Pemberton v University of New South Wales

The objects of the GIPA Act are 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. 7It was not disputed that the information the subject of this application, is government information and is held by an agency: s.4(1) of the GIPA Act. 8Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.' 9Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information. 10Section 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 11The public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act ('the Table').

EVIDENCE 12I have carefully read the documents which were provided to the Tribunal on a confidential basis. 13The Respondent relied on a confidential statement by Carol Kirby, UNSW's solicitor and an open statement and a confidential statement by Professor Les Field, Vice President and Deputy Vice-Chancellor (Research) UNSW. The Applicant submitted that as he is not seeking information about complaints of alleged research misconduct or of any alleged research misconduct of any academic at UNSW or elsewhere, much of Professor Field's statement about confidentiality in relation to allegations of research misconduct, raised by the Respondent, is irrelevant.

ISSUE BEFORE THE TRIBUNAL 14Is there an overriding public interest against disclosure of the information sought by the Applicant in terms of s.13 of the GIPA Act?

CONSIDERATION 15In relation to information in one document, item 16, the Respondent submitted that there is a conclusive presumption of an overriding public interest against disclosure, as it would be privileged from production in legal proceedings on the ground of client legal privilege: s.14(1) Sch 1, cl 5(1). The document in question is an email by Professor Lumby to Ms Kirby, UNSW's solicitor and Professor Donald. The email does not contain legal advice, nor does it contain a specific request for legal advice. I do not consider the email to attract legal professional privilege, although other considerations in respect of other bases for claimed overriding public interest against disclosure have been considered in relation to the document.

Tribunal's process 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.

Public interest considerations in favour of disclosure 19Section 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. 20In his application for review the Applicant identified factors he says favour disclosure. He wrote that the documents sought concern matters of public interest in relation to academic freedom to express opinions, the merits or otherwise of academic research on a subject such as pornography, and workplace bullying. 21The Applicant also contended that the information sought bears directly on matters of great public interest, including: the possibility not certainty of 'workplace bullying' in the form of internal administrative action by a more senior employee against a more junior employee. Although the Respondent has, as yet, no judgment of whether there was bullying in this case, the phenomenon of 'institutional bullying' is widely recognized; while allowing that there are other limits on the expression of opinion such as on grounds of security or defamation, administrative action by an employer against an academic expressing an opinion about a published work clearly might affect the freedom and, just as importantly, sense of freedom of academics to express such opinions; the acceptable limits on freedom of expression including critical opinions of a scholar's work; the competing views over the merits of both generally and, in specific cases, of academic research on such publicly-sensitive subjects as pornography. The famed Kinsey publications of 1948 and 1953 faced similar criticisms. There were questions asked in the Australian Senate about this research project and concern expressed in the Australian Research Council indicating the degree of public interest in this particular case; the shift in positions of different generations of feminist or female scholars on issues such as pornography over the last fifty years; the decision of the Australian newspaper to commission a major article on this subject, which will proceed with or without the UNSW documents, indicates further the level of public interest in this case and the issues it raises. 22It was not clear to me on the evidence, as to why the information sought might have any connection with any 'workplace bullying'. Bullying is not alleged in Professor Lumby's letter. I also find there to be no evidence that the documents in question relate to feminist issues or the developing views of female scholars on issues such as pornography. 23That a newspaper may commission a major article, does not, in my view, demonstrate a public interest in favour of disclosure. 24The academic freedom to express opinions is a subject which is raised, to some degree, by Professor Lumby's letter. I accept that there are issues in relation to the freedom of academics to express opinions critical of the work of other academics, and that this includes discussion in relation publicly-sensitive subjects as pornography.

Public interest considerations against disclosure 25The general public interest considerations against disclosure are limited to those set out in the Table. 26In 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". 27To 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. 28"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]. 29The 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 found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence: cl 1(g) of the Table disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant: cl 2(a) 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: cl 3(b) of the Table disclosure of the information could reasonably be expected prejudice any person's legitimate business, commercial, professional or financial interests: cl. 4(d) of the Table 30Having regard to the Applicant's concession that he was not seeking personal information, I have not addressed clauses 3(a) and (b). Each 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 UNSW of its functions: cl 1(f) of the Table
• disclosure of the information could reasonably be expected to found an action against UNSW for breach of confidence or otherwise result in the disclosure of information provided to UNSW in confidence: cl 1(g) of the Table 31"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]. 32There are 3 relevant considerations:
• The information must be "confidential information";
• The supply of such information must facilitate the effective exercise of UNSW's functions; and
• Disclosure of the information could reasonably be expected to prejudice the supply to UNSW of such information. 33Firstly, is the information "confidential information"? In 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]. 34The Respondent submitted that it is irrelevant when considering whether the information is "confidential information" that the letter of complaint has already been disclosed to the Applicant. I agree, to the extent that this disclosure does not affect the context in which the information was provided to the Respondent. The Respondent made some confidential submissions about how Professor Lumby's letter was subsequently viewed. However, the relevant time for considering if the letter was supplied with an expectation of confidentiality is the time the letter was supplied, and not subsequently. 35The Respondent also submitted that UNSW's policies required Professor Lumby's letter to be dealt with confidentially, so that internal correspondence regarding that complaint, is also confidential information. In support of this contention the Respondent relied on Professor Field's detailed evidence about how UNSW handles complaints about potential research misconduct. The Applicant submitted that the Respondent's position was flawed because Professor Lumby's letter was not properly characterised as a complaint about potential research misconduct; indeed Professor Lumby wrote in the letter that she did not wish to impugn the research framework of her colleague, Dr Pringle. I agree that this aspect of the Respondent's submission is irrelevant. (The Respondent also made other submissions on the basis of research misconduct and these to have been disregarded.) 36Professor Field also wrote that under UNSW (Academic Staff) Enterprise Agreement, investigations and inquiries into allegations reported to the Deputy Vice Chancellor are required to be kept confidential. Similarly, UNSW Staff Complaint Procedure also requires UNSW to maintain confidentiality when dealing with staff complaints. The Respondent submitted that Professor Lumby's letter was a "complaint" within UNSW Staff Complaint Procedure. Professor Lumby had expressed concern that there was a potential risk of damage to UNSW's reputation, her own reputation and that of her co-authors, and a breach of UNSW's Code of Conduct which includes an obligation to "refrain from acting in any way that would unduly harm the reputation and career prospects of other staff, affiliates or students". 37Not for publication 38Irrespective of whether Professor Lumby's letter is properly regarded as a complaint, the Respondent's submission was that disclosure of some of the information could reasonably be expected to result in the disclosure of information provided to UNSW in confidence. I do not accept that Professor Lumby's letter and other communications by her concerning the letter were provided to UNSW in confidence. From the letter it was clear that she was seeking advice. She published the letter widely amongst colleagues, and in those circumstances an expectation of confidentiality is unlikely. 39Although it is unclear how the applicant is in a position to do so, given that the list was not provided to him, he contends that most of the records are not concerned with provision of information, confidential or otherwise, to UNSW and that the records are correspondence between colleagues about a public matter - discussing it, seeking advice and expressing concerns. Even information exchanged between UNSW staff members addressing Professor Lumby's concerns may fall within this category, insofar as disclosure of it would reveal information provided to UNSW in confidence. 40The Applicant noted that UNSW employees provided information to UNSW management, none of which was marked as 'confidential'. While this may be so, the failure to mark a document or correspondence as 'confidential' is not fatal to a claim of confidentiality, although such a notation may serve to assist in a claim of confidentiality. 41The Applicant contended that the Respondent's claim that Professor Lumby's letter shows that Professor Lumby expected her complaint would remain confidential cannot be sustained. He contended that if a complaint was made, Professor Lumby would have been aware Dr Pringle would have been informed. He speculated that Dr Pringle would seek legal and/or union advice and, if an adverse finding was made by UNSW, she would take legal action. 42The Applicant made some observations that Professor Lumby, in subsequent correspondence with colleagues at both UNSW and QUT, had made it clear, that their correspondence was 'discoverable' and they should frame their communications accordingly. The Applicant sought to contend that Professor Lumby regarded this correspondence as open to lawful public disclosure and thus not 'confidential' in the sense provided for in the GIPA Act. The Applicant had noted that this occurred after his GIPA application and to that extent, his contentions are not relevant to the consideration of information created before that date. 43I therefore do not accept that the conditions under which UNSW received the letter from Professor Lumby were such as to make the information "confidential information": Camilleri at [33]). 44As to the subsequent emails I consider that these too were not sent to UNSW in any expectation of confidentiality, especially as some were copied to other persons or forwarded to others. 45Secondly, and even if I am wrong in relation to confidentiality, does the supply of such information facilitate the effective exercise of UNSW's functions? 46University of New South Wales Act 1989 ('UNSW Act') sets out UNSW's statutory functions which include: the provision of facilities for education and research of university standard the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry the development of governance, procedural rules,... and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in [s 6(2) of UNSW Act], and that are sufficient to ensure the integrity of UNSW's academic programs commercial functions comprising the commercial exploitation or development, for UNSW's benefit, of any facility, resource or property of UNSW or in which UNSW has a right or interest (including, for example,... research...) such general and ancillary functions as may be necessary or convenient for enabling or assisting UNSW to promote the object and interests of UNSW, or as may complement or be incidental to the promotion of the object and interests of UNSW 47The Respondent submitted that the supply of information about potential misconduct of a staff member facilitates the effective exercise of these statutory functions. Professor Field's evidence was to the effect that the provision of information concerning alleged misconduct by an academic staff member facilitates the effective exercise of UNSW's functions of managing staff grievances and ensuring that it complies with its contractual obligations. The effective management of staff grievances, which can only occur if people are willing to convey those grievances to UNSW managers, is an ancillary function which is necessary or convenient to assist UNSW to promote its object and interests: UNSW Act s.6(3)(c). When Professor Lubmy's letter was published, and when the subsequent correspondence occurred there was not yet a 'complaint' such that either UNSW's grievance procedures were to be invoked. 48Thirdly, as to whether the supply of confidential information be prejudiced, the Respondent submitted that disclosure of information about how Professor Lumby's letter was dealt with by UNSW staff members, could reasonably be expected to prejudice the supply to UNSW of confidential information. The question of whether disclosure could prejudice the future supply of confidential information involves a fairly abstract analysis: Camilleri at [29]. 49Referring to Professor Field's evidence at [14] the Respondent contended that if it were to provide third parties with information about complaints made to UNSW under the Staff Complaints Procedure, this would make it less likely that people would make such complaints in the future. While the Tribunal has frequently recognised that agencies will be less likely to receive information alleging misconduct or wrongdoing if there is no assurance of confidentiality (see, for example, Head v NSW Police [2010] NSWADT 27 and Ritson v NSW Police [2010] NSWADT 22), there was no evidence however about whether or not staff members were obliged to engage in discussions about Professor Lumby's letter. Consequently there was no evidence as to how the future supply of information of the kind supplied by persons in their positions in response to a request from those persons or persons in their positions, might be affected. 50I accept that there is some reliance by the Respondent on the co-operation of employees in investigating complaints and that disclosure could reasonably be expected to prejudice the supply to UNSW of confidential information that facilitates the effective exercise of its 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). disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant: cl 2(a) of the Table 51The Respondent submitted that disclosure of some of the information sought by the Applicant could reasonably be expected to have the effect of prejudicing the future supply of information to UNSW from an informant. The word "informant" bears a wide connotation, referring to "a person who gives information": New South Wales Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55 at [47]. Thus, a complainant giving an agency information about the situation about which he or she is complaining is an "informant" for the purposes of cl 2(a) of the Table. This is a broad definition. 52The Respondent submitted that persons making complaints about UNSW staff members, and bringing information about potential misconduct or other matters of concern to UNSW's attention, are less likely to do so if information about their complaints or concerns is disclosed to third parties in response to GIPA Act applications. Accordingly, the release of information concerning Professor Lumby's letter could reasonably be expected to have the effect of prejudicing the future supply of information to UNSW from an informant. 53In Tziolas v New South Wales Department of Education and Communities [2012] NSWADT 69 at [42] I considered the purpose of cl.2(a) of the Table: The function of Table 2(a) is to preserve and protect the identity of the informant and the information provided to an agency. The provider of information should be protected from any harm or detriment that would occur if certain information were disclosed, in circumstances where there is an express or implied obligation of confidence on the agency entrusted with the information. 54However, I do not accept, on the available evidence, that future provision of this type of information being provided by 'an informant' would necessarily be discouraged. disclosure of the information could reasonably be expected prejudice any person's legitimate business, commercial, professional or financial interests: cl. 4(d) of the Table 55The 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 disclosure of information or an opinion critical of the way in which an academic carried out his or her research could prejudice that academic's legitimate professional interests. I accept that an academic is a "professional" with interests to which cl.4(d) of the Table applies. 56The Applicant submitted that the Respondent's contention in this regard was so broad as to provide a blanket exemption for any disclosure of information about public officials conducting their professional activities in the course of their employment. 57I do not accept that disclosure of the information could prejudice academic(s)' legitimate professional interests. Professor Lumby's letter opened a dialogue with amongst colleagues. There was no criticism of the way in which academic research was carried out and therefore I reject the contention that there is public interest against disclosure on this basis.

Balancing the public interest considerations 58The 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. 59The 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]. 60There 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. 61Even if I am wrong in having found Professor Lumby's letter does not amount to a complaint, I accept that there is a public interest in keeping complaints and complaint handling confidential. I have accepted that there is some reliance by the Respondent on the co-operation of employees in investigating complaints and that disclosure could reasonably be expected to prejudice the supply to UNSW of confidential information that facilitates the effective exercise of its functions including handling staff grievances effectively. In Selby v Commissioner of Police NSW Police Force [2013] NSWADT 61 at [92]), to which I was also referred, I expressed the view that "that cl.(2)(a) [prejudice the supply of information from an informant] is an inherently weighty consideration". There is considerable difference though in information about police rewardees and academics criticising the work of other academics and informing their colleagues. 62In Bourke v Roads and Maritime Services [2012] NSWADT 272 at [62], to which I was referred, I attached "significant weight" to factors including "that the disclosure could be reasonably expected to prejudice the supply of confidential information to the Respondent that facilitates the effective exercise of its functions; and that the disclosure is one that could be reasonably expected to result in the disclosure of information provided in confidence to the Respondent; that the disclosure is one that could be reasonably expected to reveal the identity of an informant". 63I have accepted that there are issues in relation to the freedom of academics to express opinions critical of the work of other academics, and that this includes discussion in relation publicly-sensitive subjects as pornography. The Respondent acknowledged that there are tensions between an academic's freedom to express opinions and the need to protect individuals' reputations. 64Notwithstanding Camilleri, each case is to be decided on its merits. In weighing up the public interest considerations for and against disclosure outlined above, I find the Respondent's evidence and submissions are not 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, do not outweigh the public interest considerations in favour of disclosure.

ORDERS 1.The Respondent provide to the applicant the information in the documents numbered 16, 30, 31, 35, 36, 38, 42, 43, 44, 45, 46, 47, 52, 53, 54, 55, other than as to private mobile numbers, email and home addresses or personal relationships. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 28 February 2014