Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56

CITATION: Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56

DIVISION: General Division

APPLICANT PARTIES: Peter John Curtin RESPONDENT Vice-Chancellor, University of New South Wales

FILE NUMBER: 053137

HEARING DATES: 15/07/2005 & 7/09/2005

SUBMISSIONS CLOSED: 09/07/2005

DATE OF DECISION: 02/24/2006

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: access to documents - adequacy of search

MATTER FOR DECISION: Principal matter

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

Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 CASES CITED: B v Commissioner of Police [2000] NSWADT 168 Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104

APPLICANT In person REPRESENTATION: RESPONDENT M Toomey, Assistant University Solicitor, UNSW and D Osborn, Freedom of Information Officer, UNSW

ORDERS: 1. Decision under review is affirmed

REASONS FOR DECISION 1 This application, as filed with the Tribunal, sought review of a determination made by the respondent agency under the Freedom of Information Act 1989 (FOI Act). In the course of the planning meetings the applicant withdrew his application in so far as it contested the respondent agency's reliance on various exemptions to justify its refusal to give access to certain documents. However, he continued to press his concern that the search undertaken by the agency in response to his request was insufficient. The Tribunal held a hearing on 7 September 2005 was confined to the sufficiency of search issue. This decision deals with that issue. 2 Before continuing, I should note that in proceedings in another matter in the Tribunal during February 2006 a respondent agency has raised a jurisdictional objection to the Tribunal conducting an inquiry into sufficiency of search. The agency has contended that such a jurisdiction is not conferred on the Tribunal by the FOI Act. The hearing of argument is yet to occur. 3 In this case the parties accepted that the Tribunal did have jurisdiction. I will not revisit that question on this occasion. I will proceed in this decision on the assumption that the case-law establishing the existence in the Tribunal of such a jurisdiction is correct: the key case is Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. 4 In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 I noted: '50 Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. Here it was the officer in charge of the investigations, and an officer with authority to search Internal Affairs records. The applicant does not have inside access to the records system, and is left as occurred here to ask questions that might demonstrate some weakness in what was done. Here one weakness was shown, that is that the officers did not have the details he gave on 29 May 2003 when they undertook their further inquiries. 51 Ultimately the question is: 'Whether the conclusion [the agency] reached, that the agency did not hold any documents relating to the applicant other than the ones released … was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review': B v Commissioner of Police [2000] NSWADT 168 at [13]. 52 To similar effect, the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464: '18. It is my view that in an external review application involving sufficiency of search issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined … the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 22. With regard to the second question set out in paragraph 19 above, I agree with the view expressed by the Commonwealth Administrative Appeals Tribunal, in its decision on a sufficiency of search case in Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163 at p.167, that: "the adequacy of the search effort made to locate the document should be judged by having regard to what was reasonable in the circumstances."' 53 In Beesley v Commissioner of Police [2000] NSWADT 52 at [19] the Tribunal said: 'All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman.'' 5 In an earlier decision relating to another application by the applicant, I set out the administrative background which has stimulated the applicant to make various access applications: Curtin v Vice-Chancellor, University of New South Wales [2005] NSWADT 104. I will repeat here the key paragraphs and note the criticisms that the applicant has made of this account in the course of the present proceedings: '3 He [the applicant] worked for many years in a business entity of the University called 'The Educational Testing Centre' (ETC) ultimately holding a senior position (Position Title: Manager Planning and Budget & Services Manager). The ETC designed examinations and schools competitions for use by clients such as State Education Departments and tertiary institutions. The ETC's operations were the subject of a management review in 2002 and 2003 by the University, leading to its restructure. The applicant actively questioned the probity and soundness of the decision-making process leading to the restructure, and in particular disputed the conduct of the General Manager of the ETC, Dr Alan Bowen-James. The ETC is a division of a company, NewSouth Global (NSG), the commercial arm of the University and a controlled entity of the University. The restructure of the ETC proceeded, and, after some consideration, the applicant decided to accept a termination package. 4 He made some complaints in a manner and form intended to obtain the benefit of the protected disclosures legislation (the Protected Disclosures Act 1994). In pressing his claims in relation to the restructure, and his concerns over what he saw as corrupt conduct in the decision-making process, he regularly dealt with the Equity and Diversity Unit of the administration of the University. This Unit deals with issues to do with the treatment of staff and employees of the University.' 6 As to paragraph 3 of the above, the applicant wishes to have noted that he worked for UNSW/ETC for 6 years having been an independent appointment to a senior position in 1998 (Operations Manager); and that there were restructures of ETC in 2001, 2002 and 2003. 7 As to paragraph 4 of the above, he states: 'Contact with the Equity and Diversity Unit of NSW was minimal (once in 6 years) and the contact was largely as a store of relevant documents. See 'ETC Between the Audits – A Study in Tyranny' 13 January 2003 to Internal Audit, Equity and Diversity and the Vice Chancellor (PC01) for a summary of the issues existing to that time. The FOI application for E & D records was one of a series beginning with the matter currently under review.' 8 The applicant also criticises some other statements of a factual kind elsewhere in the previous decision. He has indicated that he does not challenge the judgment ultimately made as to the law. 9 In response, I simply note that the purpose of these paragraphs was to provide a general background only, so as to provide a context for understanding the particulars of the application. In my view the material remains broadly accurate, even though many events that the applicant sees as significant to a full understanding of his dispute with the respondent over the circumstances of the restructure of ETC and the loss of his job have not been mentioned. 10 In this instance the application for access was first made by email on 15 March 2004 and expressed in the following terms: 'the documents I am seeking access to, or copies of, are personal and include all information concerning myself exchanged between Rory Hume, John Ingleson, David Ward, Kerry Hudson, Alan Bowen-James, Alex Roche and Rob Wendon or other ETC/NSG/UNSW employees or consultants, in the period 2001 until the present. … The sort of documents I have in mind include the secret files established to store documents in relation to my termination in Nov 2003. Typical would be emails between Alan Bowen-James and John Ingleson between 22 Sep 03 and 10 Nov 03 in relation to a misconduct allegation against me. I am seeking particularly prejudicial information or opinions which would broadly relate to my performance and for example my health.' 11 The persons mentioned are senior administrators of the respondent, the University of New South Wales, Hume being the Vice-Chancellor at the time and Ingleson the Deputy Vice-Chancellor, while several of the others were associated with ETC, in particular Bowen-James, the general manager in the period of concern to the applicant. 12 The Revised Request: After consultation by the respondent's FOI officer with the applicant, the request was revised, and confirmed by the respondent by email in the following terms on 26 March 2004: 'Following our phone discussion, I have attempted below to revise the scope of your FOI application to the following five points: 1. The date range for the material in which you are interested is from the 6 months to November 2003. 2. You are seeking correspondence received or sent by Professor John Ingleson concerning yourself during this period. 3. You are seeking documents from the office of the General Manager of ETC concerning yourself during this period. 4. You are seeking correspondence on the ETC mail server in which you are mentioned during this period. 5. You are seeking documents from this period, on the personal files of Ms Kerry Hudson [sic] and Mr Alan Bowen-James regarding discpline [sic] of Ms Hudson [sic] and Mr Bowen-James.' 13 The applicant identifies the seven documents that he says should have been but were not included in the respondent's response to his request (as revised) as being (the applicant's text is repeated exactly): 1. 20 November 2003 Letter to Peter Curtin referring 29 October letter to the NSG Board 2. 4 September 2003 – Letter to NSG Board and UNSW Council by mail and email 3. 10 September 2003 – Reply to Dr Bowen-James publishing letter email (confirmed by E & D FOI) 4. 22 September 2003 – email on misconduct issue (Roche) 5. 26 September 2003 – email 'Drowning Not Waving' (PC13) 6. 29 October 2003 – letter with reply No 3 to restructure attached email and certified mail (see PC 14) 7. (3 November receives Ingleson memo on Peter Curtin issues) 14 In her affidavit and evidence in these proceedings, the respondent's FOI officer, Ms Deborah Osborn, Head, Policy Management Unit and Freedom of Information Officer at UNSW referred in detail to the searches and inquiries she undertook in order to meet the terms of the request. She referred to her dissatisfaction with some of the responses that she received, and the personal efforts she then made to examine storage locations which she felt might contain documents relevant to the request. She physically checked four folders labelled 'ETC' in the office of Simon Watson, Executive Officer to Professor Ingleson. She discovered that all the documents fell outside the period covered by the request (the 6 months to November 2003). She asked Ms Bartlett, the Professor's secretary, to check the computer hard drive, and as a result found some letters relevant to the request. She also located further relevant documents after contacting Mr David Ward, Manager, Industrial Relations Unit. 15 Ms Osborn proceeded to prepare a schedule of documents and made the decision on 30 April 2004 to release 28 of the 39 documents identified. Subsequently there was an internal review and an external review by the Ombudsman. In response to enquiries by the Ombudsman further searches were undertaken. These occurred in October 2004. She describes in her affidavit the use of various search criteria. As a result of these searches 11 additional documents were located. This resulted in the full release of 8 of those documents and the partial release of 3 others. She then referred to the making by the respondent of a comprehensive new, revised determination in line with the recommendation of the Ombudsman's office. She referred to the positive comments made by the Ombudsman's officer (Mr David Watson) relating to the respondent's efforts to locate relevant documents, and the decision of the Ombudsman not to take any further action on the applicant's complaint that there had not been sufficient searches. 16 In his submissions, the applicant commences by giving an account, from his perspective, of his relationship to the respondent on a range of issues in recent years. He refers to his dissatisfaction with a number of statements in a letter to him from the Vice-Chancellor (Wyatt R Hume) dated 4 March 2004, the essence of which was that the Vice-Chancellor did not consider it useful to investigate the applicant's many complaints relating to the conduct of Dr Bowen-James, as the latter had resigned from NSG in November 2003 and the applicant's employment had also ended. The submissions then go on to make a number of general criticisms of the respondent's record-keeping procedures. The applicant refers to the number of documents that have been located as a result of further searches in the course of this matter. 17 I do not see there is anything to be gained in disposing with this application by me retracing the history of this matter prior to it reaching the Tribunal. 18 The task for me is to reach a conclusion, on the basis of the material now before me, as to the sufficiency of the search. Can it be said, fairly, that there are documents in existence relevant to this request which have not been located by the respondent? What I have before me is a deep-seated distrust of the respondent on the part of the applicant; instances of further documents being located after additional searches; and the applicant's concern that there was no search of Professor Ingleson's laptop computer. 19 At hearing Ms Osborn said that she had been guided by the revised request. She said that the applicant was mistaken in his view that all seven of the documents he listed had not been disclosed. As to each of the documents she said: 1. This document was in her view outside the scope of the application, and she had understood him, in any event, not to be seeking documents he already had in his possession. 2. This had been provided in the original determination in this matter, Document 14. 3. This document had been provided to him in connection with the application, described as the EDU application, that was the subject of the earlier decision to which I referred earlier in these reasons. 4. As for 2, Document 16. 5. As for 2 and 4, Document 23. 6. In her view, this was outside the scope of the application. 7. As for 6. 20 She said that she made the decision as to whether particular documents were caught by the request on the basis of the substance of the documents scrutinised, in particular having regard to whether they related to the applicant's substantive position, or contained complaints made about him or to him. My understanding of the applicant's case has been that he has no objection to such an approach, in principle; he accepts that innocuous passing references to his name are not what he is seeking. Ms Osborn, as I see it, was simply seeking to take an economical, focused approach to her task. 21 She said that the extra documents she found as a result of the Ombudsman's recommendation came off the email drives in Professor Ingleson's office. 22 As to the laptop issue, she said that her practice has been not to search personal laptops or personal email addresses; she has seen it as only appropriate for searches to be conducted in relation to official equipment. This seems to me, on its face, to be the proper approach. As I see it, were an officer to use personal equipment to record official business, and thereby secrete from their employer (and by extension from third parties with a relevant interest, such as FOI requesters) official documents, disciplinary and security issues arise – ones not capable of being addressed in the context of an FOI search. Ms Osborn explained that she had directed her enquiries to the executive officers attached to senior officers of the University, such as Professor Ingleson, as in her experience it would be most unusual for them to be sending any emails in an official capacity of which their executive officer would not be aware. The applicant did not challenge any of this evidence. 23 I am satisfied by Ms Osborn's evidence. I am satisfied that the standards set out in cases such as Patsalis have been met. Order 1. Decision under review affirmed.