Lonsdale v University of Sydney

NCAT Administrative and Equal Opportunity|2015-09-14

Solicitors: Tom Lonsdale (Applicant in person) Heesom Legal (Respondent) File Number(s): 1510239

Reasons for decision

On 8 May 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents, which were of professional interest to the applicant. These documents were held by the respondent agency.
That initial application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) on 29 September 2014 whereby the applicant was seeking copies of material relating to the University's research funding and commercial relationships between the University and pet food manufacturers. Whilst the respondent provided some of the information in response to the application, the respondent withheld specific items of information because in their view there was an overriding public interest against disclosure of the information. This decision was made on 11 November 2014.
The applicant sought an internal review of that decision on 5 December 2014. On 2 February 2015 the respondent made a new decision whereby further data or information was released to the applicant, however some information continued to be withheld under the provisions relied upon in the initial decision.

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time. The application sets out the following grounds: Public interest essential that Australians' 7 veterinary schools provide full, transparent account in respect to research and teaching.

The Legislative Provisions

The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevantly section 14 provides: 14 Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
The table to section 14 provides the various criteria or considerations referred to in section 14 (2). The table lists seven areas whereby relevant public interest considerations against disclosure are set out. Relevant to this application, the Agency relied on the provisions outlined in paragraph 12 below (being public interest considerations) against disclosure of some of the information as well as conclusive presumptions against disclosure as set out in paragraph 11 below.
In the decision under review, being the decision of 2 February 2015, the respondent refused access to some of the information sought by the applicant on the basis that there was a conclusive presumption against disclosure of the information. That material it was claimed was subject to legal professional privilege.
The relevant provision of the GIPA Act provide: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
In addition, from the decision of 2 February 2015 the respondent appears to have refused access to some of the information on the basis that there was a public interest consideration against disclosure sufficient so as to override the general presumption in favour of disclosure of the relevant government information. In this regard the respondent agency had identified the matters outlined at Clauses 1 (g) and 4 (b) and (d) to the table to section 14 of the GIPA Act. 1. Those particular clauses state: Responsible and effective government 1.There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case of generally): (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, ….. Business interests of agencies and other persons 4.There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (b) reveal commercial-in-confidence provisions of a government contract, … (d) prejudice any person's legitimate business, commercial, professional or financial interests,
However, by the time of the hearing the respondent had expanded the number of grounds under the table to section 14 for which it believed that the public interest against disclosure provisions outweigh the general presumption in favour of disclosure. Those extra considerations were clauses 1 (f), and 3 (a). Those particular clauses state: Responsible and effective government 1.There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case of generally): (f) prejudice the effective exercise by an agency of the agency's functions, ….. Individual rights, judicial processes and natural justice 3.There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information,

Conduct of matter before the Tribunal

The matter was heard over a number of sittings of the Tribunal. Initially there was an interlocutory hearing on 14 September 2015 which dealt with the refusal of the Divisional Registrar to issue various summons on behalf of the applicant. The substantive matter was heard over two days on 17 September 2015 and 13 November 2015.
Between those hearing dates the applicant had sought leave to appeal the decision arising from the summons hearing of 14 September 2015. The Appeal Panel reserved its decision on that matter on 10 November 2015 and advised the Tribunal that the substantive matter could not be concluded until such time as the Appeal Panel had decided the appeal issue. The part heard hearing proceeded on this basis on 13 November 2015. Subject to the pending decision of the Appeal Panel, the evidence of the parties was concluded on 13 November 2015.
On 21 December 2015 the Appeal Panel gave a decision in the matter, refusing leave to appeal. - Lonsdale v University of Sydney [2015] NSWCATAP 277. As a result the substantive proceedings could now be decided on the basis of the evidence and material before the Tribunal and the matter was deemed reserved as at 22 December 2015.

Application to lead further evidence.

In February 2016 whilst the matter was reserved, the applicant provided further material to the Tribunal. This material related to a decision of a Freedom of Information (FOI) application in another jurisdiction seeking access to similar documents. It was unclear whether this material was served on the respondent.
In late March 2016 the applicant wrote to the Tribunal seeking to tender further material and reopen the evidence in the proceedings. On this occasion the applicant had copied the material to the respondent and the Information Commissioner. The material included some submissions by the applicant which sought to establish deficits with aspects of the respondent's evidence and submissions at hearing.
The Divisional Registrar wrote to the respondent on 4 April 2016 seeking their views of the material provided by the applicant post hearing. On 8 April 2016 the respondent replied indicating that it opposed the receipt of any further material after hearing. In summary the two basis were that in the respondents view the material was either not relevant to the task to be undertaken in deciding the matter, or that the matters raised are already matters to be considered by the Tribunal. In addition the respondent rejected certain assertions made by the applicant, and countered that on the contrary it was asserting its legal rights in an acceptable and appropriate manner.
On 11 April 2016 the Divisional Registrar advised the applicant of the respondent's position on his recent correspondence and material. On 26 April 2016 the Tribunal received the applicant's response. The response was critical of the respondent's position and agitated further issues concerning the prior conduct of the proceedings, conduct of the respondent and its officers, and matters relating to bias of the Tribunal.
These matters have not been specifically responded to as in the absence of consent by the respondent, the evidence and submissions in the matter was finalised as at 22 December 2015. It appears that the contact by the applicant from March 2016 onwards has been initiated following national television media coverage on aspects of these proceedings (the applicant's FOI experiences) concerning matters relating to companion animal health and nutrition.
It appears that no formal application has been made by the applicant seeking to address the matters described at paragraph 20 (above), in that there was no application to recuse (post hearing), or further appeal arising from the 21 December 2015 decision. The Tribunal does however have an obligation to consider the application.
Having examined the material (to the extent that it is referred to in the Applicant's March and April correspondence), I note that it concerns (in the main) matters relating to the nutritional value of pet food produced by major pet food manufacturers operating in Australia. The general import of the media articles concerns claims that pet food available in supermarkets and retail / grocery stores is harmful or otherwise detrimental to companion animals (in this instance - cats). The respondent is referred to in respect of its corporate sponsorships with pet food manufacturers. The material asserts that University research established findings which support the general assertion (of the harmful aspects of manufactured pet food) but that the respondent declined to publish such findings.
In general terms the assertions of the applicant in his March and April 2016 material, re-ventilate his concerns about the practices of the respondent, and their practices in respect of defending their decision under the GIPA Act. These concerns were regularly raised by the applicant during the course of the hearing.
At this juncture it seems appropriate to set out the applicant's personal factors for making his GIPA Act application. Section 55 of the GIPA Act provides that a consideration of specific personal factors of the application can be taken into account when deciding / considering the overriding public interest against, or matters in favour, of release of the information.
Section 55 provides that: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) 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. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
The applicant is a Veterinary Surgeon whose practice includes companion animals, and in particular dogs. The applicant holds a view that the best food for such pets is natural and fresh food. The applicant asserts that this is particularly so in respect of an animal's ability to chew and develop their jaw and teeth and general well-being. Part of the applicant's position is that such food promotes proper mouth hygiene, general health, and resilience in these pets. On the contrary the applicant asserts that manufactured pet food is detrimental and harmful to such animals, and at times results in reduced life expectancy, chronic conditions and diseases, leading to premature fatalities.
The Tribunal holds no views about the merit (or otherwise) of such assertions, but notes that these arguments were consistently raised by the applicant in proceedings before the Tribunal. In the applicant's view, having regard to the matters which he asserts are determinative (the matters of the detrimental diet), he also contends that any support or association with mass produced pet food manufacturers is unsustainable from a scientific and ethical basis and as such matters under section 12 (2) Note (e) of the GIPA Act come into play. Whilst matters under section 12 of the GIPA Act are to be considered by the Tribunal (as are the section 55 considerations), those matters are not solely determinative of how the Tribunal must reach a position in this jurisdiction.
Section 12 of the GIPA Act provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
During the hearing of the matter the issues relating to the applicant's professional views / beliefs and motivations for the applications were at times referred to as the primary or substantive 'non GIPA issue'. This occurred in order to inform the applicant that the Tribunal understood the basis for his pursuit of the information, and place the application in a context. However at regular times from the initial Planning Meeting all the way through to the final hearing, the applicant was advised that these matters were not the significant basis for which the Tribunal would both approach and decide the GIPA matter. However as the applicant initially ran his case along such lines, it was necessary for the Tribunal to regularly intervene and remind the parties of the discrete nature of the task before it.
Having considered the nature of the material sought to be tendered by the applicant in his March and April 2016 correspondence to the Tribunal, and noting that the role of the Tribunal is to decide the matter primarily on the basis of whether the respondent has made the correct and preferable decision in making its decision under the GIPA Act, I decline to reopen the evidence post December 2016. In making this decision I have had regard to the submissions of both parties, as well as the matters raised before the parties on regular occasions during the hearing dates. (see paragraph 30 above). In addition I note that the material filed by the applicant in February and March 2016 was unsolicited by the Tribunal and the arguments raised were regularly canvassed (in similar form) before the Tribunal in 2015 and ruled upon.
Having noted the numerous objection rulings during course of the proceedings, and the need to make the proceedings focus on the GIPA considerations rather than 'non GIPA issues', in my view there is no lack of procedural fairness or denial of natural justice in dealing with the issue at this time and in this manner. In forming this view I have had particular regard to the fact that the evidence was closed (after the completion of the hearing) and finalised in late 2015 with the decision of the Appeal panel freeing the Tribunal to adjudicate on the application. In addition, following the decision of the Appeal Panel (in respect of considering whether the Tribunal miscarried in not allowing the receipt of potential evidence in refusing to issue summons) I have had particular regard to the matters outlined at paragraph 35 of the Appeal Panel decision.
In those circumstances the application to lead further evidence is refused.

The Hearing

The matter was heard in late 2015 over a number of days. As indicated above, a few days prior to this hearing the Tribunal held a preliminary hearing on the question of leave to issue summons by the applicant. The respondent opposed the application. At the preliminary hearing the Tribunal delivered an Ex-Tempore decision refusing leave to issue summons. That decision was subject to an appeal by the applicant which was unsuccessful.
The applicant represented himself at the hearing and was assisted at times by friends, acquaintances and or colleagues. The fact that the applicant had no formal legal training was regularly raised by him during proceedings, especially in response to numerous objections that the respondent raised. In this regard the Tribunal attempted to assist the applicant in indicating the basis and principle behind several of the respondent's objections to his examination of their witness. The respondent was represented by Counsel and instructing Solicitors.
The substantive hearing on 17 September 2015 began with a clarification of the respondent's altered position on the GIPA request, and confirmed the reliance on Clause 5 of Schedule 1, and a weighting reliance on Clause 1 (f), (g), 3 (a), 4 (b) and 4 (d) of the Table to section 14. (See paragraphs 11-13 inclusive above).
The respondent sought to call one witness, whilst the applicant foreshadowed four possible witnesses including the applicant. As is the usual practice in GIPA Act proceedings, as the onus is on the respondent agency to substantiate its decision, the respondent proceeded first with both evidence and submissions.

Respondent's evidence

The respondent filed both 'open' and 'closed' or confidential evidence in the proceedings.

Exhibit 'R- 1' Affidavit of Olivia Perks sworn 13 July 2015 and annexures.
Exhibit 'RC- 1' Confidential version of R 1.
Exhibit 'RC- 2' Confidential material subject to legal privilege.
Exhibit 'RC-3' Confidential material subject to section 14 considerations.

The respondent also filed both open and confidential written submissions in the proceedings.

Evidence of witness Ms O Perks

Ms Olivia Perks was called by the respondent and gave evidence in the proceedings. Ms Perks affidavit sworn 13 July 2015 was adopted without objection or amendment in her evidence in chief.
In cross examination the applicant asked a number of questions of the witness. The majority of these questions were objected to by Counsel for the respondent. Objections focused on the relevance of specific questions, whether the question concerned a matter that the witness was able to answer or give evidence about, or whether certain matters constituted questions.
The Tribunal attempted to deal with these matters by instructing the applicant as to a more productive approach / procedure. However the significant portion of this examination was in my view unproductive, with only minimal evidence being received. In my assessment the basis for this was the ongoing issue impacting on the conduct of these proceedings. That is the difference between the case that the applicant wanted to run, and the case that he was entitled to run having regard to the provisions of the GIPA Act, the Administrative decisions Review Act 1997 (the ADR Act), and the Civil and Administrative Tribunal Act 2013 (the CAT Act). To a lesser extent the Evidence Act 1995 was also impacting on the line of questioning and approach by the applicant, especially in respect of notions of unfairness to the witness.
A significant portion of the questioning of the witness appeared to proceed on a misunderstanding that the witness had sole responsibility for conducting the agency's initial response to the GIPA Act application. The applicant upon coming to terms with the evidence of the witness deferred to the fact that the Tribunal and Registrar had denied him the right to call further witnesses from the respondent. The relevant point however to arise from the evidence was that neither the proposed witnesses or this witness was responsible for making the decision under the GIPA Act.
In my view this issue can best be summarised by an observation that the proceedings are not about the process administratively or otherwise that was engaged in by the University. The proceedings relate to whether the University (respondent) made the correct and preferable decision having regard to the terms of the GIPA Act.
The witness confirmed that she was not aware of a NSW Government Sector Model Litigant Policy. The applicant gave the witness a copy and the witness read the policy. The witness was taken to paragraph 4 of her affidavit where she deposed what her areas of responsibility were in respect of her role as Senior Solicitor (Corporate and Commercial). The witness gave evidence that she had no role whatsoever in the decision making process in respect of the GIPA application.
The witnesses knowledge of the matter was limited to a chronology or history of the steps in receiving the application, obtaining information, assessing information, consulting about the information etc.
The witness was asked about matters pertaining to correspondence received as part of the GIPA Act consultation process. These matters were set out in her affidavit. However the witness gave evidence that she was not personally involved with the consultations between the University and each of the pet food manufacturers, Hills Pet Nutrition Pty Ltd and Royal Canin Australia.
The witness was eventually taken to the terms of the commercial arrangements between the respondent and one of the pet food companies. The witness was asked about what information of this nature was in the public domain. The witness gave evidence that her affidavit stated that such information was not in the public domain, and that this view was based on advice that she had received.
In closing her open evidence the witness re-iterated that she was not responsible for processing or deciding the GIPA Act application.

Closed Hearing on section 1 4 considerations.

The respondent sought a confidential hearing in accordance with section 107 of the GIPA Act.
The section provides that: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. The Tribunal dealt with the material in the Confidential Exhibit RC1, RC2 and RC3.
In my view it is not necessary to incorporate what transpired in the brief confidential session by way of confidential reasons. Suffice to say that in respect of a small (but not insignificant) portion of the data, the respondent consented to release to the applicant. This position arose as a result of the Tribunal scrutinising the data in confidential session, both line by line and contextually. In respect of RC 3 the respondent needed to seek instructions on release of two items at the conclusion of the confidential hearing.

Applicant's Evidence

The applicant filed the following evidence and material in the proceedings:

Affidavit of Tom Lonsdale sworn 13 August 2015 Exhibit 'A 1'
Two books authored by the applicant and a video (USB stick).
Written submissions filed 14 August 2015.
Written submissions filed 28 August 2015.
Written submissions filed 11 September 2015 (summary of affidavit annexures).
Written submissions filed 13 November 2015.

Applicant's Oral evidence

The applicant in his evidence in chief commenced with setting out the history of his involvement in the nutritional impacts of processed pet food. His evidence was that he 'blew the whistle' in 1991, and was supported by an academic colleague.
In 2013 he commenced a research project on the issue making FOI applications to the seven veterinary schools in Australian Universities. The applicant stated that veterinary education is founded on sound principles and is open. The applicant gave evidence that in his opinion vet science endeavours and education need to be founded on strong evidence and sources of information should remain open.
In evidence the applicant stated that he has concerns that students are 'offered up' to 'junk food companies'. In the applicant's view 'what is taught is the rubbish'. The applicant stated that he has concerns that the arrangements between the respondent and the pet food companies remain secret and that this is in breach of their fiduciary responsibilities.
The applicant stated on oath that the purpose of his project is to 'disseminate to the public what is done in their name.' 'Citizens pay taxes' etc. in part 'to fund Universities and in this instance citizens would be concerned and what was occurring in Vet science'.
It was submitted by the applicant that the impact of these practices and the cost to the community is enormous. The applicant asserted that his evidence shows a dog was tortured every day of eight years of his life due to eating a processed diet. (This dog was included in one of the five short videos that the applicant sought for the Tribunal to view). It was submitted that due to his professional intervention the dog had a passable 9th and 10th year of life.
Another example was referred to in respect of a small dog that had enlarged organs, swollen belly and rotten teeth. It was submitted that neglect was a form of torture, and that the situation is far worse now than it was when the applicant 'blew the whistle' in 1991.
In 1993 the applicant went to New Zealand and gave a lecture about these matters. In the early 1990's a Dr Budgen came to the applicant's Hawkesbury based Vet Practice for a breakfast meeting (1993).The applicant in his oral evidence stated that Dr Budgen told him to write everything down and he would publish it.
At the conclusion of the applicant's oral evidence, there was discussion concerning two potential witnesses for the applicant who were available to give evidence. It was conceded that their evidence would concentrate on the broader (non GIPA) issues relating to the vet research and allegations concerning the practices of the pet food manufacturers. These potential witnesses were academics and it was submitted were not in a position to give any evidence relevant to the issue at hand in the proceedings. As a result no other evidence was given in the hearing of the proceedings.

Submissions - adjourned hearing

The hearing recommenced on 13 November 2015 and commenced with another confidential session under section 107 of the GIPA Act. This confidential session predominantly related to the respondent making submissions concerning confidential material. Like the earlier session, I take the view that there is no need to specifically refer to the confidential session in any detail as a set of redacted reasons for the respondent's benefit.

Open Submissions - Respondent

The respondent conceded and accepted that there are factors in favour of disclosure of the withheld material.
They submitted that Exhibit 'RC-3' is subject to client legal privilege in accordance with Clause 5 of Schedule 1 of the GIPA Act. 'RC-2' it was submitted contains the five public interest considerations against disclosure to which significant and determinative weight should attach. Clause 1 (f) and (g), 3 (a), and 4 (b) and (d) of the Table to section 14 were said to apply.
In respect of the conclusive presumption against disclosure material (Cl 5 Sch 1) the respondent referred to the case of SL v University of Sydney [2011] NSWADT 65. Reference was made to paragraphs 23 - 26 of that decision. 23. The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 62 and 73). 24.As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 : 'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].' It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115 ; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VicRp 61; [1984] VR 697 (Young CJ). 25.The University provided evidence that was not challenged by the Applicant in relation to the facts claimed to give rise to the privilege exemption. See affidavits of Kerry Rehn of 14 and 29 September 2010. 26.As a result of that evidence it is clear that the legal practitioners involved possessed real independence in the giving of advice. They each held a practising certificate in New South Wales and were employed within the University's Office of General Counsel an independent professional service unit of the University or, in the case of Sarah Heesom after 1 May 2007, as an external legal advisor to the University. The lawyers within the Office of General Counsel are expected to comply with the standards of professional conduct required of the legal profession.
The respondent submitted that the correct approach was to ascertain whether the material itself gave rise to the privilege. It was submitted that the contents of the documents show that the situation related to the giving of legal advice.
In respect of Exhibit 'RC-2' it was submitted that the documents themselves primarily relate to the commercial interests of third parties.
The Tribunal went into a further confidential session under section 107 of the GIPA Act and I adopt the same approach as that set out at paragraph 62 (above). The Tribunal again worked through the documents which were contained in the confidential exhibits, predominantly focusing on documents 11-23 from Exhibit 'RC-2'.
The respondent indicated at the end of the confidential session that it was content to close proceedings. The applicant therefore gave brief closing submissions as to his concerns about the conduct between the University and the pet food manufacturers. The applicant submitted various matters and characterisations of those entities that were extremely adverse to those entities.
The applicant indicated in closing that he felt tainted that such proceedings could be conducted (by the respondent) in the manner that they had. In his view the respondent was avoiding the real evidence and only putting on evidence in a manner which did not confront (or in the applicant's view) properly addresses the real considerations.
The applicant submitted that the respondent is the people's servant and in effect should work towards citizen's interests. Specifically the respondent referred to paragraphs 1, 2 3 and 4 of his submission filed / dated 13 November 2015. Those points referred to broad public interest type concerns and what the applicant submitted were relevant considerations. They referred to trade practices matters, potential legal claims by pet owners, scientific findings and matters pertaining to ignoring possible animal cruelty.
The respondent gave brief oral submissions in closing. Predominantly in addition to their written submissions. In written submissions they noted that the matters giving rise to the applicant's broad public interest concerns were (in their view) merely his opinion, and were neither determinatively adjudicated by the scientific community, or capable of being agitated in these proceedings.
In closing oral submissions the respondent submitted that the University wished to state for the record that it had only acted in an orthodox manner in deciding the GIPA Act application, and its position in these proceedings.

Other Evidence

In accordance with undertakings at the hearing, the Tribunal has viewed (in chambers) the five short videos provided with the evidence and material filed by the applicant, prior to making a decision. The parties were alerted to this during the hearing. The Tribunal however has not read the two books authored by the applicant and filed with the Tribunal. The respondent raised initial objections to the tender of those books, but the Tribunal determined to accept them as an aide memoir to provide some further context to the applicant's arguments and submissions. To that extent and consistent with the ruling the books have been only looked at in a cursory manner to note their purpose, and in this regard I note their reference during some of the 5 videos.
In my view this position was consistent with the provisions of the Administrative Decisions Review Act 1997 which provides at section 63 the powers and procedures when conducting an administrative review.
Section 63 of the ADR Act provides the following: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

Consideration

I have carefully considered the arguments and submissions by both parties in this matter. Whilst I have only stated some of the oral and written points above, I have considered all evidence and material placed before the Tribunal in determining this application, even if I have not specifically referred to it in these written reasons.

Clause 5 Schedule 1 claim - Legally Privileged

In respect of the material for which the respondent claims a conclusive presumption against disclosure, I refer to my approach in the matter of Bayne v Department of Environment and Heritage [2016] NSWCATAD 52. In that case I observed the following at paragraphs 13 to 18. 13. The relevant provision of the GIPA Act provides: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 14. I have examined the material provided on a confidential basis by the respondent. The material provided to the Tribunal does (to my mind) constitute material which falls within the criteria of Clause 5 of Schedule 1. 15. Whilst it is an internal legal opinion or advice, I note that the respondent has not waived privilege. In addition I note that it refers to other documents (which are not attached to the material before the Tribunal), but it is clearly providing advice about those documents, including their import and meaning, and their purpose and impact if any on the agency. 16.In the case of Hutchinson v Walcha Shire Council [2015] NSWCATAD 132 at paragraphs 54 and 55 I observed the following: Legal Professional Privilege (Sch 1 Cl 5) 54.The general provisions relating to the existence of legal professional privilege are as follows. The material must be:◦In the context of a client and lawyer relationship, ◦That there is a confidential nature to the communication or the document(s), ◦The communication or the documents was brought into existence for the dominant purpose of either: (a) assisting the client in obtaining, or the lawyer to give or provide legal advice or services, (b) for use in either existing of proposed / contemplated proceedings / litigation. 55.These provisions have a current statutory authority within sections 118 and 119 of the Evidence Act 1995 (NSW). 17. In my view after examining the withheld material, it is clear that the identified documents constitute material that would fall within the scope (on any objective analysis), of material referred to in paragraph 16 above (as in the case of Hutchinson). In addition the identified material does appear to be in scope of the GIPA Act request of the applicant. 18.Whilst the material is clearly within the scope of the GIPA Act request, and thereby of possible interest to the applicant, and (given the nature of the relationship between the applicant and the material sought) possibly of high relevance to the applicant, because the material falls within the scope of Schedule 1, that is not determinative of release. Personal factors of the application do not come into any assessment of this material (as per section 55 of the GIPA Act) as the material is conclusively presumed to have an overriding public interest against disclosure under the GIPA Act.
In addition I note the matters referred to by the Tribunal in the case of Tebutt v Minister for Lands and Water [2015] NSWCATAD 95. In that case at paragraphs 30 to 35 when conducting a different set of facts, the Tribunal observed the following concerning the preconditions for the claim. Whether information would be privileged from production in legal proceedings 30.Section 118 of the Evidence Act 1995 provides as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 31.The term "client" is defined in s 117 of the Evidence Act 1995 to include, relevantly: a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), ... (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory,... 32.Section 118 of the Evidence Act 1995 is to be considered through the lens of s 131A of that Act, since cl 5(1) of Schedule 1 to the GIPA Act refers to "information that would be privileged from production in legal proceedings on the ground of client legal privilege" (emphasis added). Section 131A makes provision for a court to determine whether information is privileged from production in legal proceedings, as follows: 131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. 33.Thus, s 118 of the Evidence Act 1995 is to be read with necessary modifications as required by s 131A, for the purposes of considering the application of cl 5(1) of Schedule 1 to the GIPA Act. 34.The privilege in s 118 only applies if a confidential document or communication is prepared or made for the dominant purpose of a lawyer providing legal advice to the client. The evidence establishes that Mr Schulz is a "lawyer" within s 118 and that his advice was confidential. It is apparent from the advice he prepared (at pages 9-12 of the respondent's materials), and from Mr Schulz's affidavit, that it was prepared for the dominant purpose of him providing legal advice. I also accept that summaries of the advice and documents recording instructions to provide legal advice attract the privilege in s 118(c), if they are prepared or made for the purpose of providing advice to a "client". 35.It remains to be considered whether the advice and other documents were prepared for the dominant purpose of providing advice to a "client" as defined.
Having considered that material (as submitted by the respondent in these proceedings), in my view the matters I observed in the cases of Bayne and Hutchinson at [78] apply to the contentions information in the current proceedings. In my view Ms Perks open evidence establishes the existence of the necessary preconditions and matters capable of giving rise to a claim of legal professional privilege.

Section 14 table 1 Clause 1 (f) - prejudice effective exercise of functions.

The respondent submits that release of this information could reasonably be expected to create this result.
The Tribunal has previously examined the meaning and approach to terms 'could be reasonably expected to' in prior GIPA Act decisions which themselves have drawn on statutory interpretation and precedent from Superior Courts. In Flack v Commissioner of Police (NSW) 2011 NSWADT 286 the Tribunal reiterated that there must be an objective assessment of the matter. At [41-43] the Tribunal observed: 41. The word 'reasonable' in the context in which it appears in clause 1 and 3 of the Table is that set out by the Tribunal in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That decision concerned the construction of the words 'could be reasonably expected to' in clause 7(1)(c), of the Schedule 1 of the repealed FOI Act. These words were also contained in clauses 4, 4A, 5, 13(b), 14, 15, and 16 of Schedule 1 of the repealed Act. At [25] the Tribunal gave the following explanation on the accepted construction of these words: '25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. 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.' 42. That is, the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities. 43. In my view, the information in dispute if disclosed could reveal personal information about persons other than the applicant or her husband. To the extent the information is personal information about the applicant and her husband, I am satisfied that given the context in which this information is contained that if it is disclosed, that disclosure could reasonably be expected to reveal the personal information of the other persons.
The respondent submits that disclosure of this information would have an adverse effect on its current sponsorship arrangements, due to the confidential commercial information being revealed to other entities including competitors. This it was submitted would result in both the inability of current sponsors to have faith in the respondent's ability to maintain it's existing confidentiality arrangements with a sponsor, and also by removing negotiating advantage, limit the commercial effectiveness of any arrangement resulting in lower income and ability to organise conferences to the benefit of students in the Faculty.
In my view on the minimal evidence before the Tribunal, but having regard to the information itself and the submissions of the respondent, on an objective assessment such a situation would be likely to occur on the balance of probabilities. In addition it appears that such a situation would ultimately be contrary to the public interest. Therefore I find that this ground is made out by the respondent.

Section 14 table 1 Clause 1 (g) - found an action for breach of confidence etc.

The respondent submits that release of this information could reasonably be expected to create this result.
It is clear from the evidence and material submitted in confidential session, that the information was both received and developed (through negotiations) in a confidential context. Both entities or parties sought confidentiality. Having examined the confidential material, noting the terms of the agreement and having regard to the cases which set out that obligation, it appears that it could be reasonably expected to found such an action against the respondent.
In the case of Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277 the Tribunal examined a similar provision the Freedom of Information Act 1989. At paragraphs [60-62] the Tribunal examined a similar provision in respect of individual employee data. the Confidentiality Exemption (i) Clause 13(a) Would there be a breach of confidence action available? 60 The applicant submits that "while it may be inferred that employees expect that data such as their salary and leave entitlements have some degree of confidentiality attached to them, there is no evidence that access to agency data by the applicant would lead to the revelation of such confidential information to the applicant." 61 This argument is misconceived. The evidence from both Dr Young and Ms Grisard is that in a small number of cases agency-level data would enable the applicant to identify individual public sector employees because of a unique combination of factors. This problem might arise especially in relation to individuals in certain small agencies, but could occur where an individual worked in a section of a large agency. This is because the data are not necessarily aggregated into cells of six units at agency-level. 62 The Department undertook, in the Code and in the other information given to public sector employees, to keep that information confidential in the sense that it would not be used to identify individuals and would only be distributed in a form which did not allow the identification of individuals. In my view, the Code imposes an enforceable obligation of confidentiality upon the respondent. 63 While the vast majority of the Profile data could, on the evidence before me, be released in a form which would not breach any obligations of confidentiality, there can be little doubt that the release of the Profile data as a whole package or document, would entail a breach of confidence in certain cases and would therefore found an action for breach of confidence by those individuals.
In my view the reliance on this ground is made out, and in addition the public interest consideration in withholding the information is significant. I make a finding to that effect.

Section 14 table 1 Clause 3 (a) - reveal an individual's personal information.

The respondent submits that release of this information could reasonably be expected to create this result.
I agree that the evidence of the withheld information provides data which would meet the precondition of personal information (as defined in the GIPA Act) and that the release of it could reveal such information. The question however is what weight should be given to this criteria having regard to the general terms of the GIPA Act, and the presumption in favour of disclosure.
The respondent submits that: "The withheld information includes the names of individual employees of Royal Canin and Hill's Pet Nutrition. Those employees are not engaged in the exercise of public functions and their names could constitute 'personal information' as defined. The University submits that disclose of their names could reasonably be expected to reveal several individuals' personal information." Whilst I accept those propositions, in my view they are not determinative. The mere fact that such a matter would occur is not sufficient to allow the consideration against disclosure to override the presumption in favour of disclosure.
In my view the information is fairly benign. It does not reveal any aspect of the private opinions or beliefs of the individuals concerned. Having considered the material it appears that whilst their signatures and direct telephone numbers should be withheld, possibly under the provisions of Clause 3 (b) to the Table to section 14 (which I note that the respondent does not rely upon), their identities in my view should be released. The mere fact that 'non-Crown' information becomes held by the Crown, does not re-characterise that information of itself. Once a citizen or corporation provides or shares data or information with the Crown (State of NSW) it broadly becomes subject to the GIPA Act.
Large swathes of such information are immediately quarantined from the preliminary objects of the Act by the operations of Schedule 1 and to a lesser extent Schedule 2. However the presumption is that all other data or information can be given out, subject to evidence establishing matters relied upon from the Table to section 14. There is no requirement that the exercise of public functions by an individual provides a precondition to the release (or in the absence - a withholding) of personal information. Such a matter would constitute weight in favour of disclosure, but it is not a requirement for allowing disclosure, or preventing disclosure.
The information is not of itself deemed to be confidential (by the evidence before the Tribunal). What is sought to contain and maintain confidentiality is the content of the contracts and commercial sponsorship arrangements, not the names of various individuals involved in those arrangements. Therefore in my view the information for which there is sole reliance on the provisions of Clause 3 (a) of the Table to section 14 of the GIPA Act, should be released in so far is it relates to the names of individuals. Signatures and phone numbers and other data should be withheld. I find that this ground is therefore not fully made out.

Section 14 table 1 Clause 4 (b) - reveal commercial in confidence provisions of a government contract.

The respondent submits that release of this information could reasonably be expected to create this result.
Having examined the material in confidential session, it is clear that for similar grounds to the clause 1 (f) and 1 (g) considerations, this ground relied upon by the respondent must succeed. In my view all of the preconditions (such as the relevant definitions) are met. This matter goes to the heart of why the respondent resists the release of the information, and it would appear that those matters are understood by the parties. It is this issue which the applicant seeks to shine a light on, and as the Tribunal understands it, use to supplement his ongoing research.
In my view the ground is clearly made out on the evidence contained within the confidential data and material, sufficient to override the presumption in favour of disclosure and I so find.

Section 14 table 1 Clause 4 (d) - prejudice legitimate business, commercial, professional or financial interests .

The respondent submits that release of this information could reasonably be expected to create this result.
As a result the respondent must establish that the information concerns business, commercial and financial interests. It is clear from both the data, and the matters observed during open evidence, open submissions and confidential session that the provisions of this clause are the matrix within which the respondent's arm of the proceedings operates.
It is also clear for similar reasons expressed in relation to clause 4 (b) (and noting the earlier clause 1 grounds) that release of the data would prejudice these interests, and that as a result of the context in which these arrangements are occurring, (Faculty, students, education, sponsorship etc.) significant weight should attach to this consideration so as to override the general presumption in favour of disclosure. In my view the respondents ground is made out and I so find.

Observations

It is relevant to observe the different position of the parties. Much of the argument has centred around what the respondent sees as it's lawful and wholly legitimate right to enter into these sponsorship arrangements (in terms set out at the end of paragraph 99 (above), contrasted with the applicant's view that the release of such information would constitute one or two of the grounds referred to in the Note to section 12 (2) of the GIPA Act. Note 2 (a) and (e) of the GIPA Act provide as examples of public interest considerations in favour of disclosure: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. ….. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
As I observe the matter, the applicant holds strong views and opinions about the harmful impact of processed pet food, and as a result is attempting to ventilate the matters referred to at (a) and (e) in the paragraph above. Unfortunately whilst the applicant has asserted that his views are scientifically based, and he has produced some self-referring as well as independent evidence to that effect, those matters remain a matter of opinion of the applicant and his supporters. The respondent equally (but without providing any scientific evidence) maintains that these matters are not accepted and that the matters are merely the applicant's opinions.
Whilst these matters may ultimately resolve one way or the other in the scientific community, such an assessment cannot occur in a review of an administrative decision under the GIPA Act. I make this observation noting the best of intentions of the applicant in the giving his evidence in chief, and evidence tendered in respect of his professional practice. However I dismiss the discursive aspects of some of the applicant's submissions (both orally and in writing) during the course of the proceedings.
Finally whilst I note the applicant's reference (and production) of similar FOI type requests concerning other institutions in related jurisdictions, those matters involve different legislative regimes, and no evidence was provided as to what (if any) material considerations and evidence was considered in reaching the position those matters.

Conclusion

Having examined all of both the open and confidential material filed with the Tribunal by the respondent, and having noted all of the evidence and submissions in the proceedings (both written and oral proceedings), in my view the correct and preferable decision is to uphold the decision of the respondent, except in respect of the names of persons for which reliance was placed on clause 3 (a) of the Table to section 14 of the GIPA Act.

Orders 1. The decision of the respondent to refuse access to information subject of the application (except in respect of information withheld under Clause 3 (a) of the Table to section 14) is affirmed. 2. The decision of the respondent to refuse access to information being names of persons for which the respondent relied upon Clause 3 (a) of the Table to section 14) is set aside. 3. In substitution of that decision, the respondent is to release the names of the persons referred to in folios 4,6,8,10,12,13,22 and 23 of Exhibit RC 3 to the applicant. 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 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: 10 August 2016

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)

Cited By (2)