Chen v University of New South Wales (No. 2) [2009] NSWADT 99

CITATION: Chen v University of New South Wales (No. 2) [2009] NSWADT 99

DIVISION: General Division

APPLICANT Juchuan Chen PARTIES: RESPONDENT University of New South Wales

FILE NUMBER: 053403

HEARING DATES: 20 April 2009

SUBMISSIONS CLOSED: 20 April 2009

DATE OF DECISION: 7 May 2009

BEFORE: Wilson R - Judicial Member

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

APPLICANT In person REPRESENTATION: RESPONDENT P Singleton, barrister

1.The respondent is directed to advise the makers of the protected disclosures and the makers of the confidential expert reports of the current position of these proceedings in the Tribunal and to advise them that they have leave to appear at the planning meeting listed for 30.06.09 at 02:00 pm and, should they wish to do so, make application to intervene and be joined as parties respondent in the proceedings. ORDERS: 2.The respondent is directed to serve a copy of these reasons upon the persons so advised. 3.The parties are granted leave to file and serve any additional evidence they consider relevant on or before 24.06.09, provided that the respondent need not serve upon the applicant any evidence that it wishes to keep confidential by reason that such evidence would name the relevant makers of the protected disclosures or the relevant makers of the expert reports.

REASONS FOR DECISION 1 The applicant has commenced these proceedings pursuant to the provisions of the Freedom of Information Act 1989 (NSW) seeking a review of a decision by the respondent refusing access to certain documents sought by the applicant under that legislation. The applicant's exhibits adduced in the proceedings have been marked with an "A" prefix and an identifying number. The respondent's exhibits have been marked with an "R" prefix and number (indicating that copies have been given to the applicant) or with a "C" prefix and number (indicating that they are confidential at this stage and that copies thereof have not been provided to the applicant). 2 At an earlier stage it was agreed between the parties that it would be appropriate to proceed by way of an initial determination by the Tribunal as to whether the documents, to which access is sought and over which exemption from disclosure is claimed, are, or are not, exempt documents within the ambit of clause 20(1)(d) of Schedule 1 to the Freedom of Information Act 1989 (NSW). The essential basis for this agreement was that it would facilitate the respondent's presentation of its case in relation to a second exemption that it wishes to rely upon and would also facilitate its adducing of evidence relevant to the Tribunal's discretionary power to grant access to even exempt documents, should the circumstances so warrant. The Tribunal acquiesced in this approach as there was much practical sense in following the course proposed, given the large volume of documentation involved. Consequently, after hearing argument, the Tribunal determined that the documents in issue related to protected disclosures under the Protected Disclosures Act 1994 and therefore they were exempt documents. Following this determination the proceedings then came on for further hearing on 20.04.09 for the purpose of hearing submissions in relation to the Tribunal's discretionary power to grant access to documents even though they be exempt. 3 Broadly speaking, there is much common ground between the parties as to how the several documents in question came into existence and how they were subsequently dealt with during the course of a series of investigations undertaken by the respondent. The documents under review in these proceedings are identified in exhibit R1, the schedule of exempt documents, and they are dealt with in the evidence of Ms Deborah Gibson, a senior employee of the respondent. They appear as confidential exhibits to Ms. Gibson's statements of evidence (exhibits R2 and R3). 4 Briefly stated, the circumstances are as follows. Starting in about September 2001, a number of disclosures were made in relation to the conduct of a Professor of Medicine employed by the respondent University at a School or facility which, although off campus, was part of the Faculty of Medicine. This is common ground. It was argued that the persons who made the disclosures were either employees of the University or of a statutory body established under the Health Services Act 1997, or were employees of both (respondent's submissions 16.08.07 paragraphs 5 and 6). The type of information revealed by these disclosures is quite varied, as is the way in which the disclosures were made, but they do at least contain allegations that could well suggest corruption, maladministration and waste. These disclosures were followed by enquiry and report. Following this report a series of "reviews" were conducted into the allegations contained in the disclosures and, as matters progressed, into the way in which the respondent had dealt with them. This gave rise to a number of subsequent reports, each one dealing with the reports that had come before it. This is just a general overview of the circumstances, but it suffices to show the context in which most of the documents in question here came into being. 5 Under the respondent's protocol for dealing with disclosures of this nature, the disclosures came into the hands of Professor Ingleson (a Deputy Vice-Chancellor at the time). He directed Professors Dowton and McLachlan to make enquiry and report, and they did so in about April 2002 by way of separate reports. Professor Ingleson then prepared his own short report based on these two reports that had been submitted to him. A report by Professor Niland followed shortly thereafter. The respondent then commissioned an independent enquiry to report further: it did so on 31 January 2003 (the Brennan Report). This report then came to the hand of Professor Hume who instigated action pursuant to the respondent's Enterprise Bargaining Agreement to determine whether the Professor, who was the subject of the initial disclosures, was guilty of misconduct as those disclosures had suggested. It is this aspect which provides a nexus, the respondent argues, between Professor Hume's action (and the reports that followed) and the initial disclosures. Professor Hume engaged Professor Deane to investigate and report on the alleged misconduct. Professor Deane then did this and submitted a report (the Deane Report) to a Professor Wainright, who prepared his own report (the Wainright report), which he submitted to Professor Hume together with the Deane Report. Professor Hume then made certain determinations upon considering these two reports which he recorded in a document dated 23 December 2003 (commonly referred to as the Hume Report). Professor Hume also commissioned an inquiry by Hungerford QC, mainly into the issue whether the reports from Deane and Wainright had considered all the allegations that had been alleged in the initial disclosures. There were quite a number of them. Hungerford QC submitted his report on 09 June 2004. Finally, the respondent commissioned the St. James Ethics Centre to enquire into how, in an overall sense, the entire process had been handled. This report was finalised in April 2005. These several reports are particularised in exhibit R2, paragraph 8. 6 This brief overview demonstrates how the matter progressed from the initial disclosures and inquiry to the engagement of action under the Enterprise Bargaining Agreement and finally to an assessment of the way in which the entire process had been handled. Clearly, as steps were taken along the way the terms upon which various persons or bodies were engaged to enquire and report varied. But, despite these changes, the respondent argued that there is shown clearly, and consistently, a nexus between the reports that were prepared and the initial disclosures. 7 Exhibit C6, at pages 7 to 9 inclusive, sets out a convenient chronology of the communications that occurred when the initial disclosures were made, as well as other steps that were taken. The documents relevant to these initial disclosures are set forth as annexures to the Hungerford Report (namely annexures "O", "P", "Q" and "R": see the volume marked "Volume 7" which is part of the confidential documents DG-2 and DG-4 to exhibit R2, commencing at page 224). There is much factual variation shown by these communications: the communications are initiated by four different persons; some are addressed to different recipients and some are copied to other recipients; there is consistency of content in some parts of some communications but there are differences which are significant; and the communications are spread across a period of 12 months. 8 Given that the respondent established that the disclosures discussed above are protected disclosures, consideration needed to be given to the provisions of the Freedom of Information Act 1989. Clause 20(1)(d) of the Schedule provides that a document is exempt if it contains matter, the disclosure of which would disclose matter relating to a protected disclosure (within the Act). Consequently, to the extent that such documents, inter alia, record the protected disclosures made, discuss those disclosures or deal with them in any way, a disclosure of such material would disclose matter relating to a protected disclosure, on a broad reading of the necessary connection. This would include comments in the documents as to how the disclosures were investigated, criticisms of those investigations and recommendations as to outcomes or future steps that ought to be taken, again on a broad reading. The reason for this is that, clearly, it can be well argued that, by reason of the postulated connections, the material recorded in the document is matter relating to a protected disclosure. 9 The documents for which exemption has been claimed are listed in exhibit R2 at paragraph 2. They are 8 in number, although some documents contain several volumes. The history of these documents, and of the investigations that were undertaken and the several reports that were commissioned following the disclosures, is also set forth in exhibit R2, at paragraphs 10 and following. It is useful to here repeat relevant parts of the Tribunal's earlier preliminary decision and reasons concerning these documents. 10 Documents numbered 3 to 8 inclusive (exhibit R2, paragraph 2) are reports of investigations following the making of the disclosures. Exhibit R2, commencing at paragraph 30, describes these several reports further. These reports consider the allegations contained in the protected disclosures and the way in which the respondent dealt with these allegations (see paragraph 33 exhibit R2). The respondent submits that if these reports, considered individually, contain matter which embodies any type of consideration of a protected disclosure or which deals with the way in which respondent has handled the protected disclosure, then there is sufficient nexus between the matter in the reports, and the reports themselves (considered as a single document), and the protected disclosure. Again this is a broad brush approach, rather than a piecemeal one, but it is apposite in the circumstances. In the Tribunal's view this submission is correct. The consequence is that the documents numbered 3 to 8 inclusive are exempt documents within clause 20(1)(d). It may of course be appropriate at a later stage to consider whether excision of exempt matter is appropriate, should any such application be made. 11 Document number 1 (exhibit R2, paragraph 2; exhibit C4 annexure D)) was only located at a late date (transcript 21.09.06 page 26.54 ff). It is an unsigned document and ex facie it bears no relationship with any protected disclosure. It may have well preceded the making of any disclosures. However the respondent submits that this is the only copy of the document held and that it came into the respondent's submission by reason of the fact that it formed part of a submission that was made to the Brennan Inquiry (transcript 21.09.06 page 31.1). The searches made by the respondent to locate this document support this proposition. The relevance of submitting this document to this Inquiry is not established by the evidence, although it is possible to speculate that it may have had some relevance to credit issues. However, the question is whether submission to the Inquiry is sufficient to bring this document within clause 20(1)(d) of the Schedule. The relationship required by this clause is that matter in the document be related to a protected disclosure. The document clearly has a relationship with the Inquiry process itself: it was submitted for consideration and most likely had some relevance to the deliberations that the Inquiry undertook at the end of the day, although the nature of its relevance cannot be determined on the evidence before the Tribunal. It was then placed with the Inquiry papers and eventually found its way into the possession of the respondent in this form. As these deliberations directly concerned the protected disclosures that had been made, this document, more likely than not, had some significance for the disclosures themselves, even if it went no further than putting forward a contextual background. Consequently, it may be properly said that matter in this document is related to a protected disclosure and therefore this document falls within clause 20(1)(d). However, the Tribunal notes that the respondent has indicated that it will consider this document further (transcript page 32) and this may well resolve the issue. If not, discretionary considerations will become important given the limited nexus that this document has with any protected disclosure. 12 Document number 2 (exhibit R2, paragraph 2) is the subject of evidence in exhibit R2, paragraphs 27 and following. Ex facie it has no relationship with any protected disclosure that was made. However, the only copy held by the respondent came into its possession as a submission to the Brennan Inquiry. This document comes within clause 20(1)(d) on the same basis as does document 1. The Tribunal's reasons on this point are set forth above. It is also possible that discretionary considerations will become important in relation to this document as well. 13 The hearing in relation to the additional ground of exemption claimed and the Tribunal's discretionary powers occurred on 20.04.09. Exhibits AD1, AD2, AD3 and RD1 were received. During the course of this hearing, it became apparent that the views of the persons who made the protected disclosures had not been adequately addressed in the evidence. Such views are clearly relevant considerations. Equally, the views of the several experts who prepared and submitted expert opinion to the investigating bodies during the course of the respondent's investigations had not been addressed in the evidence. The views of these experts were relevant by reason of the claim for confidentiality in relation to the opinions that they expressed. This aspect was discussed at hearing and the Tribunal indicated that, if it appeared appropriate, directions would be made enabling these several third parties to join in the proceedings should they wish to do so. Neither party opposed this course. Consequently the proceedings were stood over part heard to a planning meeting at 02:00pm on 30.06.09 to enable the Tribunal to deliberate upon the merits of making such directions. 14 A significant part of the respondent's submissions against discretionary release of the documents to the applicant is that the documents relate to protected disclosures, even if only some of them are the actual disclosures which are protected under the Protected Disclosures Act 1994. Consequently, the views of the persons who made the disclosures are clearly relevant. The respondent also relies quite firmly on the confidential nature of the reports that were submitted by the experts in relation to the possible disciplinary proceedings that were under consideration. The views of these experts as to the release of their reports to the applicant are also clearly relevant to the issues now before the Tribunal. Neither party contends otherwise. 15 Whilst the respondent has certain enquiries on foot and is minded to release edited versions of the documents over which exemption is claimed, the applicant has argued that the editing would be quite extensive and therefore conducive of too much uncertainty and that the time has now come for clarity. This has placed him in the position where he is seeking access to the entire documents. As there is force in the applicant's position, the views of the third parties should be canvassed. Therefore directions to achieve this are apposite. 16 The Tribunal therefore directs the respondent to advise the makers of the protected disclosures and the makers of the confidential expert reports of the current position of these proceedings in the Tribunal and to advise them that they have leave to appear at the planning meeting listed for 30.06.09 and, should they wish to do so, make application to intervene and be joined as parties respondent in the proceedings. It would be appropriate for these persons to be also served with a copy of these reasons. 17 The parties are granted leave to file and serve any additional evidence they consider relevant on or before 24.06.09, provided that the respondent need not serve upon the applicant any evidence that it wishes to keep confidential by reason that such evidence would name the relevant makers of the protected disclosures or the relevant makers of the expert reports.