disclosure of the expressions of personal concern were to be disclosed. In some instances the disclosure of this information may amount to an unreasonable disclosure of this information, however there are other instances where the disclosure of this information may not amount to an unreasonable disclosure, as the information is arguably also a matter of general concern to the public. In my view this is a matter that is more appropriately dealt with by the respondent on a reconsideration of its decision in so far as it relates to this information. I have dealt with this issue in more detail below. 66However, I do conclusively find that the disclosure of the information contained in the email exchanges that may lead to the identification of the author and recipient of each email would be an unreasonable disclosure of that information. As explained above, I have found this information to be information concerning the personal affairs of each author and recipient. While the respondent has provided a description of the authors and recipients in the email exchanges, these descriptions do not go so far as identifying the author and recipient of each email. 67On the basis of my findings that the information contained in the email exchanges, which may lead to the identification of the author and recipient of each email, is information concerning the personal affairs of such person and that the disclosure of that information would involve an unreasonable disclosure of that information, I am satisfied that the respondent has established that the email exchanges are exempt documents under clause 6 of Schedule 1 of the FOI Act.

Clause 13 (b) exemption 68There are 3 aspects to the exemption contained in clause 13(b) of Schedule 1 of the FOI Act. 69The first aspect is that disclosure of the email will disclose information obtained in confidence. It is well accepted that the necessary quality of confidence may be inferred from the nature of the information, 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]. I have already accepted the evidence of the respondent that the emails, the subject of this application, were sent and received in confidence (see paragraph 55 above). 70The second aspect of the clause 13(b) exemption is that, disclosure of the information could 'reasonably' be expected to prejudice the future supply of such information. In Director-General Department of Education and Training v Mullett [2002] NSWADTAP 13, at [58] the Appeal Panel said the following in regard to this requirement: '58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: 'The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 71It is the evidence of Mr Streeter that the respondent has a policy of ensuring that staff and students have access to confidential channels of communication in order to encourage the free exchange of information and views, between academic colleagues within and outside the respondent and between management, staff and students. I have also been provided with confidential evidence in support of this evidence of Mr Streeter. However, I am not persuaded by the general nature of this evidence that it satisfies the requirement that disclosure of email exchanges of the nature the subject of this application would prejudice the future supply of such information to the respondent. In my view the evidence is not only very general but also equivocal in many respects. As pointed out by the Appeal Panel, what must be shown is the extent to which material of this kind 'can only be obtained, or can only reasonably be obtained, by confidential communication.' This being an objective and not subjective assessment. In my opinion, the evidence of the respondent fell short of meeting this requirement. 72In the event I am wrong in regard to my findings on the second aspect of clause 13(b) exemption, I would nevertheless find that the respondent has failed to establish that it would, on balance, be contrary to the public interest to disclose the emails. In this regard I note the matters set out in section 59A of the FOI Act, which are of no relevance to determining this issue. While these are not matters relied on by the respondent, they are nevertheless relevant when determining this issue. 73Accordingly, I find that the respondent has not established that the email exchanges are exempt by reason of containing information falling within clause 13(b) of Schedule 1 of the FOI Act.

Residual Discretion 74In University of New South Wales v McGuirk [2006] NSWSC 1362, at [102] Nicholas J said: '102 In my opinion s 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.' 75In Cianfrano v Director General Premier's Department [2007] NSWADT 216, at [24], the President set out some guiding principles relevant to the exercise of this residual discretion. These principles have been accepted in subsequent decisions of the Tribunal: see Lawrence v Port Stephens Council [2008] NSWADT 243 at [30] and Thompson v Ministry of Transport [2009] NSWADT 185 at [38] to [43]. The principles however are not of universal application to all documents that are found to be exempt (see McGuirk v University of New South Wales [2009] NSWCA 321 at [29]; (2009) 75 NSWLR 224) , but they are applicable in circumstances where a document is found to be exempt under clause 6 and 13(b) of Schedule 1 of the FOI Act. 76In my view, having regard to the nature of the information that I have found to fall within the clause 6 personal affairs exemption, there is no evidence justifying the overriding of the exemption. As I have indicated the information relates to matters of personal concern to the authors and recipients of the email exchanges in dispute. Nor has the applicant's evidence or submissions identified any overriding public interest in the disclosure of this information. 77Accordingly, I find there is no basis on which to exercise the residual discretion.

Subsection 25(4) - copy of email exchanges with exempt matter deleted 78As I have indicated, subsection 25(4) of the FOI Act provides that an agency shall not refuse access to an exempt document if it is practicable to give the FOI applicant a copy of the document with the exempt matter deleted and the applicant would wish to be given such a copy. 79As this is not an issue on which I have heard any argument, nor does it appear that the respondent has considered this issue, it is appropriate, given the nature of the information that I have found to be exempt that the respondent be given an opportunity to consider this issue. In doing so I recommend that the respondent undertake further consultation in accordance with section 31 of the FOI Act. As part of that consultation process the respondent should reconsider whether a disclosure of the information relating to the expressions of personal concern as contained in the email exchanges would be an unreasonable disclosure in the circumstances where the information associating the author and the recipient in the email exchanges has been found to be an unreasonable disclosure of information concerning the personal affairs of such persons. [confidential] . 80As it is a matter for the respondent to determine, on reconsideration, whether it is practicable to provide the applicant with a copy of the email exchanges with deletions of the information that I have found to be exempt and that which the respondent may determine to be exempt on reconsideration under clause 6. This I note may involve a need to determine whether such a copy is to be provided without identifying the particular Item of email exchange as set out in the decision of the respondent that is the subject of this application.

Conclusions and orders 81For the reasons set out above, in my view the decision of the respondent that is the subject of review in File No 103236 is not the correct and preferred decision and should be set aside and remitted to the respondent for reconsideration under paragraph 63(3)(d) of the Administrative Decisions Tribunal Act 1997 in accordance with my findings and recommendations in these reasons for decision. As I have indicated, that reconsideration is limited to the following issues: (a) whether disclosure of the information relating to the expressions of personal concern in the email exchanges would be an unreasonable disclosure under clause 6 of Schedule 1 of the FOI Act and (b) whether, pursuant to subsection 25(4) of the FOI Act, it is practicable to provide the applicant with a copy of the email exchanges with the exempt matter deleted. 82In light of the applicant having made a request for access to the same email exchanges under the GIPA Act, I encourage the respondent to take an approach in its reconsideration of its decision that are consistent with the objects of that Act and the FOI Act. 83In regard to the decision that is File No 103331, it is appropriate for that matter to proceed after the respondent has had an opportunity to reconsider its decision that is the subject of File No 103236. In light of this the application that is File No 103331 is set down for further directions on 2 February 2012 at 9.30am.

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: 25 November 2011