Victorian Civil and Administrative Tribunal|2003-05-16

Hoskin v Department of Education and Training [2003] VCAT 946 (16 May 2003)

1. This is an application by Rodger Hoskin seeking to obtain access to documents pursuant to the Freedom of Information Act 1982. These documents are held by the Department of Education and Training.

2. The applicant is a teacher employed by the Department at the Glen Waverley Secondary College. He commenced such employment in approximately January 2000. Prior to that time he was a teacher at the Glen Eira College between January 1997 and December 1999.

3. The background to this dispute is contained in an affidavit sworn by Darrell John Fraser who is the principal at Glen Waverley Secondary College. Fraser gave sworn evidence at the hearing and tendered a witness statement (Exhibit 1).

4. In that statement he deposes to having during the year 2000 received information from staff at the College in relation to the unsatisfactory and inappropriate conduct of the applicant during the course of carrying out his duties. Those allegations included:

(i) Speaking to staff in a rude, loud, aggressive and/or disparaging manner;

(iii) Non-cooperation in the development and distribution of teaching and assessment materials;

(v) Allegations by the applicant that he had been ambushed and falsely imprisoned during a meeting held on 29 February 2000;

(vi) Allegations that he had screwed up and thrown a written assessment proposal at another teacher.

5. The applicant seeks access to documents which he describes as "relating to his future to teach in particular:

Firstly, the medical report and any associated correspondence prepared by Dr Strauss. Secondly, any correspondence about the applicant for or on behalf of the Principal of Glen Waverley College to Dr Strauss in relation to the applicant's fitness to teach. Thirdly, any correspondence about the applicant with the Ethics Unit of the Department of Education and Training and the Principal of Glen Waverley Secondary College or his nominee.

6. Fraser deposes that he set in motion a course of conduct to deal with the applicant's behaviour. A number of people from the school were involved. In addition to Fraser there were Acting Principals Schiller and Peck. It would appear as a result of this initial action it was recommended that the applicant consult the school psychologist but he refused to do so. However, it would appear that he received some performance counselling as a result of which the view was taken that he had modified his conduct in the latter part of 2000 and the early part of 2001.

7. However, it appears that from approximately mid 2002 Fraser became aware that the applicant had approached a psychologist employed at the College and subsequently approached Schiller with an oral complaint about the conduct of another teacher at the school. That conduct involved female students. The substance of the applicant's complaint was to the effect that the teacher may have sexually harassed or otherwise engaged in inappropriate interactions with female students at the College.

8. A complaint of this nature was of course a serious matter and Fraser decided to conduct a thorough investigation of the matter when school resumed for Term 3 which was 15 July 2002.

9. The investigation was conducted by Fraser together with Schiller and Peck and the school's psychologist was also involved.

10. In all, there are 11 documents which are in dispute between the parties. Document No. 1 set out in the materials filed by the respondent was in fact inadvertently included and is not in issue. However, on the day of the hearing a further document was added to the list and this relates to events which took place at the school in the week beginning 24 July 2002. Subject to certain deletions this document has been supplied to the applicant. It is recorded as document No. 12 in the updated schedule.

11. The documents in dispute between the parties are set out in an amended schedule dated 6 February 2003. It is the position of the defendant that each of the documents in dispute is an exempt document under one or more sections of the Act, namely s.30(1) internal working documents; s.33(1) documents affecting personal privacy; s.35(1)(b) documents containing material obtained in confidence.

12. However, it should be noted that there have been concessions made with regard to many of the documents and these have been given to the applicant. For example, the report of Dr Strauss contains only a miniscule amount of material which is in dispute.

13. During the course of the hearing Fraser, Peck and Schiller all gave evidence and were subjected to cross-examination. The applicant did not give any evidence and in fact was not present during the course of the hearing. However, it was sought to tender an affidavit sworn by him on 30 January 2003 which is a document which relates to proceedings instituted by him in the Federal Court of Australia in proceedings V43 of 2003. I will return to the contents of that document in due course.

14. The enquiry which was undertaken commenced with Fraser writing to the applicant and asking that he put any allegations that he had in writing concerning the misbehaviour of the alleged offending teacher. This letter is dated 16 July 2002. The applicant respondent by letter dated 18 July 2002 in which he set out in detail two allegations of misconduct by another teacher with regard to two female students at the College. On 29 July 2002 the applicant was advised that his allegations had been investigated and that they had no substance and that he was to attend a medical examination on 5 August 2002. The two girls about whom the improper conduct was alleged to have occurred were interviewed on or about 22 or 23 July 2002.

15. The first category of documents relate to notes of interview with the two female students who I will call X and Y. They are documents No. 4 and 6 in the Schedule. With regard to these documents exemptions are claimed under s.35(1)(b) and s.33. It should be noted that there is a degree of confusion with regard to the schedule dated 6 February 2003. That document contains references to the documents in dispute and allocates a number to each. However the folder containing such documents which was provided to me has quite different numbers allocated to each. For example, the schedule refers to the two interviews as documents Nos. 4 and 6 whereas the documents relating to these interviews are numbered 6 and 7 in the folder. I have followed the numbering system set out in the schedule rather than that in the folder.

16. Section 35(1) of the Freedom of Information Act 1982 provides:-

"A document is an exempt document if its disclosure under the Act would divulge any information or matter communicated in confidence by or on behalf of a person or a Government to an agency or a Minister and

(b) A disclosure of the information would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future."

17. Document 4 are notes dated 22 July 2002 of an interview between student X and Schiller with the school psychologist, Sharon Rotstayn, also present. Document 6 is a similar document dated 23 July 2002 between Student Y and the Assistant Principal.

18. The first issue for determination is whether the information in these documents was communicated in confidence. The law with regard to this matter is, in my opinion, adequately and correctly set out in Thwaites v Department of Health and Community Services (1995) 8 VAR 361. This was a decision of Deputy President Macnamara. The passages with regard to this issue are set out in pps.366-367 of the reasons for decision.

19. In his affidavit Schiller said that the interview he conducted took place in his room with the door closed and that the information which was provided by the student was in confidence. His belief as this fact was based upon his recollection that he made it clear to the student that the discussions were confidential and that whatever the student told the people present would be for their use and would not be placed in the public domain. I have no reasons to doubt his evidence on that aspect. Indeed subject to the matters I have raised in paragraph 21 of this ruling, given the nature of the allegations an undertaking of confidentiality would, as a matter of common sense, be necessary in order to obtain the information. Furthermore, although the two matters are discrete, Schiller, in his affidavit, states that in his experience of these matters a need to assert the confidential nature is necessary to ensure that the student cooperates so that the process would not impair the ability of the Department from obtaining similar information in the future. In his affidavit he emphasises the need to maintain the confidence between the teacher and the school.

20. Document 6 is the record of the interview between Peck and Student Y. Peck deposes to the fact that it was conducted in her room and she said that "I am certain that I would have made it clear to the student that the applicant would not be seeing this document, but that she needed still to be absolutely truthful". She also made the same assertion as did Schiller as to the need to keep such a document confidential and that its release would be inimical to obtaining further information in the future.

21. There are a number of aspects which trouble me somewhat. Firstly, there is the absence of any reference of confidentiality in the statements themselves. On the authority this of course is not strictly necessary but is a factor which can be taken into account. Secondly, neither of the students were called to give evidence as to the confidential nature of the conversation. That is not conclusive, but may be a factor which mitigates against the argument that it was confidential. Thirdly, as was argued by Mr Willoughby Thomas the information provided by the students was not intended to be treated by the teachers as totally confidential. It was to be used and distributed between those conducting the investigation but would not be placed in the "public domain". Having given the matter careful consideration I do not agree that the fact that the communication was to be passed on to these various individuals involved in the investigation results in the communication not being one which has taken place in confidence. In my view it was a confidential communication restricted to those who are part of the procedures involved in the investigation. Fourthly I have difficulty in accepting that these teachers could responsibly give an undertaking of confidentiality in these circumstances. The nature of the complaint made by the Applicant had undertones of perhaps some more serious inappropriate conduct by the other teacher. Until the two girls were interviewed none of the teachers knew what the students would say. Assume for a moment that one or both of them made serious allegations of sexual impropriety by the teacher (which they did not) then the person conducting the interview would be placed in the position whereby they may have to breach any promise of confidentiality. Fifthly, in my opinion, the use by Schiller of the procedure set out in the legal complaints resolution process was inappropriate. The document, which is exhibited to his affidavit, does refer to students. Where, however, as here, the relevant teaching staff had in their possession a letter from the applicant setting out the nature of the allegations, the procedures including guarantees of confidentiality should have not been followed. I say that because to do so may have resulted in the giving of undertakings that may not have been able to have been fulfilled. Notwithstanding the above, I am satisfied on the balance of probability that the undertaking was given to each student and the information imparted by each was given in confidence. Further, I accept the disclosure would be contrary to the public interest because it would be reasonably likely to impair the ability of the senior teachers to obtain similar information in the future. In this case the information disclosed no complaint of a nature that would require it to be placed in the public domain. That, of course, was a fortunate outcome but I repeat what I have earlier indicated, namely that the procedures adopted were fraught with the danger of seeking material from each of the students on the basis of confidentiality when it may have turned out that it was impossible to adhere to such an undertaking. I find that each document, that is Documents Nos. 4 and 6 fall within s.35(1)(b) and are therefore exempt. I do so because I accept the reasons set out in paragraph 16 of the Schiller affidavit in which he deposes as follows:

"I am concerned about the disclosure of this document because I believe that such disclosure would undermine the relationship of trust and confidence that I have with students. Without this relationship of trust or confidence, I would not be able to resolve issues and deal with situations at the school which require me to find out information from students. Accordingly, I consider that disclosure of the document would impair my ability to obtain similar information in the future. Furthermore, the undermining of the relationship of trust and confidence would have a detrimental impact upon my ability to perform my job effectively.

It is my judgment that when a teacher seeks to obtain information of this nature not only is the issue of confidentiality important as a separate issue. So too is the need to maintain that position so as to ensure that students in a school would come forward and cooperate with any investigation which was carried out."

22. It is therefore unnecessary to deal with s.33. In respect to that section, however, I would accept that the information relates to the personal affairs of a person and I believe that having regard to all of the circumstances, disclosure of information would be unreasonable. I believe that the matters relate to the person affairs of each individual because they deal with allegations concerning the conduct of a teacher towards each of them. The documents deal with the manner in which a teacher has acted towards each of the individuals and the response of those persons. I do not believe that the fact that the other party is a teacher deprives the statements which were made as "relating to the personal affairs of any person". Nor do I believe that it is relevant that in those statements both individuals denied any wrong doing by the teacher concerned. Furthermore I am satisfied that it would be unreasonable to disclose what was said. The test of what is unreasonable involves the balancing of two competing public interests. The test of unreasonableness requires a consideration of all the circumstances including the reasonable likelihood of endangering the life or physical safety of any person. I do not believe that there is any such risk, however given the sensitive nature of the enquiries being made and the fact that they involved allegations of impropriety and deal with statements made by two students, they sit within the definition. In any event, as I have previously found they are exempt documents.

23. I turn to documents Nos. 2, 3, 7 and 12. It is asserted that these documents are exempt by reason of the operation of s.30(1) of the Act. That section is in the following terms:

"Subject to this section a document is an exempt document if it is a document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion advice or recommendation prepared by an officer or Minister or consultation or deliberation that has taken place between officers Ministers or an officer and a Minister in the course of or for the purpose of the deliberative processes involved in the functions of an agency or Minister or of the Government; and

In my opinion each of these documents fall within s.31(a).

24. It is clear that once the applicant made his complaints in writing about the conduct of another teacher three questions arose. Firstly, was there any basis for the allegation? Secondly, if there was not, what was the reason why one teacher would be making accusations against another. Thirdly, was this conduct due to some underlying problem which manifested itself not only in the making of the allegations but which would explain his conduct generally since he joined the school.

25. In respect of the question of documents falling within the ambit of s.30(1) a number of decided cases were relied upon. For example, Brog and the Department of Premier and Cabinet, a decision of Deputy President Galvin on 3 July 1989; in turn that case cited with approval re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588. In the latter case an argument was put that the "deliberative process" was confined to "policy matters". However, that decision is authority for the proposition that a deliberative process should be given its literal meaning as follows:-

"wide enough to include any of the processes of deliberation or consideration involved in the function of an agency ... in short ...its thinking process - the processes of reflection, for example upon the wisdom and experience of a proposal a particular decision or a course of action."

26. It must of course be observed that such an interpretation has the obvious result of exempting from disclosure a wide range of documents. For example it would cover any decision made by an agency as to what it would do to deal with an individual member whatever the subject matter. See for example Re Maloney and Department of Human Services a decision of Judge Davey dated 19 April 2001 where it was held that the drafts of documents prepared in the process of enquiring into whether there should be disciplinary proceedings in respect of an employee of an agency fell within the relevant section.

27. For my own view I have doubts as to whether such a wide interpretation was intended. Deliberative processes are, in my view, more akin to broad policy matters.

28. However, the decisions I was referred to (for example, Waterford) have been in existence since 1984 and if it were Parliament's intention to confine the definition of internal working documents in the manner suggested, there has been ample opportunity for such a change to be made by the legislature.

29. I turn now to Document No. 2 which is a letter from Fraser to Mr Neal, Acting Regional Director of the Eastern Metropolitan Region dated 2 August 2000. This letter advises him of developments and Fraser indicates that he is reviewing his options as to how to deal with the applicant. On the basis of the authorities that document clearly falls within s.30(1).

30. The same position applies with regard to Document 3 which is a letter from King to the Assistant Principal of Glen Eira College which was the school where the applicant was previously employed. In this document King expresses opinions and recounts details of the applicant's conduct at that school. In my view, this document clearly is part of the process of obtaining information with regard to the applicant with a view to determining how to manage his perceived conduct. The fact that it was obtained from another secondary college (which I understand is part of the State system) does not mean it falls outside the exemption. See s.5 of the Act and in particular the definition of "officer". For the reasons previously expressed I believe this document on the basis of the authorities is an internal working document and is prima facie exempt.

31. Document No. 7 is the draft of the letter signed by Schiller and Peck and which contains handwritten material as to possible alterations or additions to the letter which will finally be forwarded to the applicant. Again, I take the view that this is exempt pursuant to s.30(1). It is a document which deals with problems which the school was experiencing with the applicant advising him that it was proposed to have him examined by a psychiatrist. The document which is typed also has contained on its face handwritten material which I infer were changes that were contemplated to the typed copy. In my view clearly this document is part of the deliberative process.

32. The same applies to document No. 12 which is a summary of events compiled by Schiller and dated 30 July 2002. This document ends with a statement of the outcome of the "investigation". Most of the material has been supplied to the applicant. However, certain passages have been deleted. In my view this document is clearly part of the deliberative process of the agency in dealing with the applicant and for the reasons expressed above is prima facie exempt because the document falls within s.30(1)(a) of the Act.

33. I turn now to whether the second requirement of s.30(1) has been met, namely that the disclosure of the documents referred to would be contrary to the public interest inherent in the legislation itself, namely the right of people to know in general but in particular the right of people whose interests are affected - see O'Connor v State Superannuation Board, County Court, Judge Dixon, 27 April 1984 and also Medical Practitioners Board v Sifredi (2000) VAR 347. In particular, the latter case noted that the question of proof of impairment was "not a matter susceptible of proof as though it were a fact. The question draws on "elements of estimation and judgment rather than proof of a likelihood as might arise about a fact in the litigation context." The various authorities dealing with this issue are conveniently set out at pages 609 and following in Victorian Administrative Law Vol 2, Kyrou and Pizer. In particular, the decision of re Hulls and Victorian Casino and Gaming Authority (1988) 12 VAR 483 where various factors are mentioned as being applicable to the balancing exercise which the Tribunal is required to adopt. See also re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169.

34. In this matter the Applicant has an interest in ascertaining whether the conduct of those who ultimately made decisions about his continuing to work as a teacher, or be subjected to a medical examination as a result of which he was ultimately placed on sick leave, were taken in a fair and balanced manner. On the other hand, there is a clear public interest and the free flow of information between people investigating possible misbehaviour alleged by the Applicant against another teacher, and when it was found that those allegations were without foundation, to determine the Applicant's fitness to continue teaching. The welfare of the students together with the integrity of the teaching staff are also significant factors to be considered.

35. I have reviewed the authorities and I have considered among other matters the issue whether the concept of "frankness and candour" are still applicable. It is clear that this aspect has been viewed with a degree of distain by various courts and tribunals. However as was indicated by McDonald J in Newnham v Victorian Police Force (1997) 12 VAR 387, it is not an irrelevant matter to take into account. Indeed, where as here there are personal and critical assessments made by individuals with regard to the Applicant as is indicated by document 3, that is that of King (and which is then partially repeated in documents 2 and 12), and I believe that it would be contrary to the public interest to release them, having regard to the nature of the document the purpose for which it was generated and the need to ensure frankness and candour in the investigation being carried out. However insofar as document No. 7 is concerned, although the final document has been provided to the Applicant, I do not see why it would be contrary to the public interest to release such a document. It is a draft of a letter to the plaintiff and it contains suggestions as to how the letter should be worded. In my view it is an entirely innocuous document and in my view would not be contrary to the public interest to release it. Finally, in upholding the exemptions in respect of documents 2, 3 and 12 I have taken account of the factual nature, but I believe that the material is inextricably entwined with policy making processes.

36. I turn to documents 10 and 11 which I proposed to deal with together. Document 10 is headed "Report for Dr Nigel Strauss". This document has been largely released to the Applicant. The name of the teacher against whom the allegations has been made were deleted. However the Applicant does not seek to have this information released and nor should he because he named the teacher concerned when making his allegations to the school. The argument relates to four lines which broadly recounts the teachers reaction to the allegations.

37. In my opinion these words are clearly ones that relate to the "personal affairs" of that teacher and a mere reading of its contents clearly demonstrates that disclosure would be unreasonable.

38. Document 11 is the report of Dr Strauss which has been released to the Applicant save for five words on page 6. These words relate again to the accused teachers response to what has been alleged and clearly they also relate to his personal affairs, by the very nature of what is contained therein.

39. With regard to these documents I have relied on the decision of re Page v Metropolitan Transit Authority (1988) 2 VAR 243 at 245 to 246 where His Honour Judge Jones dealt with this issue in some detail. His Honour took the view that there needs to be a balancing of interests and he said:

"More particularly these balancing of interests requires a consideration of all the circumstances including the interest the Applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information of the person concerned would not wish to have disclosed without consent and whether the information has any relevance."

40. In my view applying that test to what is contained in both documents 10 and 11 satisfies me that disclosure not only relates to the personal affairs of any person, but to do so would be unreasonable, and I hold that they are exempt documents. In the circumstances it is unnecessary to deal with the issue as to whether they are exempt pursuant to s.35(1)(b).

41. Insofar as document 9 is concerned, this is a letter from Fraser to the teacher, concerning the result of the investigations. The letter has been provided to the Applicant save for 10 words which appear in the last line and as I have previously indicated the name of the teacher is not an issue. In my view the words contained in the last line relate clearly to the personal affairs of the other teacher and they are clearly exempt pursuant to s.33(1) and furthermore I believe their disclosure would be unreasonable having regard to the nature of the words used and the general circumstances existing. In so finding I have taken into account the matters referred to in paragraph 39 where I have set out a quote from the decision in Page.

42. The final documents are number 5 and 8. These are documents prepared by Schiller and are reports as to the progress of the investigation. Document No. 5 is dated 22 July 2002 and No. 8 was prepared on 24 July 2002. The only difference between the two is that the second document essentially updates the first document by adding material which describe events which occurred after a particular date. These documents have been supplied to the Applicant with deletions.

43. Insofar as this material refers to students, in my opinion it is exempt under s.33 and s.35(1)(b). The reference to the students overlaps with documents No. 4 and 6 and for the reasons set out earlier in this ruling, they are exempt. Further, in my view they also fall within s.33 because they relate to the personal affairs of each student and it would be unreasonable to disclose them. The same applies in the documents to references to the teacher against whom the allegations are made. They deal with his personal affairs. They contain descriptions of his reactions to the allegations made against him and as I have previously indicated are exempt pursuant to s.33. In my view it is clear that they relate to his personal affairs and it would be unreasonable to disclose them.

44. I turn to the issue of the operation of s.50(4) that is the public interest override. This cannot apply to any document found to be exempt pursuant to s.33 because the section specifically excludes the operation of this power where exemption has been established under that section.

45. The nature and extent of the override was considered in the decision of Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331. The court in that decision indicated that if a document is found to be exempt it can only be released under that section if the public interest requires, that is demands or necessitates the release of the document. It was said that the question may be answered in the affirmative only if the considerations of the public interest are so strong as to override those factors it confers exempt status on the document in the first place. The agency bears the onus of proving that the override should not be invoked and consideration must be given as to how strong the public interest considerations must be to prevail in a particular case, and this will depend upon the nature and strength of the factors that confer exempt status on the documenting question.

46. In my opinion public interest override does not apply in a case of this nature. Compare DPP v Smith [1991] VicRp 6; (1991) VR 63 where the issue involved the integrity of the administration of criminal justice. In this matter I am conscious of the fact that the process which we are dealing with in this application is the manner in which the Respondent has dealt with allegations which have been made by the Applicant against another teacher, and with a decision taken to have him medically examined and placed on sick leave. There must in such circumstances be a need to ensure that there is transparency in such a process. There is a public interest in the way in which this matter has been handled. Nonetheless I am satisfied that it does not meet the standard which has been stated by the Court in both the decision of Secretary to Department of Premier and Cabinet v Hulls and in DPP v Smith. When one looks at the documents either individually or collectively, I do not believe that the public interest requires the release of the documents in question, although as indicated I recognise that there is a public interest in the release for the reasons which I have mentioned.

47. Accordingly I find that all of the documents, save for document No. 7 are exempt documents and I uphold the decision not to release them to the Applicant. I further order that the Applicant be provided with a copy of document No. 7 for the reasons which I have outlined.

48. Finally in reaching the above conclusions I have not had regard to the affidavit of the applicant filed in other proceedings. In my view they are irrelevant to these proceedings. The applicant did not appear at the hearing and was not subjected to cross examination. I accept that I have a discretion to admit the material. However I do not propose to rely upon it. It was open to the applicant to swear an affidavit in these proceedings and he would have, if so required by the respondent, been subjected to cross examination. He elected not to adopt that course. Having regard to all of the circumstances I do not believe that I should admit such a document.

Information Act 1982

Hoskin v Department of Education and Training [2003] VCAT 946

At a glance

Court

Decision date

Source

Judgment (64 paragraphs)

Hoskin v Department of Education and Training [2003] VCAT 946 (16 May 2003)

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Legislation Cited (1)

Cases Cited (1)