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[2014] NSWCATAD 76
NCAT Administrative and Equal Opportunity
2014-06-07
Original judgment source is linked above.
BACKGROUND 1Gregory Pemberton, the Applicant, requested the Respondent, Macquarie University ('the university') to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'). His request related to: (1)Records of the university prior to 2005 cantoning tie formal approval of a Middle East & North African Centre in the Division of the Humanities and funding policy thereof. (2)Absence on duty records and leave records of Dr Christie Slade and Dr Geoffrey Hawker in 2005. (3)Records relating to Mr Tony Palfreeman's absence on duty In March-May 2005, including his communications on this matter with Dr Geoffrey Hawker, Mr Peter Goodall and Professor Tony Adams including his request for funding from Professor Adams for this absence and Dr Pemberton's electronic communications with Professor Adams on this matter at this time. (4)Records relating to Dr Andrew Mack relating to allegations of excessive alcohol consumption in classes in 2006, particularly the records of Mr Peter McCarthy and Professor John Loxton, and also records relating to complaints made by Drs Belinda Helmke and Sally Tottman against Dr Mack in 2005-06. (5)Correspondence in 2005-06 between Dr Christie Slade and: Dr Geoffrey Hawker; Mr Peter Goodall; Dr Andrew Mack; Mr Tony Palfreeman; Mr Noah Bassil; Professor John Loxton. (6)Records in the period 2007-2008 in Human resources, University Senior Management, the executive of the former Division of SCMP and of Mr Peter Anderson relating to: (i)the dispute over initial appointment levels of academic staff in PICT and its resolution; (ii)the representations made by academic staff at PICT over allocation of office space; (iii)representations by PICT academic staff over the development of a workload model; (iv)(concerning the allocation of research funding to PICT HDR students; (v)concerning the establishment of an informal HDR Review Committee comprising of professors Mitchell, Spongberg and Anderson; (vi)representations made to Vice-Chancellor Sachs over excessive HDR supervisions by Dr Pemberton due to PICTs appointment of non-HDR qualified academic staff; (vii)correspondence in 2008-09 by Dr Hawker, Mr Anderson, Mr Michael Roberts, Mitchell Dean, Dr Spongberg, Mr Crowley (HR) over Dr Pemberton's return from PICT to the Division of the Humanities; (viii)correspondence in the period July 2010 to June 2011 of the Dean of the Faculty of Arts, Mr Simpson, Mr Rafiq Islam. Professor Mary Spongberg, Professor Marea Mitchell and members of University senior management concerning Dr Pemberton enrolment as a Law HDR candidate. (7)Records relating to management instructions to staff handling prior FOI/GIPA requests by Dr Gregory Pemberton in the period 2008-2010. 2A large volume of information was provided to the applicant. In relation to some of the information sought in Items 3 and 4 the Respondent was unable to locate any information and decided, under s.58(1)(b) of the GIPA Act, that it did not hold the information sought. 3Under s.60(1)(a) of the GIPA Act, the Respondent decided to refuse to deal with the access application insofar as it related to correspondence in 2005-6 between Dr Slade and Dr Hawker, Mr Goodall, Dr Mack, Mr Palfreeman, Mr Bassil, and Professor Loxton (Item 5) because the request would lead to an unreasonable and substantial diversion of its resources in attempting to deal with the application. 4The Respondent refused access to the following information: (a)2 documents in relation to absence on duty records and leave records of Dr Slade ('Category 1 documents') (b)10 documents records relating to complaints made by Dr Helmke against Dr Mack in 2005-06 (other than those the subject of a claim for legal professional privilege which the applicant did not press). In 2006, an investigation was conducted into the complaints and the Investigation Report was published in about October 2006. That report, drafts of it, and correspondences in relation to it (including to and from the investigator), comprise the Category 2 documents. (c)2 documents which are a record relating to management instructions to staff handling prior FOl/GlPA requests by Dr Pemberton in the period 2008-2010 ('Category 3 documents'). 5The applicant seeks review of the decision but clarified at the planning meeting that it was only the withheld documents identified above that he presses. 6Subsequently the Respondent located further 55 documents (although one was the subject of a claim for legal professional privilege and I assume, given the applicant's previous concession and in the absence of submissions to the contrary, he does not press access to that document. The Respondent did not categorise the remaining 54 documents but they are mostly Category 2 documents.
Background 7It is useful to set out the relationship between the various people who have been mentioned in the application. The information is mainly taken from the statement of Dr Fraser (see below). Dr Pemberton was employed at the University from about 1992 to August 2010. For the majority of that time he was employed as a senior lecturer in the Department of Politics and International Relations. In early 2005, the University established a Policing, Intelligence and Counter Terrorism ('PICT') unit, which now sits within the University's Arts faculty. Dr Pemberton was seconded to that unit in or around 2006 for some of his teaching load, and remained there until his resignation. 8Ms Helmke was a higher degree research student at the University between 2004 and 2008. Dr Pemberton was her final principal supervisor on her doctoral thesis. Dr Helmke then worked as an employee of the PICT as a Research Assistant and was promoted to the position of Associate Lecturer in PICT until her resignation in 2008. 9Between 2005 and 2007 (which is the date range specified by applicant in the GIPA Application for the leave records of Drs Slade and Hawker) Dr Pemberton and Drs Slade, Hawker, and Mack were colleagues.
Issue before the Tribunal 10Is there an overriding public interest against disclosure of the information sought by the Applicant in terms of s.13 of the GIPA Act?
The object of the GIPA Act 11The object of the GIPA Act is set out in s.3, which provides: 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.
Evidence 12The applicant provided 2 sets of detailed submissions/evidence. The Respondent relied on a statement by Dr Neil Fraser, the Director of Strategy, Planning and Information at the University and also provided detailed submissions. I also had the views of the Office of the Information Commissioner. The parties agreed it was appropriate for the matter to be dealt on the papers. 13The Respondent provided schedules of the withheld documents. I have carefully read the documents in issue, which were provided to the Tribunal on a confidential basis.
CONSIDERATION 14The Category 3 documents identified by the Respondent were :
Tribunal's process in relation to the remainder of the information 16In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s.13 of the GIPA Act requires the Tribunal to undertake the following steps:
Public interest considerations in favour of disclosure 20Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.' 21Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. 22The applicant seeks information about activities within the then School of Humanities (later Faculty of Arts) and Department of Politics (later also 'and International Relations') at the University. The applicant contended that these records will assist the identification of practices which allegedly amount to malpractice, bullying and corruption. 23The applicant referred to an investigation "under the auspices of ICAC and the Ombudsman" about PICT and the failure of the University to respond to the concerns of the applicant and others. It was difficult to see how this was relevant to the applicant's access application and much of the applicant's submissions focussed on this history. The applicant's approach was to criticise the Respondent's failure to release the information sought, although, to be fair, it is the Respondent who bears the onus of establishing that, on balance, the information should not be released. 24The applicant contended that the records sought will confirm why he, a full-time permanent University employee of some fifteen years' standing, had concerns over the professional conduct of an elderly, inexperienced part-time employee of the university. The applicant said that in the course of his supervisory role he became very concerned over matters such as student and staff complaints of harassment; student complaints of heavy drinking and apparent intoxication in classes; absence of teaching staff without approval for long (up to six weeks) in the teaching period with no provision for approved replacement staff; staff obtaining University funds for overseas travel based on false claims of official duties; false signing or alteration of official, signed documents; appointment of unqualified undergraduate students to teach and/or assess staff members' classes; and the failure of management at the department and faculty level especially to act over these matters even when concerns were raised. The applicant contends his expressions of concern over such practices were unwelcome. 25The applicant submitted that the conduct of public officers in their official duties is, by itself, a matter of public interest. His access application was framed, he submitted, not for any personal motive, but to continue his efforts to raise legitimate concerns over such matters. He submitted that the information sought bears directly on matters of great public interest, including:
Public interest considerations against disclosure 30The general public interest considerations against disclosure are limited to those set out in the Table. 31The Respondent submitted that the following public interest considerations against disclosure are relevant:
Balancing the public interest considerations 48The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s.16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s.5 GIPA Act. 49The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70]. 50There is an overriding public interest against disclosure of government information if the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure: GIPA Act, s.13. 51I have accepted that some of the withheld material related to allegations of improper conduct in the workplace which had been the subject of an investigation and that there is a public interest in that information in favour of disclosure. Further, I accept that there is a public interest in favour of disclosure of information which would evidence lack of proper accountability by the University. 52On the other hand, I have found the Category 1 information contains personal information which, it seems to me there is little, if any public interest in the disclosure of those leave records. 53In relation to the Category 2 documents it was not disputed that information was provided to the University on a confidential basis. I have accepted that disclosure of the material would be likely to prejudice the University's ability to conduct future investigations, and that there is a public interest in the Respondent continuing to receive voluntary assistance and information from its employees and others about complaints of misconduct and that disclosing this confidential information could reasonably be expected to prejudice the future supply of such information. 54As discussed above, in my view, a significant consideration to be taken into account when engaging in balancing the competing considerations in favour of, and against, release of the information. Similarly, I have accepted that disclosure of some of the information could reasonably be expected to have prejudice the professional and personal reputations of at least two senior academics. 55The applicant claimed that his 'motives' for his access application is to add to the body of university records already held which, through public scrutiny, allow for proper accountability of this organisation. In an earlier statement made by the applicant dated 27 July 2010 it was clear that there was some factional interests at the University and the applicant had made serious allegations of impropriety against Dr Slade and Dr Mack. Whether as a result of those allegations, or independently, relations between various members of the faculty could only be described as acrimonious. The Respondent submitted that there is more than reasonable cause for concern that the purpose of the application is obtain information for the purpose of publicly discrediting Dr Slade and Dr Mack. In Camilleri v Penrith City Council [2012] NSWADT 196 I considered the relationship between the applicant and the person referred to in the information sought ('the other person'), and its bearing on s.55(1)(b) and (c) of the GIPA Act. In that matter I considered that because of the acrimony between the applicant and the other person, I found no purpose would be served in providing the applicant with the information which gave rise to the investigations the subject of the application. To do so would only serve to exacerbate the already poor relations between the applicant and the other person. Similarly, in this matter, I consider that there is evidence of clear tension between Dr Slade and Dr Mack on the one hand, and Dr Pemberton, on the other. Disclosing the information is likely to exacerbate their personal conflicts. This weighs heavily in my view against disclosure. 56In weighing up the public interest considerations for and against disclosure outlined above, I find the Respondent's evidence and submissions are sufficiently persuasive for it to have discharged its onus under s.105 of the GIPA Act. I find that overall the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.
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 June 2014
Pemberton
Macquarie University