McGuirk v University of New South Wales [2007] NSWADT 204 | Case summary

REASONS FOR DECISION 1 Mr McGuirk has applied to the University of New South Wales for access to certain documents under the Freedom of Information Act 1989 ("the FOI Act"). The document that is the subject of this application is a report of the St James Ethics Centre dated December 2004 ("the Report"). The later version of the Report has been published to some degree on the University's website. Some parts of that document have been masked. Mr McGuirk has brought this application following two deemed refusals to provide him with the Report. Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the University. Mr McGuirk contends that the university has failed to discharge that burden. 2 This matter was subject of a determination on the preliminary issue regarding whether the University was entitled to make the request for an advanced deposit and whether it was entitled to refused to continue dealing with McGuirk's application when payment of the deposit was not made. The decision on that point is recorded at McGuirk v University of New South Wales [2005] NSWADT 255 and the subsequent appeal at University of New South Wales v McGuirk (No 3) (GD) [2005] NSWADTAP 67. 3 The principal matter ultimately came before me for hearing in May 2006 and was subsequently relisted for further directions on a number of occasions. The University relies on the statement of Ms Deborah Gibson dated 29 March 2006 and a second statement of 4 May 2006. The University has provided a copy of the Report to the Tribunal and each of the parties made open submissions on the issue of whether the Report should be released. The University has also made confidential submissions in support of its argument that the Report relates to a protected disclosure and is therefore exempt from release under Clause 20(d) of Schedule 1 to the FOI Act. It provided a schedule of page references to the various reports indicating the evidence that it says s relevant to the present exercise. 4 The disclosure to which the Report is said to relate and which is said to be a 'protected disclosure' was subject of separate proceedings is recorded at McGuirk v University of New South Wales [2005] NSWADT 113 which was the subject of appeals. The decisions on those appeals are recorded at University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65 and University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362. The University relies on the documents that were the subject of those matters. 5 The University has also asserted that the Report is exempt pursuant to clause 9 of Schedule 1 to the FOI Act - the internal working documents exemption. I understand that in light of the Court of Appeal decision in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 the University no longer relies on this exemption. Protected disclosures 6 Under Clause 20(d) of Schedule 1 to the FOI Act a document is an exempt document if it contains matter the disclosure of which would disclose matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994. 7 A disclosure must meet certain requirements if it is to be regarded as a 'protected disclosure' under the Protected Disclosures Act 1994. Firstly, under section 8, the disclosure "must be made by a public official" as defined in the Protected Disclosures Act 1994. Under section 4 a public official includes "a person employed under the Public Sector Management Act 1988." 8 Further, the disclosure must be made to an investigating authority; the principal officer of a public authority or investigating authority or officer who constitutes a public authority; another officer of the public authority or investigating authority to which the public official belongs; or an officer of the public authority or investigating authority to which the disclosure relates. Under section 9 a disclosure must be made voluntarily. 9 The Protected Disclosures Act 1994 intends that the identity of individuals who make protected disclosures should remain confidential. Further, any information that could lead a person to ascertain the identity of the complainant should not be disclosed. 10 It is common ground that the Report arose as a consequence of certain allegations made by a number of individuals in regard to the actions of Professor Bruce Hall ("the Bruce Hall matter"). In order to determine whether or not the Report contains matter relating to a protected disclosure it is first necessary that I determine whether or not any or all of the complaints constitute a protected disclosure. 11 Mr McGuirk does not concede that those allegations, or any of them, constitute a protected disclosure. However, he submits that even if any of the allegations did constitute a protected disclosure, the exemption does not apply. Further, even if the Tribunal were to find that the exemption does apply, there is a compelling reason for exercising the override discretion. The University's case 12 Mr Singleton contends that there are two steps to this analysis. The first is to determine whether there was a protected disclosure. If there was a protected disclosure, the second step is to determine whether the Report relates to the protected disclosure. 13 Mr Singleton contends that this is a case where some 78 complaints were made to the University. To prove that at least one of those complaints is a protected disclosure the University has to satisfy the four elements in the Protected Disclosures Act 1994. Mr Singleton contends that the various reports establish that certain persons, or at least one of them, made protected disclosures. Ms Gibson's second statement gives evidence on that point. She provided evidence as to each of the elements that have to be established to show that there was a protected disclosure. 14 Ms Gibson gave evidence that those making the complaints were public officials within the meaning of the Protected Disclosures Act 1994. Their various employments qualify them as public officials and so the second element is satisfied. 15 The Protected Disclosures Act 1994 protects disclosures made directly to the chief executive officer. The Vice-Chancellor is the University's principal executive officer. Mr Singleton says that one of the complaints went directly to the Vice-Chancellor in a document that expressly says it is a protected disclosure under the Protected Disclosures Act 1994. He submits that there is no reason to believe that that document was not authentic. Ms Gibson gave evidence that to the best of her knowledge all the documents are authentic. He contends that it is only necessary that one of the communications went directly to the Vice-Chancellor. Mr Singleton also submits that the disclosures that went to either the Disclosures Coordinator or the head of the Faculty of Medicine were in accordance with the University's Protected Disclosures Policy and therefore qualify to satisfy this element. 16 The fourth element is the nature of the complaint. The Protected Disclosures Act 1994 provides for the subject matter of a disclosure that is necessary to constitute a protected disclosure. Ms Gibson has indicated the subject matter and Mr Singleton submits that they accord with the definition of what has to be the subject matter of the complaints to qualify them as protected disclosures. 17 Ms Gibson also deposes to the fact that she does not have any basis to believe that the complaints were not voluntary and that there was no legal compulsion on any of the complainants. 18 Mr Singleton submits that each of the four elements is satisfied on the evidence of Ms Gibson. Accordingly, the Tribunal should be persuaded that the complaints, or at least one of them, qualify as protected disclosures. 19 Mr Singleton submits that the clause 20(d) exemption goes wider than simply material that discloses the identity of an informer or a complainant. He contends that the policy extends to protecting the way the University handled a complaint. He further contends that the nature of a protected disclosure is analogous to the common law category of police or other informer. The common law recognises that the balance of public interest is that such people are not to be exposed or disclosed unless it's necessary or appropriate to do so to help secure the acquittal of a person charged with a criminal offence. He argues that once the Tribunal is satisfied that the Report relates to a protected disclosure it is exempt, there is no public interest component. 20 Mr Singleton submits that it is not necessary that the Report have 'close proximity' to a protected disclosure. The Report has to have 'a connection' to the disclosure. He submits that the term "related to" is in much the same category as "in respect of" or "regarding". He argues that it is apparent from various authorities that have considered these phrases that they are of the widest possible import in terms of the connection, but there still has to be a connection. He concedes that if the Report is found to be just about the University, and has nothing to do with the complaints, then the Tribunal should find that it is not related to a protected disclosure. However, if it is directly and specifically about the University's behaviour in responding to the complaints, then it does relate to a protected disclosure. 21 He further contends that Parliament could have limited the exemption to the extent that a document identifies a complainant, but it has gone much wider than that. It has protected not only the complainant but also the handling of the complaint by the University. The wording of clause 20(1)(d) is wide enough to cover the University's handling of the complaints. So, if the Report primarily focuses on the handling of any one of the complaints, it is caught by the exemption. If the Report were just about the handling of complaints under the Protected Disclosures Act 1994 generally it would not be protected because it would not relate to a particular complaint or complaints. He concedes that if it were a report generally about protected disclosures handling and it used these disclosures as an example, it would be partially exempt. To the extent that it would be about handling generally, it could be released. However, he says that if the Report is about the handling of these complaints, but it goes on to make some broad observations about handling generally, the whole document would be exempt. 22 In this case, the handling of the complaint included the commissioning of the Report. He says that the Report was the last of a long series of reports and its primary focus was to review how the University dealt with the matter. It is in the public interest to have some protection of such a document because of the sensitivity associated with it. 23 He says that it is not a matter for the Tribunal to review whether the University had reasons for not exercising its discretion to release the Report, but the Tribunal is to determine whether the material before it is adequate. Mr McGuirk's case 24 Mr McGuirk contends that the St James Ethics Centre document that is published on the University's website is not the version of the Report that he is seeking. He also says that sections of that document were published in The Australian newspaper's Higher Education supplement on 27 April 2005. He asserts that the Report was not acceptable to the University's executive and consequently was amended by the St James Ethics Centre. Mr McGuirk is seeking to discover whether the Report was a draft document or whether it was a document that was intended to be final. He says that he has also sought a copy of the covering letter from the St James Ethics Centre advising that it is a draft document but that the university has not produced it. He says that the University advised him that the covering letter either doesn't exist or it can't be located. 25 Mr McGuirk submits that the terms of reference of the St James Ethics Centre were not to investigate the Bruce Hall matter. It was commissioned to look at the University's handling of complaints generally. It was specifically precluded from looking at the Bruce Hall matter documents. It took it upon itself to address matters that were not within the terms of reference. 26 Mr McGuirk also contends that the University is acting hypocritically in that it has argued that it is required to comply with the Protected Disclosures Act 1994 to protect the confidentiality of the complainants, and yet it published the names of three complainants on its website. 27 Mr McGuirk submits that clause 20(1)(d) was introduced into the FOI Act by the Protected Disclosures Act 1994 to give effect to the objects of that Act. It is therefore necessary to interpret clause 20(1)(d) by reference to the objects of the Protected Disclosures Act 1994. The objects of that Act are, firstly, to protect the identities of the complainants, and secondly, to make sure that the complaints are investigated and dealt with properly. 28 Mr McGuirk refers to section 25(1)(a) of the FOI Act, which provides that an agency may refuse access to a document if it is an exempt document. He says that the critical word there is "may" and this gives the agency discretion. It has discretion whether to release it or not and that discretion must be exercised in accordance with the objects of the FOI Act. Section 5(3)(b) of the FOI Act provides that the discretions conferred by the FOI Act shall be exercised so as to facilitate and encourage promptly and at the lowest reasonable cost the disclosure of information. 29 Mr McGuirk further submits that even if the Report is exempt, there is an obligation on the University to give reasons why it is not releasing it despite the fact that it is exempt. He says that saying a document is exempt is a finding of fact. It is not a reason for not releasing the document. He says that it is largely irrelevant whether there are protected disclosures. He points to section 61 of the FOI Act, which places the onus of proof on the University to show that the discretion has been exercised to further the objects of the FOI Act. He says that the University has not put forward any evidence that its determination is justified or that it exercised its discretion properly under the FOI Act. The obligation of this Tribunal is therefore to find that the University has failed to discharge its onus of proof that its determination is justified. 30 Mr McGuirk also sought a finding that the University has failed to exercise its discretion in good faith and requested that a report be made to the Minister in regard to this matter pursuant to section 58 of the FOI Act. He referred to the High Court case of Cannane v J Cannane Pty Ltd (In Liquidation) [1998] HCA 26 for discussion of the applicable principles of acting in good faith are canvassed at some length by Kirby J from paragraph [101]. 31 Mr McGuirk argued that in the circumstances where there is a double deemed refusal, this Tribunal should simply order the release of the documents. If an agency does not provide reasons for not releasing the documents, then the presumption is in favour of release. It is not up to this Tribunal to do the work of the agency. Finding: 32 The purpose of the Clause 20(d) exemption is to ensure that the FOI Act is not used to discover or disclose information identifying a person who has made a disclosure under the Protected Disclosures Act 1994. This Tribunal has adopted a broad interpretation of this exemption: see Pettit v Department of Education and Training [2004] NSWADT 86 and Robinson v Director-General, Department of Health [2002] NSWADT 222. The exemption has been found to extend to any document that, either directly or indirectly, identifies the subject matter of the disclosure. 33 I agree with Mr Singleton's submission that this matter involves a two-stage approach. On the evidence before me I am satisfied that at least one of the complaints to which the University has referred is a protected disclosure for the purposes of the Protected Disclosures Act 1994. 34 I also accept the University's argument with respect to the necessary degree of proximity in order to establish a protected disclosure. I agree that the expression "matter relating to a protected disclosure" is intended to be given a wide interpretation. 35 I have read the Report and I am in no doubt that it relates to a protected disclosure. That being the case I am satisfied that it is therefore exempt from release under Clause 20(d) of Schedule 1 to the FOI Act. Whether or not the St James Ethics Centre complied with its terms of reference is not relevant to the consideration of whether the Report relates to a protected disclosure. 36 I do not agree with the University's argument that once a document is found to be exempt under clause 20(1)(d) there is no other basis on which it can be released. I note that this matter was argued before the Supreme Court decision in the matter of University of New South Wales v Gerard Michael McGuirk. That decision confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. Accordingly, Mr Singleton's submission to the contrary must fail. 37 I discussed various authorities relating to the approach to be taken in exercising the overriding discretion to release documents that are otherwise 'exempt' under Schedule 1 in Watt v Forests NSW [2007] NSWADT 197. It serves no purpose to restate them here. It is necessary to balance the factors supporting the exemption against any public interest or other considerations justifying exercise of the residual discretion to override the exemption in order to determine whether or not the correct and preferable decision is to order access to be given to an exempt document. The residual discretion should only be exercised where there are strong grounds justifying the overriding of an exemption. 38 Mr Singleton submitted that the primary focus of the Report was a review of how the University dealt with the Bruce Hall matter and that it is in the public interest to have some protection of such a document because of the sensitivity associated with it and to allow the University the opportunity to be introspective. Further, there is public interest in ensuring that complainants making protected disclosures are not exposed. Given the fact that much of the later version of the document is already in the public domain I do not agree with that argument. I note that this material was released after Mr McGuirk's original request. I also note that a significant period of time has passed since the Report was produced and the University has had ample opportunity to be introspective. 39 While I disagree with Mr McGuirk's submission with respect to the application of section 61 of the FOI Act, I agree that the public interest favours the release of the Report. In my view, the factors favouring disclosure in this matter are sufficiently strong to justify disclosure. In my view the correct and preferable decision with regard to the material before me is that the Report should be released so that a comparison can be made between the two versions. However, it is my view that it is appropriate that all references within the Report that would identify the complainants or their complaints should be removed before it is released. 40 For completeness, I note that I do not consider that the evidence supports any assertion that the Report is exempt pursuant to clause 9 of Schedule 1 to the FOI Act. 41 In the circumstances the appropriate order is that the decision be set aside and that the matter be remitted to the University for reconsideration with the recommendation that the report be released once those deletions have been made. 42 I do not propose to make any report to the Minister pursuant to section 58 of the FOI Act in regard to this matter. Order 1. The decision under review is set aside. 2. Pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the matter is remitted to the University for reconsideration with the recommendation that the Report is to be released to Mr McGuirk. With the exception of those parts of the Report which identifies either the complainants or the complaints made by the complainants in regard to the actions of Professor Bruce Hall, the Report is to be released in full.

McGuirk v University of New South Wales

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