Pemberton v Macquarie University

NCAT Administrative and Equal Opportunity|2014-06-07

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 :

a correspondence between an Employee Relations Manager and the Academic Registrar in relation to contemplated disciplinary action against a University staff member - document 1a of the Schedule
A memorandum from the Academic Registrar to a member of staff which takes the form of a notice requiring the employee to respond to certain matters relating to the processing of a 2008 FOI request made by Dr Pemberton - document 1b . 15Having carefully read those documents however, they do not, in my view, fall within the scope of the application.

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:

identify the relevant public interest considerations in favour of disclosure
identify the relevant public interest considerations against disclosure.
determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies. 17Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure: s.105(1) GIPA Act. 18Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 19Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

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:

the possibility not certainty of 'workplace bullying' and harassment of staff and students, especially those of a junior and/or female status;
the issue of alcohol consumption especially in relation to harassing or violent behaviour is a very real topic in this state and the records may disclose serious matters in relation to this as a public workplace including how management responded to legitimate expressions of concern over such matters;
the treatment of high-fee paying international students at tertiary educational institutions is a matter of public concern-there has been a Commonwealth parliament enquiry-and the documents sought allegedly throw light on poor practices in this regard;
corruption and financial mismanagement is a major topic in this state and it is alleged some of the documents sought will throw light on such matters in a public institution
an earlier major article in a national newspaper on other-in some respect-similar matters at the same institution confirm the great public interest in the matters allegedly raised by the records sought in this request. 26Some of the withheld material, as far as I could see, did relate to allegations of improper conduct in the workplace which had been the subject of an investigation. There was no mention of alcohol consumption, nor the treatment of high-fee paying international students, although the complainant was apparently from overseas. Similarly, there was nothing that appeared to relate to corruption and financial mismanagement. 27As to the Category 2 documents in particular, the applicant claimed the respondent had previously denied the existence of records over an alleged complaint against the same person by another person. The documents sought, he submitted, will indicate how a public institution handled a serious workplace allegation on a type of matter which has become of wide public interest. There are grounds for suspecting the records will reveal a flawed process. Even the respondent conceded in its submissions that the investigation lacked appropriate 'formality or rigour'. The applicant claimed that there was intervention by Dr Slade, which 'warrants explanation'. This is not apparent, and in any event, appears to be outside the scope of the application. 28The applicant submitted 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. 29Cat 3 A possible reason in favour of disclosure might be the ability of the public to access information in relation to the processing of FOI/GIPA requests (and therefore to seek to hold them to account in relation to that).

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:

disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl.1(d) of the Table
disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: cl.1(f) of the Table
disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed): cl.1(h) of the Table.
disclosure of the information could reasonably be expected to reveal an individual's personal information: cl.3(a) of the Table
disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002: cl.3(b) of the Table
disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory: cl.3(e) of the Table
disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests: cl.4(d) of the Table 32In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered (at [26]) that s.14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government". 33To raise these as relevant considerations in the application of the public interest test the Respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table. "Could reasonably be expected to" has been held to mean "something which is more than a mere, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. 34Each other public interest consideration against disclosure is discussed below. There is some overlap in the relevant considerations.
disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl.1(d) of the Table
disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: cl.1(f) of the Table
disclosure of the information could reasonably be expected to prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed): cl.1(h) of the Table. 35"Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 36It was submitted that it can be inferred that the effectiveness of internal investigations within the University depends on people interviewed being comfortable that information that they provide will be kept confidential. If the Category 2 documents are disclosed, it was submitted, the supply of confidential information to the University could reasonably be expected to be prejudiced. Further, it was submitted, that if confidential information is provided in the context of investigations, there is also a realistic prospect that the University's functions, one of which is to investigate matters relating to its staff, will be hindered because the discharge of that function at least in part depends on the ability for the individual to provide sensitive information confidentially. 37In Camilleri the Appeal Panel commented that "the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33]. The enquiry as to whether the information is "confidential" is to "focus on the point of receipt, and the administrative standards and community understandings which surrounded it" and "factors relating to the later history of the information or document" are not relevant: at [34]. 38The Respondent's evidence was that it had appointed an investigator seeking information from certain individuals for the purpose of an internal investigation into sensitive allegations made against another University employee, namely, Dr Mack. The Respondent submitted that disclosure of the material would likely prejudice the University's ability to conduct future internal investigations, if it were the case that the results of those could then be published to individuals in respect of whom the reports do not even relate. A review of the Category 2 documents also reveals private and confidential exchanges between staff about the matters the subject of the investigation. I accept that there is a public interest in keeping communications of this kind confidential and not subject to disclosure in order to avoid compromising the process of investigation of which they form part. Disclosure of them may compromise the process of conducting internal investigation of complaints, which I accept as being an important function within a tertiary academic environment. 39The applicant submitted that the exchanges were between public officials in the course of their employment, carrying out tasks, which were part of their broad duties. The applicant did not dispute that they were 'confidential' communications but contended that 'the whole purport of the GIPA is to make available to public access, except where there is a public interest in specific against so doing, documents which were confidential'. 40The applicant further contended that the respondent's claim that the release of such records would hinder future internal investigations is speculative and arguably fanciful. I reject that contention. As a matter of commonsense the nature of an investigation of the kind undertaken necessarily required the co-operation of staff members in the course of the investigation. There was no evidence of an obligation to co-operate. I consider that disclosure could reasonably be expected to prejudice the supply to an investigator, on behalf of the Respondent, confidential information that facilitates the effective exercise of the University's functions: Black v Hunter New England Area Health Service [2008] NSWADT 301 at [35]; Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10]; Williams v Department Industry and Investment [2012] NSWADT 192). 41I accept 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. I accept that disclosing this confidential information could reasonably be expected to prejudice the future supply of such information.
disclosure of the information could reasonably be expected to reveal an individual's personal information: cl.3(a) of the Table
disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002: cl.3(b) of the Table 42The University's Privacy Management Plan, which was annexed to Mr Fraser's statement, notes that the University regards information concerning employees as personal information under the PPIP Act. 43In respect of the Category 1 information, the applicant contended that the leave records being sought are not 'personal records' but are those of a public organisation and are not of themselves 'personal information'. I do not agree. The records show when staff members were absent and the reasons for their absence. Further, I note that Dr Slade strongly objected to the release of her personal information. 44In relation to the Category 2 documents, the Respondent contended that documents 3a to 3j of the Schedule contain the personal information of several individuals, including Dr Helmke, Dr Mack, and Dr Slade. There were no draft redactions and it was not always apparent from the face of each document what was the personal information to which the Respondent referred. Both Dr Mack and Dr Slade were adamant that they unequivocally refused consent to the disclosure of documents containing personal information, while Dr Helmke consented to the release of that information. While their views are taken into account, they are not determinative.
disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory: cl.3(e) of the Table 45In my view this factor applies at least to parts of document 3c, and probably other of the documents. The applicant noted that the University and its staff are effectively protected from action in defamation for release of the material sought in this GIPA request vide GIPA S.113. Without coming to a view about that contention, while this may be so, the effect of the release of information in a work or other environment is, 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.
disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests: cl.4(d) of the Table 46The Respondent submitted that disclosure of some of the information sought by the Applicant could reasonably be expected to have the effect of prejudicing a person's legitimate professional interests, in that the information would likely prejudice the professional and personal reputations of at least two senior academics, and also adversely affect their financial positions and capacity to obtain future employment. Having read the documents withheld I agree that this could be an outcome if the information was released. The submission in respect of future employment was stronger in respect of Dr Slade, who I was informed, currently holds a senior academic position in the United Kingdom, than Dr Mack, who holds only an honorary position and is substantially retired. 47The applicant contended that the Respondent has interpreted this clause too broadly as to provide a blanket exemption against any disclosure of any information about public officials conducting their professional activities in the course of their employment. I do not understand that to be the Respondent's submission at all.

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

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Judgment (11 paragraphs)

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