McGuirk v University of New South Wales [2006] NSWADT 223

Pending Appeal :

CITATION: McGuirk v University of New South Wales [2006] NSWADT 223

DIVISION: General Division

APPLICANT PARTIES: Gerard Michael McGuirk RESPONDENT University of New South Wales

FILE NUMBER: 053332

HEARING DATES: 21/02/2006

SUBMISSIONS CLOSED: 02/21/2006

DATE OF DECISION: 08/01/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - protected disclosures - Freedom of Information Act - access to documents - protected disclosures

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989 Protected Disclosures Act 1994

CASES CITED: Neary -v- The Treasurer, New South Wales [2002] NSWADT 261

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

ORDERS: The University's determination not to provide Mr McGuirk with access to the document that he seeks is affirmed

REASONS FOR DECISION 1 Mr McGuirk has applied to the University of New South Wales for access to a document under the Freedom of Information Act 1989 ("the FOI Act"). By way of an application dated 8 July 2005 Mr McGuirk sought: "the submission by the University of New South Wales to the NSW Ombudsman referred to in Section 8.1.12 in the Report under Section 26 of the Ombudsman Act titled: Investigation concerning the conduct of the University in its consideration of a protected disclosure alleging maladministration within the Educational Testing Centre ." 2 The University's FOI Officer identified a document that fell within the scope of Mr McGuirk's application. That document was the 2001 "Submission of the University of New South Wales concerning Investigation by the NSW Ombudsman into the Receipt of a Protected Disclosure Concerning the Educational Testing Centre" ("the Submission"). She determined to withhold the document in full as she considered it to be partially exempt under clause 6 ("personal affairs") and fully exempt under clause 20 ("miscellaneous documents") of Schedule 1 of the FOI Act. That decision was affirmed on internal review. Mr McGuirk has sought an external review of the University's determination. 3 Copies of the following have been provided to the Tribunal on a confidential basis as annexures to a statement of Mr Richard Buckley, a Records Officer at the University: Document I: A copy of a letter from an officer of the Office of the NSW Ombudsman to the then Vice-Chancellor of the University informing him (amongst other things) that the Ombudsman had "received [a] complaint in the form of a protected disclosure", that the Ombudsman had decided to conduct an investigation and that the University was invited to make comments and/or submissions. The letter describes the subject matter of the complaint and the investigation. Document II: A copy of a letter from the University to the Ombudsman replying to the original of Document I. Document III: A copy of the submission made by the University which was enclosed with the original of Document II. Document IV: A copy of extracts from the Ombudsman's Report entitled: "Final Report - Report under Section 26 of the Ombudsman Act -University of New South Wales. Investigation concerning the conduct of the University in its consideration of a protected disclosure alleging maladministration within the Educational Testing Centre" 4 Mr Buckley also annexed a copy of the Executive Summary from the New South Wales Audit Office's publication entitled: "Performance Audit Report - University of New South Wales - Educational Testing Centre" Applicable legislation 5 Clause 6 of Schedule 1 of the FOI Act provides as follows: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 6 Clause 20 of Schedule 1 of the FOI Act relevantly provides: 20 Miscellaneous documents (1) A document is an exempt document if it contains matter the disclosure of which would disclose: … (d) matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994 7 A disclosure must meet certain requirements if it is to be regarded as a "protected disclosure" under the Protected Disclosures Act 1994 ("the PD Act"). A disclosure is protected if it satisfies the applicable requirements of Part 2 of the PD Act. The disclosure must be made voluntarily, by a public official, to an investigating authority such as the Ombudsman or a body such as the University. It must be about matters including corrupt conduct, maladministration or serious and substantial waste of public money. 8 Section 11 of the PD Act provides: 11 Disclosure to Ombudsman concerning maladministration (1) To be protected by this Act, a disclosure by a public official to the Ombudsman must: (a) be made in accordance with the Ombudsman Act 1974, and (b) be a disclosure of information that shows or tends to show that, in the exercise of a function relating to a matter of administration conferred or imposed on a public authority or another public official, the public authority or public official has engaged, is engaged or proposes to engage in conduct of a kind that amounts to maladministration. (2) For the purposes of this Act, conduct is of a kind that amounts to maladministration if it involves action or inaction of a serious nature that is: (a) contrary to law, or (b) unreasonable, unjust, oppressive or improperly discriminatory, or (c) based wholly or partly on improper motives. 9 The PD Act intends that the identity of individuals who make protected disclosures should remain confidential. Further, any information that could lead a person to ascertain the identity of the complainant should not be disclosed. Was there a "protected disclosure"? Unless the complaint with which the Ombudsman's Report was concerned was a "protected disclosure" the Submission would not be exempt under clause 20 of Schedule 1 of the FOI Act. That is because only documents which contain matter the disclosure of which would disclose matter "relating to" a protected disclosure are exempt under Clause 20(1)(d). 10 The complaint that was received by the Ombudsman is not in evidence. The University's position is that it has never seen the complaint and therefore cannot know that it was a protected disclosure under the PD Act. It relies on statements made by the Auditor General and the Ombudsman in the documents provided as annexures to Mr Buckley's statement which express the opinion that there was a protected disclosure as forming a basis for the inference that the complaint was a protected disclosure. 11 The Ombudsman's Report states in part: 1.1 As the complaint was in the form of a protected disclosure, pursuant to the confidentiality provisions of the Protected Disclosures Act the identity of the complainant is not disclosed. … 3.2 Prior to approaching this Office the complainant had also lodged a complaint with the NSW Audit Office (Audit Office). Pursuant to section 25 of the Protected Disclosures Act, the Audit Office referred details of the allegations to this Office on 17 January 2001, indicating that its initial assessment of the case suggested that there were issues that the Audit Office would also wish to pursue. 12 The New South Wales Audit Office's report stated in part: The audit originated as a result of a complaint received under the Protected Disclosures Act 1994. The complaint alleged mismanagement, waste of public funds, bullying, harassment, nepotism and cronyism within ETC. 13 Mr Singleton submits that the expression 'relating to a protected disclosure' should be given its widest possible meaning. The Tribunal should infer on the balance of probabilities that there was a protected disclosure. He says that the Tribunal can be satisfied that all the elements necessary to establish the existence of a protected disclosure have been met. It was a disclosure that was made voluntarily by a public official, to an investigating about matters including maladministration. 14 Mr McGuirk contends that the burden of establishing that the determination is justified lies on the University and it has not presented any evidence to discharge that burden. He argues that a complaint in the form of a protected disclosure is not the same as a protected disclosure. The Tribunal must make the finding that there was in fact a protected disclosure. 15 He relies on a copy of a Deed of Release entered by the complainant in which reference is not made to a protected disclosure but rather reference is made to the complainant having "raised a number disputes ("the disputes") with the University during [the complainant's] period of employment at the ETC" 16 Mr McGuirk does not concede that there was a protected disclosure. However, he asserts that even if there were a protected disclosure and the Submission contains matter the disclosure of which would disclose matter relating to a protected disclosure, the Tribunal could nevertheless order that the document be released in the public interest. Findings 17 In the absence of complaint that was made to the Ombudsman it is necessary that I draw an inference as to whether there was a protected disclosure from the available material. I have indicated above that there are elements that must be satisfied in order to establish that the complaint was a protected disclosure. I am satisfied that the material available to me allows that inference to be drawn. In my opinion it is probable that the complaint was a disclosure that was made voluntarily by a public official, to an investigating authority about matters that would tend to show conduct of a kind that amounts to maladministration. Accordingly I am satisfied that there was a protected disclosure. 18 I agree with Mr Singleton's submission that the expression 'relating to a protected disclosure' should be given its widest possible meaning. 19 I have considered the contents of the Submission and I am satisfied that its disclosure would disclose matter relating to a protected disclosure. Accordingly, it is my view that the Submission is an exempt document pursuant to Clause 20(1)(d) of Schedule 1 of the FOI Act. 20 The issue that remains is then whether the Tribunal has a general discretion to grant access to exempt documents. It is my view that the Tribunal has no such discretion: Neary v The Treasurer, New South Wales [2002] NSWADT 261. 21 Given this view, it is not necessary that I consider whether the Submission is exempt under clause 6 of Schedule 1 of the FOI Act. 22 It follows in my view that the University's determination not to provide Mr McGuirk with access to the document that he is seeking was the correct and preferable decision and should be affirmed. Order The University's determination not to provide Mr McGuirk with access to the document that he seeks is affirmed.