CITATION: Bennett v Vice Chancellor, Unviersity of New England [2002] NSWADT 175 DIVISION: General Division APPLICANT PARTIES: Dr William Robinson Bennett RESPONDENT Vice Chancellor, University of New England FILE NUMBER: 013184 HEARING DATES: 20/12/01 SUBMISSIONS CLOSED: 02/01/2002 DATE OF DECISION: 09/20/2002 BEFORE: Britton A - Judicial Member APPLICATION: access to documents - confidential material - access to documents - legal professional privilege - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Evidence Act 1995 Freedom of Information Act 1989 Kay v Commissioner of Corrective Services [2000] NSWADT 67 Esso v Commissioner of Taxation (1999) 201 CLR 49 CASES CITED: Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Saltman Engineering (1948) 65 RPC 203 Re maher and Attorney-General's Department (No 2) (1986) 4 AAR 266 Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 APPLICANT REPRESENTATION: In person RESPONDENT E Frizell, barrister ORDERS: 1. The decision under review is affirmed 1 The applicant in this matter, Dr William Bennett, was a Ph.D student at the University of New England ("the university"). His doctoral thesis was originally submitted in 1983 and was ultimately rejected in 1990. Professor Klaus Rohde was his supervisor for much of time he was a Ph.D candidate. On 29 July 1997, after a series of inquiries, however, the University Council ("the Council") resolved to award him a doctorate. 2 Dr Bennett has made a previous successful application under the Freedom of Information Act (NSW) 1989 ("the FOIA") to this Tribunal. This application is a request for review of a decision of the university following its rejection of his application for disclosure of certain information and its internal review of the primary decision to refuse access to the information in question. 3 The issue for determination is whether the university, in refusing Dr Bennett access to these documents, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act"). 4 The Tribunal has jurisdiction to review this decision pursuant to s 38 of the Tribunal Act and s 53 of the Act. Background 5 In about December 1990, Dr Bennett commenced an action in the District Court against the university, an appeal pursuant to the FOIA. At that stage the Administrative Decisions Tribunal had not yet been created and the Ombudsman and the District Court considered applications for review and appeals under the Act. Dr Bennett was successful in that action in having the university's records concerning him amended. The record in question was a handwritten note made by Professor Rohde concerning Dr Bennett's Ph.D thesis and candidature. Dunford DCJ (as he then was) ordered the deletion of the handwritten note from the university's records. 6 In July 1992, following that success, Dr Bennett commenced a defamation action against the university and Professor Rohde in the District Court. That action was defended by the university. 7 On 10 May 2001, Dr Bennett applied to the university for certain information, which he believed it held in its records. In the following terms, he sought access to the following documents or parts of documents referred to in a letter dated 5 August 1993 from Professor Klaus Rohde to Professor RHT Smith, the university's Vice-Chancellor: 1. "The highlighted document mentioned in the text (para 3, bracketed). 2. Could you please confirm the following notes on the enclosed document. The document is readable, but the notes are, in places, indistinct: (a) top of docum ent: ST/P HA20-7 -5 AUG 1993 (b) next note down: Confidential (Space) File (c) next note, opposite the VC's address: indistinct (d) bottom of page: ZOOLOGY 3. Could you please confirm that the "Piggot Report" supplied in consequence of my last Freedom of Information application is the document in its entirety? When I spoke to Professor Magner on the matter, she said that she contributed the legal aspects of the Report. Her name is mentioned in the Report, but I can find nothing written by her." 8 The "text" referred to in Dr Bennett's application was identified by Mr Lloyd Thomson, the university's legal officer as a memorandum written by Professor Klaus Rohde to Professor T. Field dated 2 June 1993. The university claimed an exemption in respect of that material on the basis, first, of legal professional privilege (pursuant to cl.10 of Schedule of the FOIA) and, secondly, on the ground that it contained confidential material exempted pursuant to cl.13 of Schedule 1. 9 The primary decision-maker's reasons for rejecting Dr Bennett's application were as follows: Legal professional privilege is claimed in relation to the memo because it was a communication that occurred between the University (that is, as the client) and a lawyer which: (a) was confidential in nature at the time of its creation and has not been disclosed to parties other than the University and the lawyer; and (b) was brought into existence for the dominant purpose of: (i) enabling the University to obtain, or the lawyer to give, legal advice; and/or (ii) for use in litigation which was either pending or within the reasonable contemplation of the University. At the time of its creation, the memo was clearly identified and marked as 'confidential' by Professor Rhode and no copy of the memo has been disclosed to parties other than the University and the lawyer to the fullest possible extent of my knowledge. The memo was drafted in relation to the preparation of a defence to litigation on foot at the time of its creation and provided to a lawyer who was a solicitor in private practice presumably holding a current Practising Certificate. The dominant purpose for which the memo was drafted was to obtain legal advice in relation to the framing of that defence (see Esso Australia Resources Limited v The Commissioner of Taxation [ 1999] HCA 67), as confirmed by Professor Rohde. It seems to me quite clear from the face of the memo that the litigation in question was pending or within the reasonable contemplation of Professor Rohde. Having taken the view that the memo is exempt from release because it is technically subject to legal professional privilege, the following reasons inform my decision not to release the memo: 1 . Professor Rohde has expressed the view that he does not want the memo released because he considers that it is and should remain confidential. 2. From a public interest point of view, I cannot see how staff members of the University will conscientiously perform their duties if they feel that confidential documents they write will later become freely made available to the very person the subject of the documents under Freedom of Information applications. 10 In response to paragraph 2 of Dr Bennett's request, the university clarified the parts which were difficult for him to read. In relation to paragraph 3, the university confirmed that the "Piggott report" had been supplied in its entirety as it appeared on the university records. The university stated that it was unable to answer Dr Bennett's question concerning any contribution made by Professor Magner to that report. 11 On 28 June 2001, Dr Bennett then sought an internal review of this initial determination. In essence, his arguments were, first, that legal professional privilege had been waived because the document had been disclosed to persons other than the party (the university) for whom the document had been created and its legal advisers and, second, that the document, although marked "confidential" on its face, had not in fact been created or kept confidentially, and that, in any event, merely to mark a document "confidential" does not, of itself, exempt a document under cl.13 of Schedule 1. 12 On 10 July 2001, Mr Graeme Dennehy, the university's Executive Director (Business & Administration), upheld the initial determination on the same grounds as the determination had been made in the first instance. Mr Dennehy commented: The document that you seek under this review was written primarily to build a defence case, and hence I consider that the exemption under Clause 10(1) applies. Contrary to your suggestion that the document had such broad circulation that this exemption would not apply, I understand that its circulation was severely restricted and only provided to those people immediately involved in the defence case. I have also determined that the document to which you seek access is exempt under Clause 13(a), Schedule 1 of the FOI Act, which states: A document is an exempt document; if it contains matter the disclosure of which would found an action for breach of confidence. The document is clearly marked "Confidential", in type print, and, as stated above, was sent to a closely restricted number of people. Advice has been sought from the author of the document and he has indicated that the document was written on the basis that it remain confidential. I also consider that your argument, that the University's procedures for maintaining confidentiality of records has been remiss in the past, is no basis for determining that access should be provided to documents determined to be exempt under the Freedom of Information Act. The University has improved its records management practices over the years and will continue to do so to ensure the security of documents which it holds and that it meets legislative requirements in this area. 13 On 25 July 2001, Dr Bennett then applied for review of Mr Dennehy's decision to this Tribunal. Grounds of the application for review 14 Dr Bennett applied for a review of Mr Dennehy's decision on the grounds that incorrect reasons for the determination had been given by him. With his application for review, he provided a copy of his comments to Mr Dennehy, the essence of which is summarised above. These are the grounds on which the application now comes before the Tribunal. The application remains opposed by the university. Relevant legislation 15 Under s 16 of the FOIA a person has a right to apply for access to an agency's documents in accordance with the Act. The agency must determine whether or not the person will be granted the access sought. It may do so only on grounds specified in the Act. Section 61 of the Act places the onus of proving that a determination to refuse access to documents on the agency which makes that determination. One ground on which the agency may refuse access to a document is that the document is exempt pursuant to s 25 of the Act. An exempt document is defined by s 6 to include a document referred to in Schedule 1 of the Act. The agency has a discretion to exercise under s 25. It "may" provide access to the document. It is not bound to refuse access if a document is exempt. The objects of the FOIA, however, make it clear that the rights of the public to obtain access to government records, and to correct records held about them, are to be extended as far as is reasonably possible. (See s 5). Nonetheless, if a document is found to be exempt, the agency concerned must find "special or overriding circumstances or interests" should it wish to release the information: Kay v Commissioner of Corrective Services [2000] NSWADT 67. 16 Here, as we have already noted, the university relies on two clauses of Schedule 1. Clause 10 states that a document is exempt "if it contains matter which would be privileged from production in legal proceedings on the ground of legal professional privilege." We will return to further refine the meaning of "legal professional privilege". 17 Clause 13 is broader in scope. It provides that a document is exempt, first, " if it contains matter the disclosure of which would found an action for breach of confidence" or, second., "if it contains matter the disclosure of which would otherwise disclose information obtained in confidence and [which] could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and [which] would, on balance, be contrary to the public interest." Legal Professional Privilege 18 The principles of legal professional privilege are well-known. Section 118 of the Evidence Act 1995 creates a privilege for confidential documents prepared for the dominant purpose of a lawyer providing legal advice. Insofar as documents are concerned, it is the "contents of a confidential document (whether delivered or not) prepared by the client or a lawyer" which may be privileged. The Evidence Act defines a confidential document to be a document which, when it was prepared, was prepared in circumstances expressly or impliedly requiring either the person who prepared it or the recipient not to disclose its contents. Section 118 does not protect a document which arises as a result of a communication between the client or the client's lawyer and a third party, even if the communication is for the dominant purpose of providing legal advice. 19 Section 119 of the Evidence Act creates a privilege in respect of confidential documents created by a lawyer or his or her client in respect of litigation anticipated, pending or on foot. Here, the document in question must have been prepared with the dominant purpose of the client being provided with legal services in respect of the litigation in question. Under this section, however, confidential communications between a lawyer acting for a client and a third party are protected, provided that the dominant purpose of the communication is for the provision of legal services to the client in respect of the litigation in question. So, for example, a lawyer's notes of a conference with a potential witness would ordinarily be privileged documents under this rubric. So, too, would be a report provided at the request of the lawyer in anticipation of the litigation by a third party. 20 The Evidence Act largely overlaps the common law position on legal professional privilege. In Esso v Commissioner of Taxation (1999) 201 CLR 49, the High Court held that the test to be applied was the "dominant purpose" test. If the common law, rather than the Evidence Act, is decisive in these proceedings, the difference appears to me to be immaterial in practice. 21 The university contends that the document sought by Dr Bennett was prepared in anticipation of being used by the university in relation to legal proceedings taken against it by Dr Bennett. It was, it says, provided to its legal advisers and agents within the university on that basis only. 22 Legal professional privilege over a confidential document will be waived in certain circumstances. A knowing and voluntary disclosure of the contents of the document by the party to someone other than his or her or its lawyer or another party with whom the client has a common interest in the proceedings or an employee or agent of the client or the lawyer when those agents are not authorised to disclose the contents of the document will ordinarily result in a court finding that privilege has been waived by the client. 23 It is unnecessary here to explore other ways in which privilege may be waived as we understand that Dr Bennett relies on an assertion that the university allowed widespread publication of the document over which it now claims legal professional privilege. If his assertion is borne out by evidence, it would follow that the university had not maintained the document within the scope of the privilege. Confidentiality 24 The principles in relation to cl.13 of Schedule 1 have also been considered many times. 25 The rationale for the exemption of confidential documents in government or government agency records is clear. In broad terms, it is to protect the flow of confidential information to government and its agencies. If easy access to such information was to be granted, it is reasonable to assume that persons, such as "whistle-blowers", police informers and others who may fear retribution if their identities were to be exposed, would be less likely to provide information upon which government relies to protect the community. The flow of information to be protected may also run within governmental organisations or between them. 26 If a disclosure of the contents of a document would create a basis for an action for breach of confidence against the keeper of the record, the document is defined by cl.13(a) as an exempt document. An action for breach of confidence requires three fundamental elements. In Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 Megarry J said that, absent an express or implied contractual duty of confidence, a person may nonetheless bring an equitable action for breach of confidence if: The information concerned has "the necessary quality of confidence about it", which will usually be satisfied by proving that the information is not commonly or publicly known: Saltman Engineering (1948) 65 RPC 203 at 215 per Lord Greene MR; The information was conveyed in circumstances importing an obligation of confidentiality; There is unauthorised use of the information by the recipient of it to the detriment of the party communicating it. 27 In Re Maher and Attorney-General's Department (No 2) (1986) 4 AAR 266 it was held that unauthorised disclosure, whether or not there is a prejudice to the confidant, is sufficient. 28 Here the university argues that to grant access to Professor Rohde's memorandum would provide a basis for an action by the professor against the university. 29 A confidential document will also be exempt pursuant to cl 13(b) if confidential information would be disclosed, and that disclosure might reasonably be expected to prejudice further supply of such information, and, in overall terms, it would be against the public interest to disclose the material. The agency seeking exemption must prove each of these elements. It is conceivable, otherwise, that agencies might claim exemption in respect of information supplied on a confidential basis but in which there is no overall public interest in keeping confidential. The case for exemption must be made ultimately on public interest grounds. Evidence 30 Dr Bennett gave evidence on his own behalf. In summary, in relation to the question of legal professional privilege, his evidence was that content of the document he sought had been disseminated. It was possible to deduce the contents of the memorandum from other documents and in particular Professor Rohde's letter of 5 August 1993. He also noted that the memorandum had been addressed to Professor Field. 31 Secondly, he questioned the confidentiality and security of the document. He gave evidence of documents relating to him, in particular the letter of 5 August 1993, going missing from the university records. No satisfactory explanation was received during the hearing or submissions as to how or by whom unauthorised access was apparently gained to purportedly confidential university records. 32 Evidence was given for the university by Professor Rohde. Much of the evidence which he gave has already been summarised above. He gave evidence that he had created the memorandum to Professor Field in June 1993 "for the dominant purpose of enabling the University's lawyer to prepare a defence to the 1992 [defamation] proceedings." Professor Field, he said, had been the person at the university who was dealing with Dr Bennett's court case. He said that he had not at that stage spoken to the lawyer who had sent him the memorandum. He said that he had understood that the information contained in the memorandum would be treated on a "confidential" basis by the university and would not be disclosed by the university except to it legal representatives. 33 He said that at the time he had forwarded the memorandum only to Professor Field, the solicitor and the Dean of the Faculty. He gave evidence that he had also provided a copy of the memorandum to his solicitor, Ms Ford, in respect of this application by Dr Bennett. 34 He also said that, to the best of his knowledge, the memorandum remained confidential in the records of the university and had been viewed only by the university's legal officer, the Records Management Office of the university, the Dean of the Faculty of the Sciences, the secretary of the Zoology department, Ms Sandy Higgins, who had typed it, and Professor Field. 35 Professor Rohde said that he had written the letter of 5 August 1993, in which he had mentioned the memorandum to Professor Field, hoping that it might assist a quick resolution of the defamation action. He said that he had had no intention of waiving legal professional privilege when he referred to the memorandum. 36 The document sought by Dr Bennett, Professor Rohde's memorandum to Professor Field, was placed before the Tribunal and I have examined it. It would obviously be inappropriate to discuss the content of the document in any detail at this stage but I note that the document is headed "Confidential", is addressed to the Pro-Vice Chancellor, that it commences "Enclosed my points for the defence of the case against W. Bennett. This is only a draft and a final version should be written after we have been approached by our solicitor" and that it was apparently copied to Mr Paul Reidy, Solicitor and the Dean of the Faculty of the Sciences, UNE by Professor Rohde. 37 The letter of 5 August 1993 from Professor Rohde to Professor Smith was also in evidence. It is clear from its content that the letter was not written with a dominant purpose of being used in litigation or for such purposes but because Professor Rohde felt aggrieved by what he perceived to be the university's failure to support him (and perhaps other academic staff) and to protect his professional reputation. That letter made a number of references to the memorandum to Professor Field. In each case, to corroborate or support a point being made by him, Professor Rohde invited Professor Smith to refer to the memorandum to Professor Field. Findings and Conclusions (i) Legal Professional Privilege 38 On the evidence available, I see no reason to doubt that the memorandum from Professor Rohde to Professor Field was created in June 1993 with the dominant purpose of being used in the preparation of the defence against Dr Bennett's defamation action. It is clear from the way the document commences that this is the reason why it was written. Professor Field, as the university's Pro-Vice Chancellor, was clearly in one of the most senior executive positions in the university. There is no evidence to suggest that he did not have oversight of the university's response to Dr Bennett's suit. In my view, it was entirely appropriate for him to have received the document in such circumstances, and that this entailed no waiver of legal professional privilege. 39 The question to be determined, however, is whether privilege was waived subsequently and, in particular, by the publication of Professor Rohde's letter of 5 August 1993. 40 The university contends that the letter of 5 August 1993 did not result in any waiver of the privilege. It argues that the circumstances in which the memorandum was released to certain members of the university's staff are similar to those in Kay v Commissioner of Corrective Services. In that case, this Tribunal held that there had been no waiver of privilege. 41 The facts in Kay were, in summary, that Mr Kay, a prison officer, had a personal website on the Internet. Some material on the website was thought by certain officers in the Department to possibly constitute a breach of the Department's Code of Conduct for officers. Two investigations were carried out in the course of which various memoranda were sent to the Department's legal officers. Mr Kay sought access to those documents and a claim for legal professional privilege exemption was made by the Department. The Tribunal held that the memoranda were prepared for the dominant purpose of seeking legal advice and upheld the Department's claim. 42 The facts in this case are somewhat more complex. When Professor Rohde wrote to Professor Smith, he, Dr Rohde was the second defendant in Dr Bennett's defamation action, the university being the first defendant. Provided that he did not waive his privilege, he, as well as the university, was entitled to have the memorandum to Professor Field kept confidential. When Professor Rohde wrote to Professor Smith he was not doing so for the dominant purpose of the litigation but for an entirely different reason: he wanted the university to do something for him, his professional reputation and the reputation of his department. He was complaining of having been let down by university. 43 While this letter would probably not have been written but for the commencement of Dr Bennett's suit, it was not directly related to the litigation at all. It was certainly not part of the process of gathering evidence or material in anticipation of the court case, nor of seeking legal advice. It was predominantly concerned with an administrative aspect of the university's internal procedures and operations. It appears to me that Professor Rohde was writing to Professor Smith not as the embodiment of the first defendant in respect of Dr Bennett's litigation – it would have been more appropriate in that case to have written to Professor Field who was handling the litigation for the university – but as the academic head and chief executive of the institution. 44 In short, Professor Smith was not, in my opinion, a party to the litigation but a third party to whom Professor Rohde was writing about the case and about certain aspects of the case. It is unclear whether Professor Rohde annexed a copy of the memorandum to the letter of 5 August but it seems more likely than not that he did so as there is direct reference to the material in it to which he wished to draw Professor Smith's attention. 45 The references in the letter of 5 August 1993 go beyond a mere acknowledgment of the existence of the memorandum to Professor Field. Dr Bennett asserts that the substance of the contents of the memorandum were effectively disclosed in the letter to Professor Smith and that therefore there was a knowing and voluntary disclosure of the privileged material. 46 Having had the opportunity to examine and compare the letter of 5 August 1993 and the memorandum, in my view there was at most a very limited disclosure to Professor Smith of the material contained in the June 1993 memorandum. The memorandum deals with, or raises, tactical and other issues and purports to summarise evidence which might be used to raise a defence against Dr Bennett's claim of defamation. In my opinion, there was no material disclosure of the substance of the memorandum by Professor Rohde to Professor Smith in the letter itself, but it seems evident that Professor Rohde voluntarily and knowingly disclosed the contents of the memorandum by supplying a copy of it to Professor Smith. 47 In that case, it seems to me that Professor Rohde probably waived his own privilege in the document, but he was not acting on the university's behalf as its authorised agent. He was complaining to the Vice Chancellor about the university on behalf of his own interests. Odd as this statement may seem, given that the university's Vice Chancellor was the recipient of the information, he was not authorised by the university to make the disclosure on its behalf. In the circumstances, it does not seem to me that the Professor Rohde was in a position to waive the university's privilege in the information contained in the memorandum and there is nothing to indicate that the university itself waived its own privilege. 48 In my opinion, the document is therefore exempt pursuant to cl.10 of Schedule 1. Confidentiality 49 In case I am wrong on the privilege point, I will now consider the second ground relied on by the university: confidentiality. 50 Notwithstanding Dr Bennett's suspicions that Professor Rohde may have added the word "confidential" to the top of the memorandum, it seems to me to be an unlikely thing for him to have done. On the face of it, the document was prepared on a confidential basis. Even without the heading "Confidential", the very nature of the document – one prepared for the defence of a court case – suggests that it was a document produced in confidence and expected to be kept confidential. 51 I do not consider that a finding of fact that the document was probably disseminated to the Vice Chancellor of the university as well as to those persons nominated by Professor Rohde alters the fact that this was a confidential document. As the head of the institution, Professor Smith probably had as much right if not a greater right of access to the document than virtually anyone else at the university. 52 I think therefore that the first element of a breach of confidence action is present here. 53 Secondly, it seems to me that there can be little doubt that the information was conveyed in circumstances in which there was an implied obligation laid upon Professor Field to keep the contents of the memorandum confidential at least in the sense that access to it would be closely circumscribed within and without the university. The fact that the material concerns litigation, that the memorandum was headed "confidential" and that it was given only a very small circulation by Professor Rohde are all powerful evidence of the fact that there was an obligation of confidentiality involved in the transaction. 54 Thirdly, Professor Rohde has not authorised the university to release of the information to Dr Bennett. It is difficult to assess whether the release of the information would involve any material prejudice to Professor Rohde but, given the history of bad relations between Dr Bennett and Professor Rohde, it does not seem likely that it would be followed by a heart-warming reconciliation. 55 Dr Bennett laid much emphasis on the fact that the records which the university are confidential were not properly secured. There seems to be little doubt that some documents or appendices to documents have gone missing. It is impossible for this Tribunal to determine how that happened, when it happened and by whom the documents were taken. The university contends that this evidence is irrelevant to the determination of the issue. It argues that the fact that the university may not have adequately secured the confidential records does not alter the fact that they remain confidential. 56 I agree with the university's argument. This is not a case in which the document in question has been stolen from the university's files and broadcast, thus destroying the confidentiality of the contents of the documents. No one has been able to explain who has the missing documents or who took them or for what purpose, but it is reasonably clear that there has not been any publicity given to them otherwise Dr Bennett would presumably not need to make this application. I do not think that the confidential nature of the document has been compromised by the insecure record keeping on the part of the university. 57 In my opinion, the elements of cl.13(a) are made out by the university and the document is exempt on that basis. 58 It is argued by the university that the document is also exempt pursuant to cl.13(b) because, in summary, to fail to protect confidential academic commentary would have what has been called a "chilling effect": academics would be reluctant to express their honest and independent opinions on significant matters within the university if students and others could gain access to the documents. Quite frankly, I have greater confidence in the Australian academic community than that. In any event, there is also a significant public interest in enabling the subjects of government and agency records to correct those records if they are incorrect. I am not persuaded that the university has established on the balance of probabilities all the elements of cl.13(b) and therefore am not satisfied that the document is exempt on that basis. 59 I am also not persuaded that there are the special circumstances which would give rise to the exercise of a discretion overriding the university's claim for exemption from disclosure of the document. I therefore affirm the university's decision. 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.