Williams v University of New England

NCAT Administrative and Equal Opportunity|2021-04-23

Solicitors: Applicant (Self Represented) Sparke Helmore Lawyers (Respondent) File Number(s): 2020/00282925 and 2020/00342977 Publication restriction: Subject only to the Order for release, section 64 of the Civil & Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis and that material is not to be released to either the Applicant or the public.

REASONS FOR DECISION

By two separate applications to the Tribunal filed 30 September 2020 (AR Application 1) and 3 December 2020 (AR Application 2) the Applicant seeks a review of two decisions of the Respondent under s 9(1) of the Government Information (Public Access) Act 2009 (GIPA Act).

The Hearing

The hearing occurred by telephone on 23 April 2021 (Hearing) and, at the time of the Hearing, the Applicant confirmed that they were only pressing for access to the Complaint.
In addition to the AR Application (and the documents attached to them), before me at the Hearing were the following submissions and evidence: 1. For the Applicant: 1. Applicant's Submissions filed 2 February 2021 (Applicant Submissions); and 2. Applicant's Submissions in response to the Respondent Submissions submitted 23 March 2021 (Applicant Reply Submissions). 1. For the Respondent: 1. Submissions of the Respondent filed on 2 March 2021, together with attached annexures (Respondent Submissions); 2. the document (i.e. the Complaint) filed on a confidential basis on 2 March 2020; 3. Professor Heiko Daniel Affidavit filed 1 March 2020 (Prof. Daniel Affidavit); 4. Professor Lewis Kahn Affidavit filed 1 March 2020 (Prof. Kahn Affidavit); 5. Supplementary Affidavit of Professor Lewis Kahn filed 30 March 2021 (Supplementary Affidavit); and 6. Confidential Affidavit of the third party individual who sent the Complaint filed on a confidential basis on 30 March 2021 (Confidential Affidavit).

Issue to be determined

By the time of the Hearing, the issue to be determined by the Tribunal is whether the Respondent's decision to refuse to release the government information in the Complaint is the correct and preferable decision. That is, is there an overriding public interest against the disclosure of the government information in the Complaint.

Jurisdiction and Role of the Tribunal

The Tribunal has jurisdiction under ss 80(d) and 100(1) GIPA Act to review the Respondent's decision (in this case the Reviewable Decisions) to refuse to release the government information in question (in this case the Complaint) pursuant to s 58(1)(d) GIPA Act (see Jacobs v Commissioner of Police (NSW) [2013] NSWADT 54 at [26]).
It is not disputed that the Tribunal has jurisdiction to determine the AR Application or that the information the subject of the AR Application (i.e. the Complaint) is government information that is held by the Respondent under s 4(1) GIPA Act.
Under s 63(1) of the Administrative Decisions Review Act 1997 (ADR Act) the Tribunal is required to determine what is the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. As to the material before the Tribunal, see [13] above.
The Tribunal makes its own decision in place of the Respondent's decision, without any presumption that the Respondent's decision is correct. This process requires a broad value judgment to be made, having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, the principles set out in s 15 of the GIPA Act and the material before the Tribunal (see Transport NSW v Searle [2018] NSWCATAP 93 at [104]).
The Tribunal's decision must take account of the public interest considerations advanced to the Tribunal both by the Applicant to release and the Respondent for withholding the information in question, the respective evidence supporting those public interest considerations for and against release and then weight and balance those various competing public interest considerations.
Pursuant to s 63(3) ADR Act: Determination of administrative review by Tribunal … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In determining an application for review the Tribunal is also to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure (s 107(1) GIPA Act).

Objective of the GIPA Act

As is well known, but it bears repeating, the object of the GIPA Act is to open up government information to the public, which object is to be realised by: 1. agencies authorising and encouraging proactive public release of government information (s 3(1)(a) GIPA Act); 2. giving members of the public an enforceable right to access government information (s 3(1)(b) GIPA Act); and 3. restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c) GIPA Act).

Presumption in favour of disclosure

Furthering the objective of the GIPA Act there is a presumption in favour of the disclosure of government information, unless it is established that there is an overriding public interest against such disclosure (s 5 GIPA Act). Under s 9(1) GIPA Act a person who makes an application to access government information has a legally enforceable right to be provided with such access, unless it is established that there is an overriding public interest against the disclosure of the information.
Section 12 GIPA Act reiterates the general presumption (or establishes that the starting point is) in favour of disclosure of government information (s 12(1) GIPA Act) and provides that there is no limit on the public interest considerations in favour of disclosure that may be taken into account (s 12(2) GIPA Act). Some non-exhaustive examples of public interest considerations that favour disclosure are also noted in s 12 GIPA Act: "Public interest considerations in favour of disclosure … Note - The following are examples of public interest considerations in favour of disclosure of information: Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. The information is personal information of the person to whom it is to be disclosed. Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct."
In this case, s 13 GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."

Public interest considerations against disclosure

As no conclusively presumed overriding public interest(s) against disclosure under s 14(1) GIPA Act is being claimed by the Respondent, the only public interest considerations against disclosure that can be considered by the Respondent (in this case) and the Tribunal are those exhaustively set out in the s 14 GIPA Act Table. In this case the s 14 GIPA Act Table relevantly includes (i.e. in its submissions the Respondent relies on) the following as the public interest considerations against disclosure of the government information in the Complaint: "14 Public interest considerations against disclosure … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, …"
As regards item 1(d) s 14 GIPA Act Table, there are three elements to be considered: whether the information was obtained in confidence, whether the information facilitates the effective exercise of the agency's functions and whether disclosure could reasonably be expected to prejudice the supply of such information to the agency in future.
As noted by Senior Member Montgomery in Jones v NSW Department of Education [2017] NSWCATAD 51 at [27], the relationship between the relevant sections of the GIPA Act that address the public interest considerations against disclosure was examined in the Administrative Decisions Tribunal Appeal Panel case of Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19, which noted most relevantly: "26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. 27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'. 28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13, the Appeal Panel said: 58. In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: 'The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' 29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words: 'There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects .:.' 30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect."
Approach to deciding whether to refuse access under the GIPA Act
Section 15 GIPA Act sets out the principles that apply to determining whether there is an overriding public interest against disclosure of the information in question: "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."
The process for deciding whether to refuse access under the GIPA Act to the government information in question is to identify the public interest considerations in favour of and against disclosure of that information. Then it is necessary to consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect(s) as contended by the Respondent. Finally, if so satisfied, allocate weight to each of these positive and negative considerations followed by a process of balancing them to reach a decision as to whether access to the information in question (in this case the Complaint) should be refused (Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9] and Lemon v Department of Planning and Environment [2019] NSWCATAD 148 at [64]).
Because of the presumption in favour of disclosure, the Respondent bears the burden of justifying its decisions to refuse the Applicant access to the Complaint (s105 GIPA Act). The Respondent has the burden of establishing that the public interest considerations against disclosure on which it relies actually apply. It is not sufficient that the Respondent merely makes an assertion that the relevant risk 'could reasonably be expected' (Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 at [32]). The Respondent must establish both generally and specifically that in this case the disclosure of the information could, pursuant to items 1(d), 1(g) and 3(a) s 14 GIPA Act Table, reasonably be expected to: 1. prejudice the supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions; 2. found an action for breach of confidence or disclose information provided in confidence; or 3. reveal an individual's personal information.
If it is established that the claimed public interest considerations against disclosure 'could reasonably be expected to' have the enumerated effects the Respondent then bears the burden of establishing that, on balance, these outweigh the public interest considerations in favour of disclosure.
In determining whether the Respondent's claimed effects of the release of the Complaint could reasonably be expected the Tribunal considers whether disclosure could reasonably be expected to have the nominated effect(s), firstly in the broad and general sense and then, secondly, whether it could be reasonably expected in this case. If (but only if) such a reasonable expectation is established the Tribunal then considers what weight should be given to the public interest consideration(s) against disclosure and weighs them up against the public interest considerations in favour of disclosure.

Unconditional release of government information

Under s 73(1) GIPA Act an agency (i.e. the Respondent in this case) is not entitled to impose any conditions on the Applicant's use or subsequent disclosure of the government information released by it under a GIPA Act access application (in this case the First Access Application and the Second Access Application). While referring to similar provisions under the Freedom of Information Act 1989, the Administrative Decisions Tribunal in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33, considering a number of prior cases, stated relevantly at [42]: "The theory, at least, is that once access is given under FOI to one citizen, any other citizen who makes the same request should have the same rights: see further Humane Society v National Parks and Wildlife Service [2000] NSWADT 133 at [26-31] … … I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants…who make the identical request…There is, for example, no mechanism in the Act allowing for conditional or limited disclosure once a request is granted under FOI."
Other than as to the form of access in certain cases, while release under the GIPA Act is unconditional as to any conditions sought to be imposed by the agency (i.e. Respondent in this case) in respect of the released information, such release does not impact any underlying rights (e.g. intellectual property rights) of any person in the information released (see my discussion in Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at [48(6)]).

Third party consultations

Subject to certain conditions, an agency must consult with any third party before providing access to government information that relates to that third party or includes their personal information (s 54 GIPA Act). The purpose of consultation is to ask whether the third party objects to the disclosure of the information and, if so, the reasons for any objection (s 54(4) GIPA Act). Section 54(5) GIPA Act provides that the agency (i.e. the Respondent in this case) is required to take any objection from a third party into account in determining whether there is an overriding public interest against disclosure of the government information.
Consultation for the purpose of identifying objections from third parties should take place before the Respondent does the balancing exercise required by s 13 GIPA Act. If the Respondent's decision involving third party information becomes reviewable by the Tribunal, s 104(3) GIPA Act gives the third party a right to appear and be heard in any proceedings before Tribunal in relation to the review.
In this case the Confidential Affidavit was filed by the Respondent on a confidential basis but the third party did not attend the Hearing.

Applicant's submissions

In the Applicant Submissions the Applicant submitted, in summary and most relevantly, as follows: 1. The internal reviews culminating in the Remitted Decision and Second Decision were procedurally flawed, not independent or impartial. 2. As a personal factor in favour of disclosure of the Complaint, it is a basic rule of natural justice that a person the subject of disciplinary proceedings is entitled to know the substance of the allegations against them in order to respond to them. The Respondent's Research Related Complaints and Allegations Procedures (version from 05/09/2016 to 22/06/2019) (Procedures) that were relevant at the time of the allegation being made by the third party states that: "The subjects of complaints… must be treated in accordance with legislative requirements, the principles of procedural fairness, natural justice and with respect to cultural sensitivities." 1. The Respondent failed to consider and weigh up the personal factors under s 55(2) GIPA Act in the review leading to the Remitted Decision. Citing Whittaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183 the Applicant notes that, at [138], the Tribunal states: "There is no public interest in preventing the Applicant from seeing information and opinion about herself. Indeed s 14 of the PPIP Act gives her the right to access that information." 1. The relevant processes under the Procedures were not followed in relation to the Complaint. Therefore, there can be no confidentiality in relation to the Complaint given that the Procedures relating to confidential complaints were not followed. 2. The third party revealed the plagiarism allegations in the Complaint to numerous staff members of the Respondent and the Respondent also revealed those plagiarism allegations to numerous staff members of the Respondent. There is an overriding public interest consideration in favour of disclosure given that both the Respondent and the third party complainant cannot demonstrate that the Complaint (and its contents) was in fact confidential and dealt with in confidence. 3. Further public interest considerations in favour of disclosure are that the 'disclosure of the information could reasonably be expected to': 1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; 2. inform the public about the operation of agencies and, in particular, their policies and practices for dealing with members of the public; and 3. reveal or substantiate that an agency (or a member of the agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. Specifically, as regards the claimed public interest consideration against disclosure under item (1)(g) s 14 GIPA Act Table, the Complaint cannot be confidential because the third party did not follow the relevant Procedures but rather made several phone calls to various staff of the Respondent with respect to the Complaint. Further, after receiving the Complaint, the Respondent did not follow the Procedures. 2. There is a public interest in knowing how research complaints are actually reported and investigated by a university and, in particular, how vexatious, bad-faith and frivolous complaints are actually investigated by a university and how natural justice and procedural fairness in such investigations undertaken by a university is ensured. 3. Finally, the Applicant noted that the following support the overriding public interest in favour of disclosure of the Complaint, given the Respondent is accountable to the public in the circumstances where: 1. a staff member of the Respondent reports an external research partner is not complying with a research agreement associated with publicly funded research and there is a lack of action taken by the university administration in response to these reports; 2. a staff member of the Respondent reports bullying by an external research partner and the lack of action taken by the university administration in response to these reports; 3. a staff member of the Respondent reports concerns of integrity and reliability of the data provided by an external research partner to a publicly funded university including the potential consequences of breaching Australian Consumer Law; 4. a research partner publishes a report despite the Respondent requesting that the publication not appear until concerns about the integrity and reliability of the data provided for the report are resolved; and 5. relevant Procedures have not been undertaken by the university which would usually be undertaken in respect of a finding of a false or vexatious complaint.

Respondent's submissions and evidence

After briefly noting the public interest considerations in favour of disclosure and that the Tribunal may have regard to personal factors of the Applicant in determining whether there is an overriding public interest against disclosure of the information to the Applicant pursuant to s 55(2) GIPA Act the Respondent submitted, in summary and most relevantly, that: 1. Items 1(d), 1(g) and 3(a) s 14 GIPA Act Table are the public interest considerations against disclosure and the nominated effects could reasonably be expected to arise. 2. In relation to items 1(d) and 1(g) s 14 GIPA Act, the Complaint is confidential as it was made to a senior officer of the Respondent who treated the Complaint in a confidential manner and assessed it against the Procedures before referring it to the appropriate officer in the relevant Faculty (i.e. Prof. Murphy) for management. The senior officer did not discuss the Complaint with others, other than the Applicant and the head of the relevant Faculty (i.e. Prof. Murphy). 3. It is the Respondent's practice to treat complaints in a confidential manner in accordance with the principles set out in the Procedures and the new procedures. 4. To disclose the Complaint in this instance could reasonably be expected to prejudice the outcome of the Respondent's review by the Australian Research Integrity Committee which may affect the Respondent's funding by the National Health and Medical Research Council (NHMRC) or the Australian Research Council (ARC) due to non-compliance with the "Australian Code for the Responsible Conduct of Research 2018" (Australian Code). 5. Disclosure of complaints handling information can prejudice the agency's ability to undertake complaints management handling in the future. 6. The Respondent's actions were consistent with the relevant policy (i.e. the Procedures) and, in any event, irrespective of whether it had a complaints handling process in place or complied with such a process, the Complaint is confidential and confidentiality may be inferred from all of the circumstances. 7. As regards item 3(a) s 14 GIPA Act Table, the Complaint contains the personal information of the individual (i.e. the third party) who sent the Complaint, including the individual's name and contact details, and that personal information has not been revealed to the Applicant to date. Further, the Respondent notes that the third party has objected to the disclosure of the Complaint to the Applicant.
The evidence of Prof. Heiko Daniel in the Prof. Daniel Affidavit is, in summary and most relevantly, that: 1. Prof. Daniel is Deputy Vice Chancellor Research in which role he provides strategic leadership for all aspects of the university's research activities, oversight of the Respondent's Research Strategic Plan and oversees strategies and operations of the Research Services Directorate. 2. Following receipt of the Complaint on 3 April 2019 the DVCR Office assessed the Complaint against the Procedures and advised AOL it would be handled by the Faculty, with the Dean (Prof. Murphy) the appropriate officer of the Respondent to initially deal with the complaints and allegations in the Complaint. Although the Procedures refer to the School level, Faculties were subsequently established by the Respondent and Prof. Daniel considered that the Faculty was the appropriate level to deal with the Complaint. 3. To the best of Prof. Daniel's recollection, from the time he became aware of the complaint on or about 3 April 2019 until 29 November 2019 when the Respondent's Right to Information Officer requested records related to the Complaint, Prof. Daniel only spoke about the Complaint to Mr Fuller (who was at the time the Executive Officer - Research Services) who had received the earlier complaint email and the Complaint on 3 April 2019 from AOL. 4. Based on information provided to Prof. Daniel by the Respondent, he concluded that the email dated 3 April 2019 (i.e. the Complaint) was a formal complaint and that clause 7 of the Procedures provides: "(7) Complaints and allegations made under these procedures should be treated confidentially with respect for the person(s) making the complaint or allegation and the subject(s) of the complaint or allegation." [emphasis added] 1. Formal complaints received by the Respondent are treated confidentially and the Respondent adheres to the principles in the Procedures when handling complaints and, from his involvement in this matter, Prof. Daniel confirmed that he dealt with this matter confidentially and did not disclose any of the information in the Complaint to other staff members of the Respondent, other than Mr Fuller and Prof. Murphy as Dean of the relevant Faculty. 2. It is industry practice to keep research complaints confidential as confirmed by the Australian Code and the Code Framework and the Guide. 3. The Respondent will potentially be prejudiced if the confidentiality of a complaint is not maintained as this may lead to an adverse review by the Australian Research Integrity Committee which may affect the Respondent's funding by NHMRC or ARC. 4. The Respondent's principles of respecting privacy and maintaining confidentiality are embedded in Principle 4 of the Respondent's Code of Conduct which has the same force and effect as a by‑law which, in turn, has the status of delegated legislation.
In the Prof. Kahn Affidavit and the subsequent Supplementary Affidavit Prof. Kahn's evidence is, in summary and most relevantly, that: 1. Prof. Kahn is employed by the Respondent as a Professor in Animal Science in the Faculty of Science, Agriculture, Business and Law. As at 3 April 2019, Prof. Kahn held the position of Associate Dean, Research in the Faculty of Science, Agriculture, Business and Law. 2. In early April 2019 the Complaint was referred to Prof. Kahn to deal with by Prof. Aron Murphy, Dean of Faculty of Science, Agriculture, Business and Law. 3. On initial review, Prof. Kahn did not consider the claim of plagiarism in the Complaint was substantiated and, on or about 10 April 2019, he spoke with a representative of AOL about the Complaint. 4. On 11 April 2019 he arranged for a meeting to be held on 12 April 2019 via teleconference between himself, the Applicant, Ms Niki Ford (from AOL) and Ms Rhonda Vohland (from AOL) to discuss and attempt to resolve the complaint of plagiarism. On this teleconference the Complaint and the accusation of plagiarism was discussed and Prof. Kahn expressed his view on that teleconference that there had been no plagiarism. However, the parties were unable to resolve the matter during the call. 5. To the best of his recollection, from the time Prof. Kahn became aware of the Complaint in early April 2019 to the time the Respondent's Right to Information Officer requested records related to the Complaint, Prof. Kahn only spoke about the complaint to the persons noted above in (4) and Prof. Murphy. 6. From Prof. Kahn's discussions with the Applicant, he is aware that the Applicant understands that Ms Ford had contacted Dr Lawson. However, Prof. Kahn did not discuss this matter or the Complaint with Dr Lawson. 7. Separate from the plagiarism complaint the Respondent and AOL had a broader dispute about the publication of the report that the Applicant had prepared and other matters relating to the research agreement between them. This broader dispute involved a number of meetings and correspondence exchanged between the Respondent and AOL in an effort to resolve the broader dispute. The email dated 23 September 2019 details instructions provided by Lloyd Thomson to Mr Peet (both of the Respondent) to take certain steps in an attempt to resolve the broader dispute with AOL. 8. Prof. Kahn confirmed that, despite the Lloyd Thomason email dated 23 September 2019, his evidence is that the steps taken to resolve the Complaint were done on a confidential basis.
In addition, the Respondent filed and put into evidence the Confidential Affidavit which, in summary and most relevantly, stated: 1. The deponent became aware of the GIPA Act request when the Respondent contacted AOL as a third party affected by an access application made by the Applicant. At that time AOL responded to that third party consultation and indicated that it objected to the disclosure of the Complaint. 2. AOL was again contacted by the Respondent once the proceedings were commenced to seek AOL's view about the disclosure of the Complaint as part of the Tribunal proceedings. 3. The content of the Complaint is confidential and contains the deponent's personal information, including their name, and they are not comfortable with it being released to the Applicant. 4. The deponent understands the Applicant has some information about the Complaint which was disclosed to them as part of the Respondent's efforts to resolve the Complaint, but the Applicant has not formally been advised that the deponent is the individual who made the Complaint. 5. The deponent sent the Complaint on the basis that it would be kept confidential in accordance with the Procedures. If complaints are not treated confidentially, in future it would not provide a protected process through which issues, that can't be resolved directly, are able to be determined. In which case the deponent would reconsider raising complaints if their personal details were to be disclosed.

Applicant Reply Submissions and submissions during the Hearing

In the Applicant Reply Submissions the Applicant submitted, in summary and most relevantly, that: 1. The Applicant was informed by Prof. Kahn of the person from AOL that had sent the Complaint and, during the teleconference which occurred on 12 April 2019 which stated aim was to resolve the Complaint issues, the relevant individual from AOL repeated the complaints contained in the Complaint in front of all the other participants in the teleconference, including the Applicant. 2. Other staff members of the Respondent, who were not involved in the complaint process, had knowledge of the accusation of plagiarism from the Complaint as this was discussed by them with the Applicant on a number of occasions. This includes Lloyd Thomson (Faculty Director, Business Development and Commercialisation, Faculty of Science, Agriculture, Business and Law) and Etaline Galbraith, the then Senior Legal Officer of the Respondent, and Prof. Nick Reid the Applicant's work supervisor. The lack of confidentiality is also evidenced by the email from Lloyd Thomson to the Chief Legal Governance Officer, Brendan Peet, dated 23 September 2019 (Attachment B to the Applicant Reply Submissions) which refers to a conversation including the accusation of plagiarism with Acting Dean, Prof. Caroline Gross. 3. Further evidence of the lack of confidentiality is found in some of the documents released on 9 October 2020 in response to the Second Access Application. In particular, documents 3 and 4 in the Schedule of Documents and the emails at pages 76, 77, 83 and 84 in the Annexures to the Respondent Submissions. These emails copy in Kathryn Dougall in Research Services and also reference legal advice from the Respondent's Legal Office. 4. The Australian Code requires information to be treated confidentially and to not be disclosed, unless required. The disclosures noted above in (1), (2) and (3) above do not appear to be in the "required" disclosures category. 5. The conduct of the Respondent in relation to the Complaint does not align with (i.e. the Respondent has not followed) the Procedures. 6. There is therefore an overriding public interest in favour of disclosure as disclosure of the Complaint could reasonably be expected to: 1. promote open discussion of the Respondent's affairs, enhance its accountability and/or contribute to informed debate on issues of public importance; 2. inform the public about the operations, policies and practices of the Respondent for dealing with the public; and 3. reveal or substantiate that the Respondent (or a member of the Respondent) has engaged in misconduct or negligent, improper or unlawful conduct. 1. The Applicant seeks access to the Complaint so that all relevant documentation can be provided to the NSW Police for consideration under s 314 (false accusations) of the Crimes Act 1900.

Could reasonably be expected to

When examining the Respondent's claims based on items 1(d), 1(g) and 3(a) s 14 GIPA Act Table the Tribunal must reach a view on whether disclosure of the information "could reasonably be expected to" have the nominated effect (Attorney General's Department v Cockcroft (1986) 10 FCR 180). In that case the Full Federal Court provided the following guidance, as helpfully summarised in Calderwood v Department of Planning, Industry and Environment [2020] NSWCATAD 200 at [40]: "The decision maker must make a judgement as to whether the expectation is reasonable, as opposed to something irrational, absurd or ridiculous. It is also regarded as undesirable to consider the operation of the expectations in terms of probabilities or possibilities. It is not appropriate to consider any specific degree of likelihood or probability but rather to determine whether the expectation was reasonably based. One should confine oneself to the language of the provision and attempt to form an opinion on the evidence as to what can reasonably be expected to happen if disclosure occurs."
In Leech v Sydney Water Corporation [2010] NSW ADT 298 at [25] it was stated that the test to be applied when considering whether the nominated effects could be reasonably expected is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility, risk or chance and must be based on real and substantial grounds not purely those which are speculative, fanciful, imaginary or contrived.

Prejudice the supply of confidential information

In Ansoul v City of Sydney [2017] NSWCATAD 65 the Tribunal summarised the principles to be applied in considering item 1(d) s 14 GIPA Act Table in the following terms: 33. "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, 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]. 34. In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question as to whether information is "confidential information" is to "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". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it". 35. In Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information." 36. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
In Raven v The University of Sydney [2015] NSWCATAD 104 Senior Member Lucy stated: "There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123].
The Appeal Panel in Camilleri observed, at [33], 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".

Revealing personal information

As regards item 3(a) s 14 GIPA Act Table, in Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 (Field) at [64] and [69], the Appeal Panel held that personal information is only revealed when it is publicly disclosed. Disclosure of personal information only to the Applicant is not sufficient to meet the test in Field (i.e. to be publicly disclosed).

Public interest considerations in favour of disclosure

All the public interest considerations in favour of disclosure (referred to at [39(6)], [39(9)], [44(6)] and in the Reviewable Decisions) must be considered in the balancing process to be undertaken by the Tribunal. In addition to the general presumption in favour of disclosure, I give significant weight to the public interest considerations in favour of disclosure: 1. informing the public about the operations of agencies (i.e. the Respondent in this case) and the policies and practices for dealing with the public; and 2. the information is the personal information of the Applicant.
I have also considered and give significant weight to the Applicant's personal factors under s 55(2) GIPA Act (see [39(2)] and [44(7)] above). That is, the motives of the Applicant to seek natural justice, know and answer the allegations made against them and to engage the Police as regards prosecution of false accusations.

Public interest considerations against disclosure

In determining if the Respondent's claimed public interest considerations against disclosure of the Complaint could reasonably be expected to have the nominated effects, I note and have taken into account the following: 1. on reviewing the confidential (unredacted) copy of the Complaint, nowhere in the Complaint is there any reference to it being confidential, provided in accordance with the Procedures and/or otherwise stating that it was a formal complaint; 2. further evidence that the Complaint may not be a "formal complaint" is that the first email of 9:37 am on 3 April 2019 and the subsequent Complaint at 12:20 pm on 3 April 2019 both refer to the sender of the Complaint wishing to discuss with Prof. Daniel "how we can resolve this and move forward swiftly", rather than being a complaint, referencing any formal complaint or the Procedures; 3. during the Hearing the Respondent's legal representative agreed that the concerns about (i.e. the public interest considerations against) the release of the third party's personal information in the Complaint under item 3(a) s 14 GIPA Act Table could be resolved by redacting the name, email address and other information specifically identifying the third party; 4. Prof. Daniel's evidence as to the confidential nature of the Complaint on its receipt is stated to be based on information provided to him and Prof. Kahn's evidence does not address whether or not the Complaint was a formal complaint; 5. paragraph (3) of the Procedures requires that persons considering making research-related complaints or allegations of a breach of the Respondent's Code of Conduct for Research rules or for research misconduct 'must initially consult the Research Integrity Advisor in Research Services, who may be approached in confidence for advice, an explanation of options and an outline of process'; 6. the Complaint (together with the earlier email dated 3 April 2019) refers to seeking to 'discuss how we can resolve this and move forward swiftly' with Prof. Daniel. This appears to be more in line with a request under paragraph (3) of the Procedures rather than a 'formal complaint', even though some detail of the issues/matters to be discussed is included; 7. many of the various emails attached to the Respondent Submissions (unfortunately not consecutively paginated) show that the contents of Complaint had, despite the evidence Prof. Kahn and Prof. Daniel in respect of their treatment of the Complaint, been sent and discussed by other staff of the Respondent including, at least, Kathryn Dougall, Lloyd Thomson, Brendan Peet and Prof. Gross; and 8. the email dated 14 January 2021 attached to the Applicant Submissions from Dr Andrew Lawson to the Applicant and copied to Mr Paul Martin notes that prior to the Complaint, AOL (and particularly the third party who sent the Complaint) had discussed the contents of the complaint with Dr Andrew Lawson of the Respondent, especially in relation to the issue of plagiarism. The email dated 14 January 2021 from Mr Paul Martin of the Respondent to the Applicant (attached to the Applicant Submissions) notes that Mr Martin of the Respondent had been contacted by the third party from AOL who sent the Complaint in early May 2019 (soon after the Complaint was sent) noting that the third party "did outline the areas of disagreement with you and with University, which reflect the same history and points of disagreement that we have discussed concerning the quality of the report and [their] assertion of plagiarism". Mr Martin also notes that he corresponded and discussed the contents of the Complaint with Dr Lawson and Andy Monk (also of the Respondent).
Based on the evidence presented by the Applicant and also on my reading of the documents attached to the Respondent Submissions and other evidence submitted to the Tribunal, I prefer the submissions and evidence of the Applicant that the Complaint was neither submitted in confidence nor as a 'formal complaint' submitted in accordance with the Procedures. In addition, if the Complaint were provided in confidence, I find that the subsequent correspondence and discussions regarding the contents of the Complaint (including the 12 April 2020 teleconference) would have negatively affected any confidential status the Complaint may have had and thus it cannot be considered confidential.
Having considered the submissions and evidence before me and my findings in [54] and [55], below I set out my findings as to each of items 1(d), 1(g) and 3(a) s 14 GIPA Act Table which the Respondent says, considered together, outweigh the public interest considerations in favour of disclosure: 1. Item 1(d) s 14 GIPA Act Table: I find that the Respondent has not established that the Complaint is confidential information or was provided in confidence to the Respondent. Thus, in this case, I find the disclosure of the Complaint could not reasonably be expected to prejudice the supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions. Even if the Complaint was provided in confidence and remained confidential, in these circumstances it is unlikely that an organisation such as AOL in the circumstances would not make a complaint if it was concerned about the quality, veracity or other research related issues regarding any work being done by the Respondent for which it is paying. This is, in my view, especially the case where there is available a formal complaint procedure (i.e. under the Procedures) under which any complaint would be treated confidentially in accordance with the Procedures, which Procedures were not availed of in this case. 2. Item 1(g) s 14 GIPA Act Table: For the reasons noted in (1) above, I find that the Respondent has not established that the Complaint is confidential information or was provided to the Respondent in confidence. Thus, in this case, the disclosure of the Complaint cannot reasonably be expected to found a breach of confidence action against the Respondent or otherwise result in the disclosure of any information provided to the Respondent in confidence. 3. Item 3(a) s 14 GIPA Act Table: Given the evidence before me (in particular see [53(3)] I find that, with the redaction of the name, email address and other information identifying the sender of the Complaint, any public interest considerations against disclosure of the third party's information can be overcome.

Balancing the public interests for and against disclosure

As noted in paragraph [56], I do not find that any of the Respondent's claimed public interests against disclosure are established. That is, the disclosure of the Complaint could not reasonably be expected to: 1. prejudice the supply to the Respondent of confidential information that facilitates the effective exercise of the Respondent's functions in respect of complaints from research partners or funders; 2. found an action for breach of confidence against or disclose information provided in confidence to the Respondent; and 3. with the appropriate redactions, reveal an individual's personal information.
Thus, in the absence of any public interest considerations established against disclosure after the redaction of the third party's identifying information, the presumption in favour of disclosure prevails and the Applicant must be provided access to the Complaint (subject to the redactions noted in [56(3)]).

Orders 1. The decisions of the Respondent under review as regards the 3 April 2019 email from Australian Organic Limited to the Respondent are set aside. 2. In their place the decision is made that the Applicant is to be given access to the relevant government information in question (i.e. the 3 April 2019 email), subject to the redaction of the name, email address and any other similar information identifying the third party who sent that email. 3. Subject only to the Order for release, section 64 of the Civil & Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis and that material is not to be released to either the Applicant or the public.

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

Amendments 07 June 2021 - Paragraph 56 - amended reference findings in first sentence Paragraph 57 - amended reference in first sentence Paragraph 58 - amended reference in last sentence 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: 07 June 2021

Administrative Tribunal Act 2013(NSW)

Freedom of Information Act 1989(NSW)

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Judgment (23 paragraphs)

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Legislation Cited (4)

Cases Cited (11)