Kang v University of Sydney

Material before the Tribunal

1. The material before the Tribunal in this application includes:

• the applications for review;
• bundles of documents (evidence) filed by Mr Kang on 3 June 2021, 11 June 2021 and 8 July 2021;
• an open and confidential affidavit of Dr Katherine Cumming dated 17 May 2021;
• an open and confidential affidavit of Dr Cumming dated 10 June 2021;
• a confidential copy of the information in contention; and
• written submissions of both parties.

1. The hearing held on 14 July 2021 proceeded by way of an open hearing where both parties made submissions and Dr Cumming was cross-examined on the evidence in her open affidavits. A confidential session was also held in which Dr Cumming gave evidence related to the confidential information contained in her affidavits and the University made confidential submissions in relation to the public interest considerations it had identified as being against disclosure of the information.

Confidentiality orders

1. Confidentiality orders under s 64 of the Civil and Administrative Tribunal Act 2013 were made on 14 July 2021 relating to material filed with the Tribunal on a confidential basis by the University, to the evidence given in private and to the record of that part of the proceedings conducted in private. An order was also made under s 64 in relation to the signature page of document E4 filed by Mr Kang on 3 June 2021 and to a revised version of that document filed on 8 July 2021, referred to as the expert witness statement.
2. Those orders also apply to those paragraphs of these reasons identified as [Not for publication].

Background to the access request

1. To understand the issues at the centre of the parties' evidence and submissions in relation to Mr Kang's access request it is important to understand the background and context within which the request was made.
2. The access request is for communications (emails) between academics at the University and academics in China between 29 December 2019 and the date of the request relating to discussions concerning SARS-CoV-2. My understanding from the evidence and submissions provided by Mr Kang is that it is hoped the emails may assist in understanding the sequence of events which led to the SARS-CoV-2 outbreak in Wuhan and the origins of the virus (the two most common theories being transmission to humans from an intermediary host - a pangolin - and a leak from a laboratory). In addition, the emails may shed light on possible delays in releasing the SARS-CoV-2 genomic sequence in January 2020. This latter issue is set in the context of a notice titled Strengthening the Management of Biological Sample Resources and Related Scientific Research Activities in the Prevention and Control of Infectious Diseases. The notice was published on 3 January 2020 by the General Office of the National Health Commission in China and provides at paragraphs 7 and 8: 7. During the epidemic prevention and control work, the information generated by various institutions undertaking pathogenic testing tasks is a special public resource. No institution or individual may publish information about pathogen testing or experimental results without authorization; related papers and results must be published Entrust the department to review and agree. 8. The staff of all relevant institutions should promote the truth-seeking spirit of pursuing truth and rigorous academic research, strengthen the construction of academic style, and establish public health awareness in research involving major infectious diseases and diseases of unknown origin, and strictly abide by the legal redline and scientific research bottom-line. Institutions should review research, papers, and results in the field of infectious diseases and biosafety; opinions that have not been scientifically verified and reviewed must not be publicly disseminated to the public.
3. The experts who have signed the witness statement provided by Mr Kang as part of his evidence refer to the above notice as "gag orders placed on Chinese scientists".
4. Dr Cumming provides evidence in her confidential statement that:

• [Not for Publication].
• [Not for Publication].

1. Items 1-8 which comprise the information withheld by the University in response to Mr Kang's access request are described below.

• [Not for Publication] Item 1
• [Not for Publication] Item 2
• [Not for Publication] Items 3 and 3A
• [Not for Publication] Item 4
• [Not for Publication] Item 5
• [Not for Publication] Item 6
• [Not for Publication] Item 7
• [Not for Publication] Item 8

The relevant law

1. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
2. The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the University: s 105(1) of the GIPA Act.

Overriding public interest against disclosure

1. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). Under the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure" (s 9). There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. That Schedule is not relevant to the current application.
2. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
3. In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.

"Could reasonably be expected to"

1. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information "could reasonably be expected to" have the nominated effect. The non-exhaustive list of examples of public interest considerations in favour of disclosure of information as set out in the Note to s 12 of the GIPA Act also state that disclosure of the information "could reasonably be expected to" have the nominated effect.
2. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
3. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
4. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
5. Several of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. "Prejudice" 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].
6. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [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.

Personal factors

1. Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application": 1. the applicant's identity and relationship with any other person, 2. the applicant's motives for making the access application, 3. any other factors particular to the applicant.
2. The personal factors of the application may not be taken into account as considerations against disclosure in respect of cll 1, 6 or 7 of the Table.
3. Section 55(2) of the GIPA Act provides that 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. It seems that Mr Kang's motives in making the access application relate to his desire that the public be better informed on matters concerning the SARS-CoV-2 pandemic.

Public interest considerations in favour of disclosure

1. There is a general presumption in favour of disclosure of government information set out in s 12(1) of the GIPA Act. The public interest considerations in favour of disclosure are, of course, not limited. In addition to the general presumption in favour of disclosure, both parties have identified the following as being public interest considerations in favour of disclosure of the information responsive to Mr Kang's access request:

• disclosure could reasonably be expected to facilitate public scrutiny of and promote transparency in university research;
• disclosure could reasonably be expected to increase understanding of the sequence of events that led to the COVID-19 pandemic, the origins of the pandemic and the initial health response to it by governments.

1. I agree that these are significant public interest considerations in favour of disclosure. Transparency in university research is certainly an important issue particularly as it involves the expenditure of public monies as well as from private sources. There is no doubt that better understanding of the origins of the pandemic and the sequence of events that led to it as well as the health response is important, not only in dealing with the current pandemic, but also in reducing future risk and preparing for the next pandemic.
2. The University submits that the information that has not been disclosed to Mr Kang does not concern the sequence of events that led to the pandemic. From my reading of the material this would appear to be correct. Some information may, however, relate to the origins of the pandemic and the public health response to it.
3. Mr Kang puts forward several other matters which he states are public interest considerations in favour of disclosure. He has provided a good deal of evidence to support some of the assertions he makes in his submissions and, overall, the matters he raises are certainly ones that, in a general sense, are matters in the public interest. The University disputes that some of these matters are in fact raised by the information itself. Each of the claimed public interests in favour of disclosure are dealt with below.

Disclosure could reasonably be expected to reveal possible reasons for delays in the public release of the first SARS-CoV-2 genomic sequence

1. Mr Kang provides evidence and makes some assertions in relation to the public disclosure of the genomic sequencing of SARS-CoV-2. He raises issues of who was first to publish the sequence and whether there were delays in publication due to government pressure or academic competition. Mr Kang submits that, given that there were communications between the University and Chinese scientists, it is reasonable to expect that the email communications may contain information that will shed light on why there was a delay in releasing the sequence. He submits that the delay allowed the virus to spread undetected at a crucial moment and it is in the public interest that, first, the reasons for the delay are known and, second, that such delays can be prevented in the future. Mr Kang also submits that, if the sequences were delayed because of competition among scientists, it may spur debate among the scientific community about the norms around sharing data during the beginning of an outbreak - which is also a matter in the public interest. The experts who made the witness statement provided by Mr Kang in these proceedings state that release of the information could allow policies to be adopted that speed up the public health response to a future outbreak thereby reducing the risk that it could turn into another global pandemic.
2. While there may certainly be a public interest consideration in relation to the factors outlined by Mr Kang, the information sought does not in fact reveal any alleged reasons for any alleged delay in the release of the SARS-CoV-2 genetic sequence. This public interest consideration in favour of disclosure is therefore not relevant in this matter and I give it no weight.

Disclosure could reasonably be expected to shed light on who was the first to publish SARS-CoV-2 sequence

1. As noted above, Mr Kang states that there is some dispute over who was the first to publish a SARS-CoV-2 genomic sequence. He provides evidence from various sources, including the experts who made the statement he submitted, which raise issues about whether scientists at the Institute of Viral Diseases at the Chinese Centre for Disease Control and Prevention were the first to publish the sequence or it was first published by other virologists. He submits that the information in the emails he has requested may reasonably be expected to possibly shed light on who was the first to publish the sequence. He submits that this would be in the public interest as the information may reasonably be expected to contribute to informed discussion on who was the first to publish the sequence.
2. Assuming that there is a public interest in revealing who was first to publish the genomic sequence of SARS-CoV-2, the information to which access is sought does not "shed light" on this and, in my view, would not take the matter beyond what is currently in the public domain. As a result, this public interest is not relevant as a factor in favour of release and I give it no weight.

Disclosure could reasonably be expected to contribute to positive and informed debate on the likelihood of a pangolin intermediary host as being the origins of the SARS-CoV-2 pandemic

Disclosure could reasonably be expected to contribute to positive and informed debate on the likelihood of a laboratory leak as the origins of the SARS-CoV-2 pandemic

1. Mr Kang points out that the origins of SARS-CoV-2 remains a mystery and that the two most common theories are that it is possible that the virus jumped from bats to humans via an intermediary host, a pangolin, or that it arose via a laboratory accident in, most likely, Wuhan. In relation to the pangolin theory, Mr Kang states that a University academic and a number of other teams of scientists published papers suggesting that SARS-CoV-2 may have first infected humans via a pangolin, a heavily trafficked animal native to Southeast Asia. He states that there has been some criticism and scepticism of this hypothesis as the papers all relied on the same batch of samples taken from pangolins seized in southern China in 2019.
2. Mr Kang states that the information in the emails could help the scientific community assess the likelihood of a pangolin intermediary host as being the origin of the SARS-CoV-2 outbreak, and disclosure is thus clearly in the public interest.
3. Similar, although not identical, arguments are raised in relation to the origin of the outbreak likely being a laboratory leak. Mr Kang states that the information contained in the emails may reasonably be expected to provide more detail about the circumstances of the first cases and how SARS-CoV-2 was initially detected. This in turn could point researchers and scientists in the right direction and advance the understanding of the plausibility that the virus was the result of a laboratory accident. Mr Kang submits that any information that can possibly advance the discussion of whether SARS-CoV-2 leaked from a laboratory is very much in the public interest.
4. There is no doubt that there is a public interest in informed debate on the origins of the SARS-CoV-2 pandemic. This includes whether the virus has infected humans through a pangolin intermediary host or through a leak from a laboratory. Some of the information contained in the documents responsive to Mr Kang's access request touches on matters which could be said to relate to the origins of the virus. It does not, however, contain information on matters such as where the first samples were obtained, who the first patients were or other details surrounding the first cases of COVID-19 which would assist in establishing the origins of the pandemic.
5. These public interest considerations as framed by Mr Kang, however, are of some relevance to the withheld information and I therefore give them weight.

Disclosure could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public

1. Mr Kang states that the University plays a crucial role in educating members of the public on topics of interest, including infectious diseases and the SARS-CoV-2 pandemic specifically. He asserts that Chinese officials are known to have put pressure on foreign academic institutions not to say or do certain things that they see as being in their interests. He refers in particular to news articles referencing foreign interference at Australian universities, particularly Chinese influence.
2. Mr Kang states that the public should know whether the University's research partnerships with Chinese research institutions are taking place in an open and transparent manner. He states that the emails caught by his access request may produce information that could inform the public about whether the University's virologists are being pressured not to say certain things. He submits that, if that is the case, it would have a direct impact on the University's ability to educate members of the public on topics such as the Chinese government's handling of the outbreak.
3. As noted above at [30] - [31], it is accepted that there is a public interest in disclosing information that facilitates public scrutiny of and promotes transparency in university research and that this consideration should be given significant weight. There is also a public interest in disclosing information about the influence of any external interests (government or commercial) on the conduct of research and its outcomes by university researchers. However, the information that is responsive to Mr Kang's access request does not contain any information about pressure being applied to the University's researchers by the Chinese authorities or, indeed, by anyone else. This public interest consideration does not, therefore, feature in my assessment of whether there is an overriding public interest consideration against disclosure.

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

1. In his submissions Mr Kang raises issues about the role of a University academic in the release of the SARS-CoV-2 genomic sequence in January 2020 and what he refers to as the delay in the first release of the sequence. He suggests that it is possible that the academic was complicit in events which he states delayed the publication of the genomic sequence, thereby delaying the global public health response and allowing the virus to spread further undetected. Such conduct, he states, (if made out) may constitute negligent or improper conduct.
2. The University denies that the academic or any other University employee has been negligent or engaged in improper conduct in the manner alleged. Mr Kang also acknowledges that the academic may be without fault.
3. The principles established by the Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect are set out above. The documents attached to the submissions made by Mr Kang include some which indicate that there may have been some unexplained delay in releasing the SARS-CoV-2 genomic sequence in January 2020. This is also referred to above in relation to other claimed public interest considerations in favour of disclosure. Mr Kang speculates that the University may have known about/may have been complicit in certain alleged events.
4. Where it can be established that disclosure of information could reasonably be expected to reveal misconduct or negligent or improper conduct on the part of an agency or its employee, this would be a public interest consideration in favour of disclosure which would be given substantial weight. As stated by the Appeal Panel in the Newcastle City Council case, however, there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect and prominence should be given to inferences capable of being drawn from established facts. The material presented by Mr Kang does not deal with established facts but rather engages in speculation and possibilities. The Tribunal is not in a position to determine whether the assertions made by Mr Kang are correct.
5. In any event, the withheld information, in my opinion, would not assist in the identification of any alleged misconduct or negligent or improper conduct as described by Mr Kang in his submissions. I therefore give this public interest consideration in favour of disclosure little weight.

Third party consultation

1. In accordance with its obligation under s 54 of the GIPA Act, prior to making its decision, the University consulted with three people about the release of the information the subject of Mr Kang's request. Prior to the first decision being made in November, one did not object to release and two did not respond to a request for their views. By the time the further decision was made in May 2021, the person who had previously stated that there was no objection to release of the information had advised that they did have objections to its release. A fourth person was identified in the further decision but the University did not undertake consultation as it had formed the view that consultation was not required because the information was not to be released in light of the other significant public interest considerations against disclosure.
2. [Not for Publication]

Public interest considerations against disclosure

1. The University refers to the public interest considerations set out in the table in s 14 and submits that there is an overriding public interest against disclosure in relation to documents 1-6 in circumstances where it could reasonably be expected disclosure would: 1. prejudice the supply to the University of confidential information that facilitates the effective exercise of its functions (s 14 Table, cl 1(d)); 2. prejudice the effective exercise by the University of its functions (s 14 Table, cl 1(f)); 3. result in the disclosure of information provided to the University in confidence (s 14 Table, cl 1(g)); 4. reveal an individual's personal information (s 14 Table cl 3(a)) or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14 Table cl 3(b)); 5. expose a person to a risk of harm or of serious harassment or serious intimidation (s 14 Table cl 3(f)); 6. prejudice any person's legitimate business, commercial, professional or financial interests (s 14 Table cl 4(d)); and 7. prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 Table cl 4(e)).
2. In relation to documents 7 and 8 the University states that the above public interest considerations against disclosure are relevant, with the exception of cl 4(d) in the Table to s 14.

Clause 1(d) - prejudice the supply of confidential information

1. Clause 1(d) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions. The University submits that, if the withheld information were disclosed, it is reasonable to expect that those who would otherwise supply confidential information to the University would decline to do so in the future, and that this would have a deleterious effect upon the University's ability to form collaborative partnerships and conduct research to meet the needs of the community (one of the University's primary functions).
2. For information to come within clause 1(d), it must have been obtained in confidence. In Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 the Appeal Panel stated that the question as to whether information is "confidential information" 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". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it" (at [34]). In Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 at [44] the Tribunal stated: 1. The confidential quality of communications is a question of fact; 2. To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; 4. The confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
3. The information contained in Items 1-8 consists of email communications between academics. Dr Katherine Cumming, University Archivist and Manager, Privacy Compliance at the University states that the information that the University has withheld from Mr Kang is not in the public domain and is confidential. In confidential evidence given to the Tribunal, Dr Cumming stated [Not for Publication]
4. In Raven v University of Sydney [2015] NSWCATAD 104 at paragraph [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances". The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality.
5. Mr Kang submits that the University has failed to satisfactorily show that the communications were confidential. He refers to the fact that in the initial consultations one of the academics did not object to disclosure, that the academics concerned have discussed their work publicly on other occasions and the University has released emails of academics in other cases.
6. Dr Cumming gives evidence that the information contained in the emails is not in the public domain. My review of the information reveals that it comprises fairly frank exchanges between academics about matters concerning their research, including the context within which it was conducted. I do not consider that the writers would have expected these communications to be publicly released but would have expected they remain as a confidential exchange between close colleagues.
7. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said with respect to the requirement that disclosure could reasonably be expected to prejudice the future supply of information to an agency: In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
8. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
9. Section 6 of the University of Sydney Act 1989 states that the object of the University is the promotion, within the limits of the University's resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence. That section also sets out the principal functions of the University for the promotion of its object. These include "the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community".
10. Dr Cumming provides evidence that the University relies on researchers in collaborative partnerships sharing detailed and sometimes confidential data and information about their work to advance research outcomes. In her opinion, if researchers and their cross-institutional partners anticipated that the confidential communications could be disclosed to other parties, or to the public at large, they would be likely to feel inhibited in their ability to discuss their collaborative research projects and findings fully and candidly.
11. [Not for Publication]
12. On the basis of the evidence provided, I am satisfied that, if academics believe their confidential, frank and open exchanges about research they are involved in with the University could be released to the public, they would be far less likely to provide that information to the University. I am therefore satisfied that disclosure of the information contained in the emails could reasonably be expected to prejudice the supply of such confidential information to the University.
13. I am also satisfied that the information was provided to the University in the course of the University exercising its research function. The University submits that, if researchers in other institutions feel they cannot provide candid confidential information about their research to colleagues at the University, this would have a deleterious effect upon the University's ability to form collaborative partnerships and conduct research. This would prejudice the University's effective exercise of its research function.
14. Mr Kang accepts that disclosure could affect collaborative research but argues that cloaking such collaborations in secrecy is directly in conflict with the University's function of promoting scholarship, research and academic excellence. He argues that disclosure would in fact have a beneficial effect by promoting scrutiny, accountability and transparency of such research collaborations.
15. In some circumstances Mr Kang may be right in his submissions but, overall, I am satisfied that the position put forward by the University that other academics and institutions would be more reluctant to enter into collaborative partnerships with the University if they thought their private communications would be released. Contrary to Mr Kang's submissions, I consider that disclosure of such information would lead to more guarded discussions between academics which would have the opposite effect to that which he suggests.
16. As a result, I am satisfied that the disclosure of the information in Items 1-8 could reasonably be expected to prejudice the supply to the University of confidential information that facilitates the effective exercise of the University's functions.

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

1. Unlike clause 1(d), clause 1(f) of the Table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency's functions.
2. Largely for the reasons set out above, I am satisfied that release of the withheld information could reasonably be expected to prejudice the exercise of one of the University's functions in conducting collaborative research.

Clause 1 (g) - disclosure of information provided in confidence

1. Clause 1 (g) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. For the reasons outlined above in relation to clause 1 (d), I am satisfied that disclosure of the information in Items 1-8 would result in the disclosure of information provided to an agency in confidence.

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

Clause 3(b) - contravene an information protection privacy principle

1. These two clauses concern the release of personal information. The definitions of "personal information" in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information (GIPA Act Sch 4 cl 4; PPIP Act s 4). The GIPA Act provides that to "reveal" information means to "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
2. In relation to cl 3(a) Mr Kang agrees that disclosure of the information could reasonably be expected to reveal a person's personal information. He states, however, that he would be happy to have sensitive personal information such as contact details or addresses redacted from the information.
3. Redaction of names and contact details, however, may not be sufficient to prevent identification of a person. In Office of Finance and Services v APV and APW [2014] NSWCATAP 88 at [56] in relation to the definition of personal information contained in the PPIP Act, the Appeal Panel said: The definition of personal information states that the information is about an individual "whose identity is apparent or can reasonably be ascertained from the information or opinion." Those words do not mean that other material cannot be consulted. That is obvious from the fact that there are two ways in which information or an opinion may disclose a person's identity. Either the identity is "apparent" from the information or it "can reasonably be ascertained" from that information. The dictionary definition of the adjective "apparent" is "capable of being clearly perceived or understood; plain or clear." (Macquarie Dictionary online). The verb "ascertain" means "to find out by trial, examination, or experiment, so as to know as certain; determine." (Macquarie Dictionary online). By including the option that a person's identity can "reasonably be ascertained" from the information, the legislature was intending to allow a person to find out or determine the identity of the person from the information and, where reasonably identifiable from other information, from that other information.
4. Similarly, in Turnbull v Strange [2018] NSWCA 157 at paragraph [5] it was said: "It may be that the content of a telephone conversation, including statements made by one party, will constitute "opinions" about the other party to the conversation. However, statements by the relevant individual will not constitute opinions about himself or herself, in most circumstances. On the other hand, statements made by the individual may identify "information" about that individual, in that they may reveal that he or she held a particular opinion or knew certain things at a particular time."
5. In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [92] the Appeal Panel referred to the "mosaic effect" as "a phenomenon whereby access applicants build up a picture of the whole, through completing parts of the mosaic, by means such as access applications, other forms of research and enquiry, and pre-existing personal knowledge of the circumstances of interest".
6. 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. As set about above, the information in Items 1-8 is not in the public domain and is confidential. My reading of the documents shows that, even if the identifiers nominated by Mr Kang were removed, the identity of the authors and recipients and some other third parties would be able to be ascertained from the context within which the emails were written along with their content, including the dates they were sent, their subject matter and references to other material (including hyperlinks).
7. In relation to cl 3(b) and whether disclosure could reasonably be expected to breach and information protection principle, the University is a public sector agency as defined in the PPIP Act and is required to comply with the information protection principles set out in that Act.
8. Section 18 of the PPIP Act sets out limits on the disclosure of personal information. That section provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
9. Mr Kang notes that, at the time the first decision was made in November 2020, of the three people the University consulted about release of the information, one did not object to disclosure and two did not respond. He argues that there is therefore no reason to believe that the individuals concerned would have objected to the disclosure at the time. He states that this partially fulfils the exception in s 18(a) of the PIPP Act that "the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure". Mr Kang accepts that, by the time the further decision was made in May 2021, the person who had initially not objected to the release of the information had since advised the University that they do object to the disclosure of the information.
10. Mr Kang also submits that the purpose in disclosing this information under the GIPA Act is to advance the world's knowledge of the origins of SARS-CoV-2 and the manner in which the outbreak unfolded. He points out that the University states in its submissions that the purpose for which the information was provided was on "research on the outbreak of SARS-CoV-2 in China".
11. Mr Kang submits that, as there was no objection to the release of the information in November 2020 and because disclosure is clearly related to the purpose for which the information was collected, the exception in s 18(a) is made out and the University is able to disclose Items 1-8.
12. While Mr Kang's submissions are a little unclear, it seems that he accepts that disclosure of the information identified in the further decision of May 2021 may be reasonably expected to breach an information protection principle. In relation to the balance of the information as identified in the November 2020 decision, I accept that the individual who previously stated they did not object to its release, now does so. It is important to bear in mind that the Tribunal's task under s 63 of the Administrative Decisions Review Act 1997 "is to decide what the correct and preferable decision is having regard to the material then before it" (emphasis added). That is, the Tribunal may take into account all available evidence, including evidence which was not before the original decision-maker This can include that the person concerned now objects to release of the information.
13. The University submits that there is reason to believe that the other individuals who did not respond to emails seeking consultation would also object to disclosure. [Not for Publication].
14. Even if it could be said that (a) the fact that two of the people concerned did not respond to emails seeking consultation means that they do not object to disclosure, and (b) the other person's original statement that they did not object to disclosure still stands, for s 18(a) to apply, the disclosure must be directly related to the purpose for which the information was collected. It is not sufficient that there be some connection between the subject matter of information and the motives of the person seeking its release. I agree with the submissions of the University that the information was collected for the purpose of conducting research on the outbreak of SARS-CoV-2, not for the purpose of disclosure to the world under the GIPA Act. I am of the view that the exception in s 18(1)(a) of the PIPP Act does not apply.
15. I am therefore satisfied that the public interest considerations in cll 3(a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released.

Clause 3(f) - expose a person to a risk of harm or serious harassment or serious intimidation

1. The University submits that release of the information could reasonably be expected to expose people to a "risk of harm or of serious harassment or serious intimidation". It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49].
2. In DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 at [77]-[82] the Tribunal, drawing extensively on the decision in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90, summarised the principles relating to cl 3(f) of the Table to s 14. These are:

• The meaning of harm should be confined to "a real and substantial detrimental effect on a person", including to a person's physical, psychological or emotional wellbeing.
• Harassment requires "a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment".
• Intimidation is closely related to the concept of harassment and is "to make timid, or inspire with fear, overawe, cow".
• The requirement that the intimidation or harassment be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient".

1. [Not for Publication]
2. [Not for Publication]
3. Mr Kang concedes that at least one person referred to in Items 1-8 has been subject to harassment and intimidation. He disputes, however, that the University has established that disclosure would expose a person to risk of harm or of serious harassment or serious intimidation. He cautions against conflating harassment or intimidation with legitimate scrutiny, discussion and debate about scientific research. Mr Kang states that, past harassment and death threats does not mean that the people concerned will be exposed to any additional risk of harm or serious intimidation or serious harassment in the future due to the disclosure of Items 1-8. He in fact states that disclosure could do much to clarify the situation and potentially reduce such harassment and intimidation.
4. The evidence provided by the University in these proceedings shows that there has been serious harassment and intimidation of individuals referred to in Items 1-8. The nature and tenor of the abuse and threats goes well beyond anything to do with the ordinary scrutiny, discussion and debate of scientific research. The University points out the ongoing discussion of and focus on the origins of SARS-CoV-2 and states that there is no basis for concluding that disclosure of the withheld information would reduce the risk of harassment and intimidation. I agree.
5. I am satisfied that this public interest consideration against disclosure should be taken into account when determining whether there is an overriding public interest against disclosure.

Clause 4(d) - prejudice to legitimate professional interests

1. Clause 4(d) provides that there is a public interest consideration against disclosure if the disclosure could reasonably be expected to prejudice any person's legitimate professional interests. It is not in question that an academic is a professional with interests to which cl 4(d) applies: Pemberton v UNSW [2014] NSWCATAD 19 at [55]; Pembroke v Macquarie University [2014] NSWCATAD 76 at [46].
2. This consideration is only relevant to Items 1-6 which the University describes as containing information about the conduct of research that is not in the public domain, and which was restricted to the academics involved in the research activity. Dr Cumming gave evidence that the information is in essence about the process by which research was being undertaken rather than the actual outcome of the research which is in fact in the public domain. The communications were between academics who were involved in the research activity and, as can be seen from above, were treated as confidential by the persons involved and by the University.
3. The information contained in Items 1-6 certainly includes communications between researchers about their work. It also contains information and commentary about the context within which the work was conducted. At issue is whether their disclosure could reasonably be expected to prejudice the legitimate professional interests of the academics involved. The University submits that in light of the harassment, threats et cetera levelled at least two academics referred to in Items 1-6 (as outlined above in relation to cl 3(f)), release of the information could reasonably be expected to affect their professional and personal reputations. Dr Cumming in her evidence also refers to one overseas based academic who is referred to in Items 1-6 who appears to have had their professional interests prejudiced by virtue of the subject matter of Items 1-6.
4. Mr Kang states that the fact that the information concerns the conduct of research that is not in the public domain has no bearing on whether disclosure is for or against the public interest. He submits that the University has not put forward sufficient evidence to support the claim that the positions and reputations of the persons concerned would be prejudiced by disclosure. In relation to the overseas academic referred to by Dr Cumming, Mr Kang accepts that this person's professional interests may have been prejudiced by virtue of research on SARS-CoV-2, but rejects the notion that the person would suffer any further prejudice to their professional interests through disclosure of the information in Items 1-6. Furthermore, Mr Kang states that, if the information contained in Items 1-6 may reveal negligence or improper conduct (as he referred to above in relation to one of the considerations said to be in favour of disclosure), it would not prejudice any legitimate professional interests of any person.
5. The University points out that Mr Kang has sought orders that the identities of the signatories of the expert witness statement he has provided in these proceedings should not be disclosed because the academics "may fear prejudice of their legitimate professional interests for signing onto a sensitive statement that concerns research by an academic active within their field". The information in Items 1-6 similarly concerns academics active within the field of research on SARS-CoV-2. In my view, in light of the nature of the information and the context within which the communications were made, to use the words of the Tribunal in Leech, it is not "purely speculative, fanciful, imaginary or contrived" to consider that the legitimate professional interests of the writers of the communication could be affected by the disclosure of Items 1-6.
6. As noted above in relation to Mr Kang's submissions concerning misconduct, there is nothing to support those allegations and that is not a matter which arises on the evidence before me.
7. I am therefore satisfied that disclosure of the information could reasonably be expected to prejudice the legitimate professional interests of the authors and others referred to in Items 1-6.

Clause 4(e) - prejudice the conduct, effectiveness or integrity of any research

1. Clause 4(e) provides that there is a public interest consideration against disclosure if it could reasonably be expected that disclosure would prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
2. The University submits that researchers in collaborative partnerships need to be able to share detailed and sometimes confidential information and opinions, which may not be final, about their work. The evidence and arguments in relation to matters which arise when conducting sensitive research with partners outside of Australia are set out above in relation to the discussion on cl 1(d). The University submits that release of the information in Items 1-8 could reasonably be expected to negatively impact the collaborative relationships between the researchers named in those items and therefore prejudice the future conduct of similar research in China.
3. Mr Kang accepts that, in the short run, disclosure of the information could negatively impact the collaborative relationships between the researchers named in Items 1-8 and prejudice the future conduct of similar research in China. He believes, however, that disclosure would also promote, rather than prejudice, the integrity and effectiveness of research on the SARS-CoV-2 outbreak and lack of disclosure would prejudice the integrity and effectiveness of that research. He states that in the long run, disclosure will also have a positive impact by promoting open and transparent research collaborations, which will result in more effective research with integrity.
4. While appreciating Mr Kang's optimism for the future, I accept the University's argument that reducing access by international academics to the research being conducted in China could reasonably be expected to decrease, rather than increase, long-term transparency in scientific research. I am satisfied that it is appropriate for me to take the public interest consideration set out in cl 4(e) into account when determining whether there is an overriding public interest against disclosure of the information in Items 1-8.

Is there an overriding public interest against disclosure of the information?

1. Determining where the balance lies between the competing interests for and against disclosure is "a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]; Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160 at [46].
2. In addition to the general public interest in favour of disclosure (GIPA Act, s 12(1)), I have found that there are significant public interest considerations in favour of disclosure of the information sought by Mr Kang. These are that disclosure could reasonably be expected to facilitate public scrutiny of and promote transparency in university research and that disclosure could reasonably be expected to increase understanding of the sequence of events that led to the COVID-19 pandemic, the origins of the pandemic and the initial health response to it by governments. These matters are of particular significance and, as stated above, have implications, not only in relation to the current pandemic, but also in reducing future risk and preparing for the next pandemic. They have significance not only for Australia but globally. Matters concerning the scrutiny of and transparency of research conducted by the University are also important.
3. It is clear that there has been significant public attention to issues concerning the origin of SARS-CoV-2 and in the competing theories as to the likelihood of a pangolin intermediary host being the origin or the likelihood of the virus having originated from a laboratory leak. Identifying the origins of the virus is a matter of considerable public interest and is a factor in favour of release. However, the information contained in Items 1-8 merely touches upon these topics and, while these public interest considerations in favour of release must be accorded some weight, that weight is not particularly significant in light of the actual information contained in Items 1-8.
4. Several of the other public interest considerations in favour of release put forward by Mr Kang, while objectively applicable, do not arise in this matter as the information in Items 1-8 do not contain information relevant to those claimed considerations.
5. I have found that the applicable public interest considerations against disclosure are that disclosure could reasonably be expected to: prejudice the supply to the University of confidential information that facilitates the effective exercise of its functions; prejudice the effective exercise by the University of its functions; and result in the disclosure of information provided to an agency in confidence (GIPA Act, s 14, table, cll 1(d), (f) and (g)). In addition, I have found that disclosure of the information could reasonably be expected to: reveal an individual's personal information; contravene an information protection privacy principle and expose a person to a risk of harm or of serious harassment or serious intimidation (GIPA Act, s 14 table cll 3(a), (b) and (f)). I am also satisfied that disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any research (GIPA Act, s 14 table cl 4(e)) and, in relation to Items 1-6, prejudice a person's legitimate professional interests.
6. The most significant considerations against disclosure are, at a personal level, that disclosure could reasonably be expected to expose several persons to a risk of harm or of serious harassment or serious intimidation. The evidence provided establishes that persons referred to in the information have been subjected to serious harassment and intimidation, including death threats. I do not accept Mr Kang's submissions that release of the information may lead to a reduction in such harassment and intimidation. I accept Mr Kang's views and submissions around transparency and the inherent importance of the subject matter, however, the opportunity for greater scrutiny of the research engaged in by researchers in the field, would come at a significant cost. It is likely that researchers would be reluctant to share views and opinions if they believed it would lead to harassment and intimidation. This would have the opposite effect to that suggested by Mr Kang.
7. At a broader level the ability of the University to exercise its functions by carrying out collaborative research to meet the needs of the community, including its ability to conduct international collaborative research, is important across the whole range of the University's activities not only in relation to virology and research into infectious diseases. The ability of academics to communicate confidentially about their research, including by having robust and frank discussions, is an important factor in ensuring the rigour and integrity of that research which may ultimately lead to greater benefits for all.
8. Mr Kang urges that the balance fall in favour of release and asks whether protecting the reputation of the few prominent scientists should outweigh the potentially enormous ramifications for public health, with millions of lives and trillions of dollars at stake, which may result from nondisclosure. There is no doubt that these are weighty matters and that there is, as stated above, an extremely strong public interest concerning disclosure of all information relating to SARS-CoV-2. However, on balance, I am satisfied that the public interest considerations against disclosure outweigh those in favour of disclosure even though the considerations in favour of disclosure are substantial.
9. For these reasons, the correct and preferable decision is to affirm the University's decision to refuse access to the information sought by Mr Kang.

Orders 1. The decision under review is affirmed.

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 28 April 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act paragraph [84] has been redacted as [Not for Publication] after the first sentence. 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: 28 April 2022