Victorian Civil and Administrative Tribunal|2004-08-03

Koch v Swinburne University [2004] VCAT 1513 (3 August 2004)

General List - freedom of information - report into complaints by applicant against fellow employees - Freedom of Information Act 1982 s 30(1) and 33

1 By a letter dated 2 December 2003, the applicant sought access pursuant to the Freedom of Information Act 1982 (the Act) of :

The full copy of the 1998 report prepared by Philip Garside Consulting following my lodgement of complaint against Ms Cargill earlier in that year (the Garside Report).

2 On 15 December 2003, the respondent sent a letter to the applicant refusing access to the Garside Report. Pursuant to a request of the applicant, the decision of 15 December 2003 was internally reviewed. Subsequent to that internal review, on 12 January 2004, the respondent sent a letter to the applicant upholding the original decision (the decision).

3 The respondent claims that the Garside Report is an exempt document pursuant to s 30(1), 33(1) and/or s 35(1)(b) of the Act.

4 At all relevant times to this application, the applicant, Dr Koch, was a lecturer employed by the respondent in its Business Studies Department. It is noted, that some time ago, the applicant's position with the respondent was terminated, however, such termination has no relevance to the application before the Tribunal.

5 In 1998, the applicant made two complaints to the respondent, viz, that :

(a) his Polish qualifications were not appropriately recognized by Swinburne and this had detrimentally affected his career; and

(b) allegations of harassment made by a female administrative staff member against him had not been proved and he was denied natural justice in the manner in which Swinburne handled the allegations.

6 As a result of the two complaints referred to in the last paragraph, in June or July 1998, Garside Consulting Pty Ltd (Garside) was requested by the respondent to independently investigate the two complaints of the applicant. Garside was an independent consultant firm used by the respondent to undertake independent investigations into complaints.

7 During the preparation of the Garside Report, Garside conducted numerous interviews on a confidential basis with nine persons (including the applicant, the person against whom the second allegation was made and witnesses), with some of them being interviewed on more than one occasion and they have been named in the Garside Report. Those persons were told that the report would be confidential other than to the respondent.

8 The outcome of the investigation was the preparation of the Garside Report which was a confidential report to the respondent dated 27 July 1998.

9 Subsequent to the report being provided, the applicant was given an opportunity to read the Garside Report and provide any comments on its contents in order that the respondent could finalise its position.

10 There was some dispute on the evidence before me as to whether the applicant was provided with the whole report or the report in part. Documentary evidence from the respondent's file, referred to by Ian Taylor, suggested that the applicant had been shown the whole report. However, the applicant maintained he was only shown parts of the report. In my view, it has little bearing on this application whether the applicant was shown the whole of the report or the report in part and therefore I will make no finding on this matter except to say that I find he was shown at least the material substance of the report.

11 In a confidential memorandum from Liz Shave, Equity Manager of the respondent, to the applicant, as a result of the Garside Report, the following findings were made by the respondent :

* On balance of probabilities and in the absence of further evidence, Dr Koch's allegations of his career being detrimentally affected by his Polish qualification not being appropriately recognized is unsubstantiated.

* On balance of probabilities and in the absence of further evidence, Dr Koch's complaint that he has been denied natural justice in regard to harassment complaints from administrative staff is substantiated.

12 In relation to the second finding, the following recommendations were made and carried into effect :

1. That Ms Cargill apologises to Dr Koch on behalf of the University for not having given him adequate opportunity to defend himself against complaints made about him.

2. That all written complaints against Dr Koch and associated file notes that are more than twelve months old that have not been properly dealt with be destroyed.

3. That all written complaints against Dr Koch that are less than twelve months old be dealt with by following a fair and proper process and that they be incorporated into the University's record management system.

4. That in accordance with Clause 26.3.8 of the 'Unsatisfactory Work Performance/Code Procedures' (October 1997), the formal warning and all written notes pertaining to it on Dr Koch's file be destroyed.

(1) Subject to this section, a document is an exempt 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 process involved in the functions of an agency or Minister or of the government; and

14 After having read the Garside Report, I have formed the view that it contains matters of opinion about the applicant as well as advice. Further, it comprises matters in the nature of consultation or deliberation between officers of the respondent in the course of an internal staff complaint investigation and deliberation process. As a consequence, the contents form part of the deliberative process of the respondent involved in the functions of it running a university and matters of staffing issues.

15 Section 5 of the Act makes it clear that it matters little that Garside is an outside agency. As it was employed by the respondent it comes within the definition of officer of the respondent. Section 5 of the Act provides that in relation to an agency other than a council the reference to officer :

Includes a member of the agency, a member of the staff of the agency and any person employed by or for the agency, whether that person is one to whom the provision of the Public Sector Management Employment Act 1998 apply or not.

The authorities have interpreted these words as being wide enough to cover consultants employed by an agency and in fact cover Garside in this situation : see Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347.

16 The applicant submitted that the release of the material contained in the Garside Report would not be contrary to public interest, and thus s 31(1)(b) did not apply. He based this submission on the fact that the respondent was a publicly funded organization and its practices, particularly if there was an allegation of improper practices, should be open to public scrutiny.

17 On the other hand, Mr Batskos, on behalf of the respondent, submitted that to disclose the Garside Report to the world at large would be contrary to public interest. He stated that such disclosure would inhibit the frankness and candour of the parties involved in the conduct of internal staff complaints and investigatory matters. He pointed to the fact that the individuals who were interviewed by those who prepared the report had a choice about the degree to which they were candid and frank, therefore it involved discretionary communications and not one that was required in the fulfilment of an officer's duty. He stated that without a guarantee of confidentiality in the process, there would be serious personal consequences flowing from such process. I agree with the matters put by Mr Batskos and do not believe the matters put by the applicant are of sufficient weight to take away from the respondent's submissions.

18 It is noted, that there have been several letters sent to the Tribunal by persons who have been named in the Garside Report and who gave evidence before those that were investigating. Those persons have all expressed the clear view that they want the confidentiality to be maintained and do not want their name disclosed. Mr Batskos prepared a summary of submissions in relation to s 53A responses. I have read the letters supplied by the people to the Tribunal and, in my view, the summary supplied by Mr Batskos is accurate. Mr Batskos states in the summary as follows :

1. Letters to VCAT dated 26 February 2004 and 4 March 2004

Given a lengthy history of antipathy and hostility displayed towards me by Dr Koch over some years, I request that any reference to me or relating to my personal affairs in the report not be released to Dr Koch or any other person. Any business I might have had with Dr Koch or he with me is long since finished and for my own security and peace of mind, I request that my details be withheld. I particularly rely on section 33(2A) to fully preserve my privacy.

I request that any reference to me or any information relating to my personal affairs in the report not be released to Dr Koch or any other person. The document may disclose evidence given by me in good faith and in confidence to the investigators to assist them to weigh up the balance of probabilities in the matter they were investigating - including professional or personal judgments I may have arrived at in the course of my work. I seek to have all reference to myself and my personal affairs suppressed from any possible disclosure of the sought report.

Former employee of the University who is most distressed about the application due to a history of violence meted out by Dr Koch to this former employee. Incidents include death threats against the former employee and that person's family. The former employee genuinely fears for that person's safety as a result of the possible release.

Wish to have personal affairs information withheld as "I cannot see how my personal affairs have any relevance to Dr Koch's employment situation at Swinburne University".

Wish to have identity withheld from the applicant on the grounds that it affects my personal privacy.

Expressly wishing name and any personal details to remain confidential and withheld in this matter. Dealt with staffing matters in complete confidentiality and wishes that position to remain.

19 Having taken all the matters into account referred to above, in my view, it would be contrary to the public interest within the meaning of s 30(1)(b) for the documents to be released. Any advantage gained by the public knowing the workings of the respondent would be far outweighed by the disadvantage that would be suffered in trying to persuade volunteers to provide information of a similar kind to that provided here in the future. I do not accept, as the applicant has put it, that these documents would, in any way, expose any acts of systematic malfeasance and grave managerial misdemeanours in Australian universities. Such a statement is, in my view, not in reality with what is contained in the Garside Report and is a vast exaggeration of the situation.

20 Further, I take into account that to disclose these documents would be an invasion of the privacy of the individuals therein referred to.

21 Taking all these matters into account, I have formed the view that subject to s 50(4), the exemption pursuant to s 30 has been made out.

SECTION 33 UNREASONABLE DISCLOSURE OF PERSONAL AFFAIRS

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(2) Subject to sub-section (4), the provisions of sub-section (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

"information relating to the personal affairs of any person" includes information--

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

23 To make out the exemption pursuant to s 33, the respondent must show, first that the document in question contains information relating to the personal affairs of any person (other than the applicant). Secondly, whether the disclosure of those personal affairs would be unreasonable in all the circumstances.

24 Section 33(9) makes it clear that information identifying any person or disclosing their address or providing information as to any person's identity, address or location is sufficient to bring it within the definition of personal affairs. In my view, after having read the Garside Report, I am of the firm view that the report does disclose the personal affairs within the meaning of s 33(9) of a number of individuals other than the applicant.

25 Further, I agree with Mr Batskos, when he submitted that :

To the extent that the document contains personal information about the applicant and others, it is submitted that the information is so inextricably intertwined that it would not be practicable to edit out exempt material and provide an edited copy with that exempt material deleted : section 25.

26 Section 33(1) makes it clear that the disclosure must be unreasonable for the document to be exempt. In considering this matter, I am mindful of the fact that the consideration is whether disclosure to the world at large would be unreasonable in all the circumstances, not whether the disclosure to the applicant (armed with certain knowledge or information already) would be unreasonable : see Knight v Secretary of Department of Justice (unreported) Kellam J (2003) VSC 341 at (26). Judge Jones in Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245-246 set out the requirements for the description of what is unreasonable disclosure. He stated :

(The question of) whether a disclosure of ... information would be unreasonable ... requires a balancing of interest : the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of the Government or agencies ... more particularly, this balancing of interest requires a consideration of all the circumstances, including the interest that 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 that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. It is apparent that the purpose of s.33(1) of the Act is to prevent the unreasonable invasion of privacy of third parties.

27 The factors mentioned in Page mean that the Tribunal must engage in a balancing exercise between the right to personal privacy of the individuals whose personal affairs may be unreasonably disclosed by the granting of access to the information, against the object of the Act, to extend as far as possible the right of the community to access information in the possession of the Government agencies.

28 Section 33(2A) requires that when considering the question of unreasonableness, I must take into account whether it would be reasonably likely that disclosure of the information would endanger the life or physical safety of any person. It is noted, that one of the persons mentioned in the s 53A summary, which I have outlined above, is concerned for his/her physical safety. On the other hand, the applicant states that he has never given anyone any reason to have such concerns and that he would not harass anyone. It is impossible for me to make a finding on this matter save and except that I do take into account the person concerned about this matter is taking the matter very seriously. It is likely that even if his/her personal safety is not in danger, he/she certainly has a fear that their personal safety may be in danger. In Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; (1989) VR 836, the Full Court of the Supreme Court of Victoria held that the words reasonably likely should have their ordinary meaning. They mean a chance of an event occurring or not occurring which is real - not remote or fanciful. In this case, I glean from the letters of objection to the release of the information that the person has real fear for his/her safety and I do not have any reason to believe that such fear arises out of anything that is fanciful.

29 The applicant stated that he requires access to the Garside Report so that he can acquaint himself with it and it would help him to obtain redress from perceived wrongs done to him by the Head of the Business School of the respondent. However, the applicant has had the opportunity to read the report or at least substantial parts of it and he must be aware of its contents. This in effect would give him the general opportunity should he so desire to seek redress that he refers to. Further, it is noted, that the test for unreasonableness is not just to the applicant but to the world at large. It seems to me that it is a considerable time since the events that the applicant complained of happened to him at the university, and that if he intended to seek redress in relation to those events, he surely would have done it by this time. Thus, I form the view that his real purpose is not so much to seek redress but more for the purpose of indulging in a crusade or for the purpose of embarrassing or harming otherwise the respondent and/or the persons referred to in the Garside Report.

30 Further, I take into account that the information contained in the document is not about the applicant as such but is a report as to the validity of claims made by him about others. There are references in the report to numerous individuals who have been identified. I thus take into account matters of privacy concerning those individuals and those individuals' express and stated wishes that they do not want to be identified to the world at large. After having read the report, I fail to see how disclosure of the personal affairs of the individuals therein referred to is in the public interest or how such disclosure would, in any way, serve to achieve any public interest reasons put forward by the applicant.

31 Further, I take into account that the recommendations of the report have in fact been fully implemented.

32 The applicant has submitted that there is no information of a genuinely personal nature contained in the report. However, looking at the definition of "personal affairs" contained in s 33(9), in my view, this submission is plainly wrong.

33 The applicant has also submitted that the public has a justifiable and vital interest in obtaining full access to the report, and that this interest overlaps similarly with vital public interest revealing all acts of gross injustice, discrimination and malfeasance, particularly those that occur in publicly funded institutions. In my view, this statement is a gross exaggeration of that contained in the report and, in fact, the report contains matters more of a private nature than a public nature or any matter that I believe would be of interest to the public.

34 Thus, weighing and balancing all the factors as I am required to do, I have formed the view that not only would release of the report be disclosing the personal affairs of a number of people, but such disclosure would far outweigh any interest the public may have in this matter. Further, I take into account, the likelihood that the release could cause in relation to the stress and anxiety to those who do not want their personal information released : See Reilley v Kilmore and District Hospital (1993) 6 VAR 16.

35 I have considered pursuant to s 25 as to whether it is possible to excise the personal information contained in the report so as the balance of the report may be released. However, after having looked at the report, in my view, the personal information therein contained is so intertwined with the other information that to release the report without the personal information would make the same meaningless and possibly even lead the reader of such an edited document to draw erroneous conclusions. I agree with Mr Batskos that, to attempt to edit the document would effectively reduce the document to something which was either meaningless, misleading or unintelligible : See Re Stewart and Department of Tourism, Sport and the Commonwealth Games (2003) VCAT 45.

36 Thus, the exemption has been made out pursuant to s 33 of the Act. The exemption having been made out pursuant to s 33 of the Act, it is unnecessary for me to consider s 50(4) of the Act in relation to that section as it does not apply to a s 33 exemption.

37 Having found that the document is exempt pursuant to s 30(1) and s 33, in my view, it is unnecessary for me to consider the further ground of exemption that is claimed, viz 35(1)(b).

38 It is noted that I have not considered s 35(1)(b), and s 50(4) does not apply to s 33. However, as I have found that the exemption applies pursuant to s 30(1), it is necessary for me to consider whether the public interest override contained in s 50(4) applies to s 30(1) although the substance of this matter has been largely considered pursuant to s 30(1)(b).

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

40 Mr Batskos in his submission summarised the view of the Court of Appeal in Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 15 VAR 360 where the Court of Appeal discussed what was necessary for the s 50(4) override to apply to an exempt document. Mr Batskos stated :

* The override cannot be invoked simply because the Tribunal holds the opinion that it is in the public interest that the exempt document be released. Rather, the question is whether the public requires the release of the document. That is, demands or necessitates disclosure.

* This is a question of fact for the Tribunal to determine and may only be determined in the affirmative if the considerations of the public interest are so strong as to override those factors that confer exempt status on the document in the first place.

* How strong the public interest considerations must be to prevail in a particular case depend on the nature and strength of the factors that confer the exempt status on the document in question.

41 In my view, Mr Batskos' summary is accurate. In relation to the public interest override, the applicant made the following points, which I summarise as follows :

a) the report deals with an investigation into the discharge by the Head of the Department of official duties and does not deal with private matters;

b) the report deals with unlawful practice by the Head of the Department and unacceptable managerial matters (systematic denial of natural justice, issuing an entirely baseless warning in writing against the applicant, systematic, malicious and grave misrepresentations of the applicant's work performance);

c) it is in the public interest to expose any acts of systematic malfeasance and grave managerial misdemeanour in Australian universities;

d) the release of the report would serve to uphold the principle of equality before the law as well as the applicant's fundamental rights as a person;

e) the applicant has a right to appropriate remedy for past violations of his rights by the respondent and its officers;

f) the applicant has a right to expect the Tribunal to assist him in asserting his right as a person and in obtaining remedy for past acts that violate his fundamental rights.

42 After having read the report, in my view, there is nothing in the report which would require it to be released for the sake of public interest. It is a report into the investigation of wrongs claimed by the applicant against him by the Head of the Department. It is a document that has, in my view, no public interest and only has a private interest to the applicant and perhaps those that are mentioned in it. There is nothing that I have seen in the report or in the evidence that has been put before me to show that there are considerations of public interest so strong as to override the factors which conferred the exemption.

43 Further, I note that the use of the extravagant language by the applicant does nothing to assist his case. It is language that in no way really applies to any of the matters contained in the report.

44 Disclosure of the contents of the report to the world at large would not benefit the public in general. I formed the view that there is no public interest in favour of the disclosure to the world at large. The most that can be said in this particular instance is there is a curiosity or private interest to the applicant. However, it has been held on numerous occasions that where there is no public interest or disquiet about the particular matter, only a matter of personal curiosity, that is not a matter for s 50(4) to apply. See Ambikapathy v Victorian Legal Aid (unreported VCAT Macnamara DP 27 August 1999).

45 Further, I take into account that disclosure of this information would hinder the respondent and like institutions from obtaining such information in the future. It is noted that the information was given to the investigators on a purely voluntary basis and not under compulsion. It is also noted that if there had not been some limited guarantee of confidentiality, it is likely that the information may not have been given. Under those circumstances, in my view, it is desirable that people who give such information should be able to have some confidence that the information will not be disclosed to the world at large.

46 Taking all these matters into account, I am of the view that the public interest, in this particular instance, does not require that the Garside Report be released.

47 The exemption pursuant to s 33 is made out as well as the exemption pursuant to s 30(1). Further, the public interest override contained in s 50(4) does not apply to the Garside Report. It is also noted that I did not consider the exemption claimed pursuant to s 35(1)(b) as exemption was made out pursuant to two other sections. Under these circumstances, the application of the applicant fails and the decision of the respondent will be affirmed.

Sector Management Employment Act 1998

Koch v Swinburne University [2004] VCAT 1513

At a glance

Court

Decision date

Source

Judgment (86 paragraphs)

Koch v Swinburne University [2004] VCAT 1513 (3 August 2004)

Parties

Legislation Cited (1)