Macquarie University v Howell [2001] VCAT 2020 | Case summary

REASONS FOR DECISION 1 This decision is supplementary to our decision of 25 July 2008, i.e. Macquarie University v Howell [2008] NSWADTAP 46. On that occasion we set aside that part of the Tribunal's decision which reversed the University's claim that certain documents were exempt within the meaning of cl 13(b) of Schedule 1 to the Freedom of Information Act 1989 (FOI Act). We granted the University's application for the appeal to be extended to the merits. 2 This is the decision on the merits. 3 There are 28 affected documents numbered 5-8, 10, 16-20, 23, 26-28, 32, 35, 37, 38, 44, 48-50, 55, 57, 58, 60, 70 and 80. The public descriptions of these documents as provided by the University in its amended schedule of documents are set out in the Appendix to our earlier decision at (B). 4 Clause 13(b) provides: ' 13 Documents containing confidential material A document is an exempt document: … (b) if it contains matter the disclosure of which: (i) would otherwise disclose information obtained in confidence, and (ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and (iii) would, on balance, be contrary to the public interest.' 5 The Tribunal held that 15 of the documents did not satisfy requirement (i) and, as to the remaining 13, while they satisfied requirement (i) they did not satisfy requirement (ii). Consequently the Tribunal did not need to consider requirement (iii). 6 We held that the Tribunal had been incorrect in the way it had applied requirements (i) and (ii) of cl 13(b), and given those conclusions, should have dealt with requirement (iii) and had not done so. For reasons given in our previous decision, we decided that a finding should be entered in relation to all 28 documents that requirement (b)(i) was satisfied. The question in respect of all the documents therefore becomes whether requirements (ii) and (iii) are satisfied. Evidence and Submissions 7 At our hearing on 1 October 2008, in addition to the material previously filed before the primary Tribunal and in connection with our first hearing, the Appeal Panel received the following submissions and evidence: (i) Affidavit from Mr Phillip Hagan, Deputy Director, Human Resources Office, Macquarie University, sworn 3 September 2008. (ii) Further Affidavit of the Access Applicant, Sally Howell, filed 25 September 2008. (iii) Appellant's Submissions for Rehearing relating to cl 13(b)(iii). (iv) Respondent's Submission on Review on the Merits. 8 In addition, the parties drew specific attention to the following material filed in the proceedings before the Tribunal below: (v) Appellant's Submissions filed 12 December 2007 as they related to the application of cl 13(b). (vi) Two sets of Submissions of the Appellant (then Respondent) filed before Primary Tribunal, 28 April 2006 and 20 July 2006. (vii) The Macquarie University Enterprise Agreement 2003-2006. (viii) Affidavit of James Austin Piper, Deputy Vice-Chancellor (Research), sworn 21 April 2006. (Professor Piper made the internal review decision.) (ix) Affidavit of Sally Howell sworn 15 June 2006. Requirement (ii) of cl 13(b) (prejudice to future supply) 9 In our previous decision at paras [91] and following we referred to what we regard as the correct approach to the consideration of requirement (ii). 10 In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information. 11 In her submissions filed 25 September 2008, Ms Howell accepted the Tribunal's view as to the appropriateness of adopting a relatively abstract approach. Requirement (iii) of cl 13(b) (disclosure contrary to public interest) 12 Often there is a close relationship between the case put by an agency in support of the applicability of requirement (ii) and the case put in connection with requirement (iii). Often the prejudice that is said to justify the applicability of requirement (ii) is also said to be a key consideration as to why it would be contrary to the public interest to release the document. In a sense it is a question of the degree of the prejudice. This is a case largely of that kind. Evidence and Submissions 13 'In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister': FOI Act, s 61. The University relied on the evidence of Professor Piper and Mr Hagan, and a scrutiny of the documents themselves. The key elements of Professor Piper's evidence are found at paras 63 and following of his affidavit. 14 In para 63 he refers to the Ombudsman's guidelines in relation to the conduct of child protection investigations. He asserts that, in his opinion, release of exchanges between Mr Kelly and witnesses could reasonably be expected to prejudice similar investigations in future. He states: '[A] witness may be reluctant or deterred from participating in an interview with an investigator if he or she fears that the evidence given will be disclosed to other witnesses or persons, thereby potentially damaging friendships, security in employment, creating some form of liability, or even victimisation of some kind.' 15 He said that in considering his decision on internal review: 'I accepted that in the context of this University witnesses may entertain these concerns and that if the expectations of witnesses in the present investigation by Mr Kelly into the allegation concerning MUSEC [i.e. Macquarie University Special Education Centre] were not honoured, members of the staff or the University may decline to cooperate in future investigations, whether under Part 3A of the Ombudsman Act or an investigation or inquiry of some other kind.' 16 He continued at para 64: 'I considered whether there was a public interest in the accountability and openness of the administration of the University which would be served by the release of the information in the documents and what public interest was served by the release of the information in the documents and what public interest was served by keeping them confidential. I considered that while there is a very general public interest in openness of agencies, there was a public interest in not releasing the confidential information which had come into existence for the purposes of the investigation of a sensitive child protection matter since release would seriously impair the integrity and viability of the University's decision-making processes in relation to these sensitive matters. I formed the view that on balance, the public interest in preserving the confidentiality of the information in the documents outweighed the public interest in the release of confidential information. I remain of that view, and I believe it is a view reflected in the Ombudsman's Guidelines .' 17 In support of her case, Ms Howell has pressed the view that there is no prejudice to the University or agencies generally in circumstances where employees are bound as a duty of their employment to answer questions put to them by an internal investigator engaged by their employer. 18 The affidavit of Mr Hagan goes to this matter. Mr Hagan is a senior officer of the University experienced in personnel administration, in the conduct of internal investigations and the commissioning of external investigations. 19 He said that while the University has the power to direct staff to answer questions relevant to their employment and in connection with such matters as the investigation of staff grievances, allegations of staff misconduct and workers compensation claims, it prefers not to proceed in that way. He said that the University will generally seek to obtain voluntary co-operation. He said that staff and students sometimes seek and are often provided with assurances by the University that in cases where they provide sensitive information to investigators that such information will be kept confidential. He also referred in this context to the enquiries that occur in connection with regular staff performance reviews. 20 He stated that in his experience staff who provide information to investigators or reviewers voluntarily on the basis that it will be kept confidential are more likely to be co-operative and to engage fully with the investigators and the reviewers than staff members who are directed by the University to participate in investigations and reviews. 21 He then turned to the particular subject of investigations relating to the conduct of a staff member in relation to a child in his or her care. He referred to the sensitivity of these investigations, and their potential consequences. He concluded: 'Unless they [staff] have assurances that the procedure is confidential, members of staff may be defensive or conceal information, and the investigations will be undermined.' 22 He referred to the danger the formal giving of a direction carried in undermining harmonious relationships between staff members. 23 Ms Howell's submissions noted that the documents that remain in dispute could be divided into several categories. She divided the documents, having regard to the public descriptions given in the amended schedule of documents, into (i) witness statements: Documents 27 & 48 (parent statements), document 50, document 55, document 57, document 70, document 80 (all statements of various staff members); (ii) investigator's internal working documents, i.e. documents 5 & 6, 7 & 8, 10 and 58; (iii) communications between the investigator and the agency during the course of the investigation, i.e. documents 16 & 17, 18, 19 & 20, 26, 35 and 37; (iv) agency's internal notes during the investigation, i.e. document 23; (v) agency's communication with witnesses, i.e. document 28; (vi) investigator's invoices, i.e. documents 32 and 38; (vii) investigation reports, i.e. document 44. In our view, this is a reasonably accurate way of dividing the documents, based on their public descriptions. 24 Her submissions mainly concentrated on the question of the public interest balance to be struck. She referred in that connection to broad public interest considerations and to matters more personal to her situation. 25 As to the matters personal to her case, she referred to the damage to her reputation that had been occasioned by the fact of the investigation and the way it had been conducted. She said that she had been led to giving up her job. She referred to the loss to the community that results from having experienced and highly qualified teachers such as her forced out of their jobs as a result of investigations of this kind. She criticised the way this investigation was conducted. She referred to the unavailability to her of forms of redress other than that provided by FOI. 26 She submitted that the passage of time was relevant to the question of disclosure. The public interest in withholding the information reduced as time passed. 27 Ms Howell noted that three staff members - whose answers are recorded in documents 57, 70 and 80 respectively - had consented to the disclosure of their evidence to Ms Howell. (This, perhaps, overstates their level of agreement. In one instance (the staff member affected by document 80) there is an express consent (see Ex H2 before the primary Tribunal), while each of the other two persons state that she does not object to disclosure. One of those two asks that any disclosure not be done in a way that reveals statements referring to third parties. (See A174 and A175 of the applicant's additional documents before the primary Tribunal.)) 28 Ms Howell expressed concern over the view expressed in our earlier decision as to a factor said to militate against disclosure: '111 In any case the limited cross-disclosure that may be appropriate in the course of investigation has, we think, no bearing on the calculus to be made under Freedom of Information laws where disclosure is unconditional.' She noted recent Victorian case law noting that it was not correct to regard disclosure as disclosure to the whole world, and that the extent of disclosure is a matter for evidence, referring to Marke v Victoria Police [2007] VSC 522 at [46]-[47]. See now also, Victoria Police v Marke [2008] VSCA 218 (5 November 2008) (Marke's case). 29 The submission rejected Mr Hagan's evidence as to the degree of future impact of release of documents of the kind sought. Ms Howell reiterated submissions that the persons interviewed could not reasonably have expected absolute confidentiality given the superintending role of the Ombudsman, and given the availability of those statements to the Ombudsman whatever was said to the witnesses. She notes that the investigation reports were prepared in compliance with statutory requirements, so there could be no significant prejudice to the making of such reports on future occasions. Organisations were, on this submission, compelled by law to obtain the report, and those affected, at least where they were employees, were likely to be obliged to submit to the process. 30 As to the public interest balance, she noted that there is a public interest in dealing fairly with those that give care to children, otherwise participation in that type of work will be deterred. There is also a wider public interest in according fairness to employees and students. Finally there is a public interest in investigators and agencies being kept accountable. 31 Ms Howell, in reply to the submissions of the University, disputed that there is any useful analogy to be drawn between the situation of these persons and the principles which have accorded public interest immunity to statements made in connection with child protection (referring to D v National Security for the Prevention of Cruelty to Children [1978] AC 171). 32 Her submissions also emphasised the value of transparency in investigations of this kind. It was submitted that absence of transparency may limit the ability of oversight bodies such as the Ombudsman to monitor adequately the process, and contribute to bad practice occurring in the conduct of investigations. The submissions conclude 'the best way to avoid reports being sanitised is to have them open to staff and parents who are best placed to challenge any errors'. Assessment 33 We have reviewed all the disputed documents. We are necessarily limited in what we can record in our public reasons. Section 55(a) of the FOI Act provides that in determining a review application, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter. 34 Here, an agency commissioned an investigation to enable it to determine what action, if any, ought to be taken in response to a parent's complaint relating to the way in which its staff had dealt with a child in the care of the agency. The agency contracted an external investigator. Because of the nature of the allegation, it was bound to observe external legal requirements and adhere to protocols issued by an external agency, i.e. the Ombudsman. 35 In our view, it is usual for external investigators to be engaged on a confidential basis. In our view, it is also usual for the investigator to be left free to give guarantees of confidentiality to the extent the law allows to those who have information of assistance to the investigation. In our view, many people are more likely to co-operate with investigations and be more candid in their communications if they are given guarantees of confidentiality. We accept the evidence of Mr Hagan, and agree with his views. As we did in our previous decision, we accept that sometimes guarantees of confidentiality may prove not to be ironclad. It may transpire that information provided in confidence may be used as the basis for preferment of charges against a person, and it will become necessary to make that information known to the person charged. 36 In our view the Ombudsman's Guidelines, as was stated by Professor Piper, proceed on the basis that ordinarily the kind of child protection investigation that is under notice in this case would be surrounded by confidentiality in the ways we have described. 37 Three persons, as previously noted, have not objected outright to their statements being released. In our view this is not a significant consideration so far as requirement (ii) is concerned. The question being examined at this point, as we see it, is whether it could reasonably be expected that the agency would, if it released statements made to the investigator by persons with knowledge of the circumstances out of which a serious complaint arose, be prejudiced in the future supply of information of that kind. 38 In our view, persons with relevant information would often be reluctant to speak to an investigator if there was a significant possibility that the interview notes or record might be released under FOI especially to a person of interest. There are a number of decisions in the Tribunal to similar effect in the context of workplace investigations. See for example, Chief Executive Officer, State Rail Authority v Woods (No. 2) (GD) [2003] NSWADTAP 39; McGuinness v Bathurst Regional Council [2005] NSWADT 152; Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277; Keriakes v State Rail Authority of NSW [2003] NSWADT 191. 39 Nor do we regard the consents (or non-objections) given by the three persons as significant to the assessment of requirement (iii). Here the question is, again as we see it, one to be approached in a relatively abstract way, i.e. would disclosure, on balance, be contrary to the public interest. 40 The public interest considerations to which Ms Howell points in favour of disclosure are, we accept, important ones. The FOI Act is legislation designed to promote transparency in relation to the processes of the public agencies to which it applies. But equally the FOI Act acknowledges (see objects clause, s 5) that some documents may not be able to be made available in line with those 'restrictions as are reasonably necessary for the proper administration of the Government'. (In this instance the word 'University' should be substituted for 'Government'.) See further WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 at [151]. 41 The exempt document categories found in Schedule 1 present a guide to the restrictions that the Parliament of the day saw, and continues to see, as relevant to the administration of the Government, and, by extension, other important public agencies subject to the FOI Act such as Universities. While they have not been relied upon in this case, several of the sub-categories of cl 4 (documents affecting law enforcement and public safety) have as their object securing the confidentiality of investigations (for example (a), (b) and (e)). There is, as we see it, reflected in the structure of the FOI Act a special concern with ensuring that the community's interest in effective investigations of allegations of serious misconduct (or of events where serious misconduct is a tenable possibility (as in suspicious deaths)) is not put at risk by having documents generated by that process finding their way, in an uncontrolled way, into the public domain. 42 In our view, it would be quite exceptional for the Tribunal to grant access to material obtained in confidence in connection with a child protection investigation. We note that a similar approach has been adopted in Victoria. See AB v Dept Human Services [2001] VCAT 2020 at [33]. 43 The public interest in the protection of children and the public interest in ensuring that investigations relating to alleged child mistreatment is as thorough as can be achieved clearly favours non-disclosure of documents obtained in confidence in the course of such an investigation. 44 Another factor favouring non-disclosure is the availability of other mechanisms which provide oversight to the child protection investigation process. As noted in the earlier decision, allegations of child mistreatment must be notified to an external authority (the Ombudsman), and the external authority must be satisfied as to the adequacy of the investigation and as to the conclusions reached by the investigation. This does not, in our view, mean, as has been submitted on behalf of Ms Howell, that complete transparency of these processes is to be permitted. 45 In our view, the case for non-disclosure is clear-cut in relation to most of the disputed documents. 46 The witness statements divide basically into two groups: statements made by the parents of the child; and statements made by staff at MUSEC. The two reports that make up document 44 refer to these statements and other material in a way that does not make it practical, in our view, to seek to edit it so as to divide 'exempt' material from arguably 'non-exempt' material. 47 Separate from documents of the above type are the communications that passed between the investigator and the University's solicitors, and sometimes between the investigator and other functionaries of the University. In our view, the release of communications of this kind might reasonably prejudice the ability of public agencies to engage specialist external investigators in future to undertake investigations. In our view, there is, often, a valuable public interest served by having an organisation engage an external investigator. 48 Complainants and other persons with relevant information will, we think, as the University asserted, often have greater confidence in an investigator who is not a day-to-day employee of the organisation against whom, in effect, the complaint is made. It may well be, also, that the complaint belongs to a class of complaint with which the organisation has little experience, and it sees itself as benefited in that way by going to an external person with expertise. In our view, the notes that pass between the investigator and the organisation's instructing hierarchy (such as solicitors or key senior office-holders) should, ordinarily, be protected. 49 The next set of documents, as we see it, are the worksheets for which protection is sought. The worksheets were created by the investigator and set out, for example, lines of inquiry and persons who may have relevant information. They were supplied by him to functionaries such as the University solicitor. We have reviewed these, and with one exception, consider that they should not be released. In our view there would be prejudice to the ability of a public agency to engage external investigators in future if their strategic plans given confidentially were later to be disclosed under the FOI Act. We think the public interest in agencies being able to engage the services of competent external investigators would be compromised to a degree that means that it would be contrary to the public interest for confidential material of this kind to be revealed. 50 The one exception, in our view, is document 49 (document 55E in the original numbering system). This document is, in essence, an early note (12 December 2004) profiling the situation on 2 November 2004, as gleaned by the investigator from the information available to him at that stage. 51 In our view, there are only two other documents where the case for non-disclosure is debateable. These are documents 32 and 38. Document 32 is the investigator's progress payment invoice for services to 15 February 2005 and document 38 is the further invoice for work to 7 April 2005. In our view the first two pages of these documents should be released. We are not satisfied that requirement (ii) is made out. We accept that the payment invoices were rendered within the confines of a confidential relationship with a client. However, we do not think that revelation of the invoice, and necessarily the amount of the fees, could reasonably be expected to prejudice the future supply of such information to an agency. 52 We draw a line between the principal documents (the covering letter and the attached tax invoice), and the more detailed document which, in each case, follows. The more detailed document is an itemised account of each work day, and the nature of the work undertaken on that day. In our view, this document gives a map of the investigation and the approach followed. It reveals the investigator's methodology. As we have seen the worksheets as warranting protection, in our view the same logic extends to the attachment to the fee invoice. 53 Finally, the Tribunal has a residual discretion equivalent to that possessed by the agency to release matter that is exempt (see s 25(1)(a)): see University of New South Wales v McGuirk [2006] NSWSC 1362 (Nicholas J). 54 In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216, the President sitting at first instance noted that there should be strong grounds justifying the exercise of this residual discretion to grant access to a document that is found to be exempt. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion: '27 Practical circumstances that might influence the Tribunal to exercise the discretion include: - whether the exempt matter was, by other means, in the public domain - whether the circumstances that had made the exempt matter sensitive at the time it was refused remain current or significant - the nature of the government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity - the public interest in an informed debate on issues of significance to the community - whether there were adverse consequences for the proper administration of government, and their extent - whether any adverse consequence is remote or innocuous.' 55 In our view, the matters already canvassed in these reasons in connection with the public interest assessment we have made in connection with requirement (iii) of cl 13(b) are conclusive. This is not a case where additional considerations can be identified sufficient to disturb the finding made in relation to requirement (iii). For a case where release of an exempt document was considered not to have any adverse consequences for government, and the residual discretion was exercised, see Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 at [56]; note also, JY v Commissioner of Police, NSW Police [2008] NSWADT 306 at [79]. 56 We have not found it necessary in reaching these conclusions to examine the difference between views expressed in this Tribunal (see for example, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 at [58]-[60]); upheld on appeal, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30; and Cheney v Sydney West Area Health Service [2008] NSWADTAP 29) and the Victorian Court of Appeal in Marke's case, esp at [104] ff per Pagone AJA. The debate relates to whether the unconditional nature of release under the FOI Act (i.e. disclosure 'to the world') operates to exclude absolutely consideration of the claims personal to an individual applicant for release of the requested documents. We acknowledge the force of the concerns that Ms Howell has raised as to the benefits that she would receive from having these documents released. However, in our view as explained, the public interest factors to which we have referred clearly outweigh the gains that she might obtain from release of the documents we consider to be exempt. Orders

Appeal allowed as follows.
Decision of University in respect of those documents for which a claim to exemption was made under clause 13 affirmed, except for first two pages of documents 32 and 38, and the whole of document 49.

Macquarie University v Howell

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