Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AQJ v University of New South Wales [2013] NSWADT 306 Hearing dates: 7 June 2013 Decision date: 31 December 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decisions are affirmed insofar as they relate to the refusal to release documents that are the subject of a claim of legal privilege. 2. The decisions are affirmed in so far as they relate to the refusal to release staff emails. 3. The decision are set aside insofar as they relates to the refusal to release CATEI information. In its place the decision is made that the Applicant is to be given a reasonable opportunity to inspect the withheld CATEI information in a manner that does not permit the copying of that information. Catchwords: Access to personal information, legal professional privilege - form of access - confidentiality - personal factor particular to the Applicant - internal deliberation Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Chan v Department of Education and Training (GD) [2010] NSWADTAP 7 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543. Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Hargreaves v University of New England [2013] NSWADT 233 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Seven Network Ltd v News Ltd [2005] FCA 142 Waterford v Commonwealth (1987) 163 CLR 54 Williams v Department Industry and Investment [2012] NSWADT 192 Category: Principal judgment Parties: AQJ (Applicant) University of New South Wales (Respondent) Representation: D Weinberger (Applicant) J McLeod (Respondent) Thomson Lawyers (Applicant) P Sheehy (Respondent) File Number(s): 133061, 133089 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as AQJ. The names of agency staff involved in the performance of official functions are also anonymised where their identification might reveal the identity of the Applicant. 2This is an application for review of a determination by the Respondent, the University of New South Wales ("the Respondent", "the University" or "UNSW"), in regard to two access applications under the Government Information (Public Access) Act 2009 ("the GIPA Act") by AQJ. In his access applications AQJ sought access to information held by the Respondent Background 3Mr Aiken, the Applicant's solicitor, provided an affidavit in which he set out the background to the application. I do not understand that to be in dispute. 4Until the end of 2012 AQJ was a student at UNSW. In 2012 he was in the third year of his degree. 2013 was to be his final year studying the degree. AQJ was registered with UNSW's Student Equity and Disability Unit ("SEADU") as he was and continues to be under a disability - an acute form of bi-polar disorder. 5During Semester 2, 2012 AQJ was enrolled in two courses at the University ("the courses"). The courses were both co-ordinated by the same individual. In these reasons I will refer to the co-ordinator as Ms S. Ms S was aware of AQJ's disability from at least August 2012. 6In September 2012 a tutor in one of AQJ's subjects confronted AQJ and accused him of passing off another student's work as his own ("the plagiarism allegation"). 7In these reasons I will refer to the tutor as Ms M. 8Ms S repeated Ms M's allegations by email to AQJ. AQJ forwarded Ms S's email to Mr Aiken. Mr Aiken attempted to contact Ms S by telephone with respect to the matters set out in her email but was unsuccessful. He then sent an email to Ms S but he did not receive a response to either his telephone message or to his email. 9The Applicant contends that the circumstances in which both Ms M and Ms S approached and wrote to him with respect to the plagiarism allegation breached, without limitation: a. The UNSW's Student Misconduct Procedures (both as they were in effect at that time to 30 November 2012, and as replaced); and b. The UNSW's Student Academic Integrity & Managing Plagiarism: Guidelines for Staff (Version 1.0, 20 February 2012. 10The Applicant further contends that from the time that Ms M and Ms S approached him, his health deteriorated significantly. In November 2012 AQJ's Psychiatrist directed him to cease work immediately and to rest under supervision for one week. 11Due to his condition, AQJ applied for special consideration in seeking and obtaining extensions of time to submit outstanding assessable work in respect of both courses. 12Ms S considered the Applicant's requests for special consideration. A representative of the SEADU assisted Ms S with her response to the request that was subsequently sent to AQJ. Extended dates were granted for submission of the work and AQJ submitted assessable work in accordance with those dates. 13In December 2012 Ms S informed AQJ that he had failed one of the courses ("the failed subject"). AQJ sent an email to Ms S, and others with respect to the fail mark and requested a meeting with members of the University faculty in which the Applicant studied ("the faculty"). 14An Associate Professor within the faculty, Ms C sent an email to Ms S indicating that she would prepare a response to AQJ's request. 15The Applicant, through his solicitors, applied for re-assessment of his assessable work in the failed subject. The re-assessment was not successful. 16In January 2013 Mr Aiken lodged a Complaint, on behalf of the Applicant, in accordance with UNSW's published Student Complaint Procedure in respect of, among other things, the Applicant's fail mark and the circumstances occurring in Semester 2, 2012. 17In January 2013 the Dean of the faculty wrote to Mr Aiken. The Dean confirmed that the academic assessment and review process of AQJ's work was conducted in accordance with UNSW and the faculty's assessment policies and procedures. 18In February 2013 a Student Complaints Authorised Officer, Mr Ken Bright, ("the SCAO") made a decision dismissing the Complaint. 19The Applicant has appealed the SCAO's determination of the Complaint. He contends that the circumstances in which Ms M and Ms S made allegations against him breached no less than two applicable policies and that the allegations had a deleterious effect on his health and condition and consequently UNSW is responsible for what transpired, in terms of the Applicant's subsequent failure, and the effect on his health. The Access Applications 20The first access application dated 14 January 2013 ("the First Access Application") which is the subject of proceedings 133061, sought the following documents: 1. For the years 2008 to 14 January 2013, all Course and Teaching Evaluation and Improvement ("CATEI") surveys, whether in final or draft form, conducted by or on behalf of UNSW, with respect to or concerning Ms S; and all CATEI surveys submitted by survey participants with respect to or concerning the courses. 2. For the period from 1 July 2012 to 14 January 2013, all emails sent or received by Ms S or Ms C concerning AQJ. 3. For each of the academic years 2009 - 2012, documents which identify the number of students enrolled in the courses who completed the course and the number of students receiving a final grade in the courses of: fail, pass conceded; and pass and above. 21The second access application dated 21 February 2013 ("the Second Access Application") which is the subject of proceedings 133089, sought the following documents: 1 All documents held by the SCAO, in respect of a complaint made by AQJ by letter dated 16 January 2013 from his solicitor, including all documents sent or received by the SCAO in respect of that Complainant. 2 AQJ noted that a copy of the Complaint need not be produced unless annotations or comments had been made to it by or on behalf of the University. 22AQJ summarised his requests as seeking: a. CATEI reports for years 2008 to 2012 in respect of the courses; b. Emails passing between Ms S and Ms C concerning AQJ; c. Course statistics for the courses; and d. The file held by the SCAO in connection with the Complaint. 23He noted that the information sought concerns his assessment and treatment by UNSW, not only in connection with how his work was assessed and reassessed, but also in connection with the manner in which he was treated by UNSW as a person with a disability, how his Complaint was determined, and statistical information concerning the quality and evaluation of the courses he undertook, both in 2012, and for a comparative analysis, earlier years. The Respondent's determination 24The Respondent's Head of Governance Support, Ms Deborah Gibson, determined the first access application in March 2013. With the exception of some emails between UNSW and the Applicant and/or his representatives Ms Gibson refused access to the requested information. Ms Gibson determined to refuse access to some other emails ("the withheld emails or staff emails") and the remaining documents on the basis that she considered that there is an overriding public interest against their disclosure. 25In relation to the CATEI material Ms Gibson stated: CATEI surveys and their results are one of a number of activities designed to provide course feedback. They are an internal mechanism which provides for the confidential collection of student opinions and are not intended to be treated as a staff performance evaluation tool. They are treated confidentially and not widely disseminated. Students are not restricted from providing opinions about their teachers which might, if made public, be defamatory, or damaging to the reputation and to the business or professional interests of their teachers and of the University. The University's ability to conduct CATEI surveys and make use of their findings could be significantly impaired if confidentiality were not maintained. As the University operates in a competitive environment, disclosure of surveys and/or their results may adversely impact on the University's competitive advantage. The performance of individual students is their personal information. In addition to the reasons already given concerning CATEI, the information concerning pass/fail rates is from a very small cohort and may, if released enable identification of individuals. Disclosure of CATEI and pass/fail information would most likely cause speculative discussion of individuals. It could reasonably be expected to contravene the information protection principle set out at s18 of the [Privacy and Personal Information Protection Act 1998] and none of the exceptions set out in that section would apply. I consider that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. ... It is not practicable to provide copies of the withheld documents with information for which there is an overriding public interest against disclosure deleted. 26In relation to the requested emails Ms Gibson stated: I consider that access should be refused to some of the emails because, for those emails, the public interest considerations in favour of disclosure are outweighed by the public interest considerations against disclosure. A number of the emails relate to requests for advice and the drafting of correspondence concerning student progress and assessment. Such advice and recommendations are given in the expectation that they will be treated confidentially. The management of student progress and assessment is a central part of the University's functions, and it is essential to the effective conduct of these functions that staff can seek and obtain advice in confidence. Disclosure could undermine this expectation of confidentiality and so damage the effectiveness of the University's processes in the future. Some of the emails also refer to the progress and assessment of students other than [AQJ], and this information is not relevant to the information applied for. The University has established processes for advising students about their progress and assessment results, including opportunities for students to seek further information and to lodge appeals or grievances. The public interest in protecting the integrity of the University's processes by maintaining the confidentiality of internal deliberations outweighs the public interest in disclosing the withheld emails. For those emails which are routine in nature and which do not contain the personal information of individuals, I consider the public interest considerations in favour of disclosure outweigh those against disclosure. ... I have considered whether it would be practicable to provide copies of the withheld emails with information for which there is an overriding public interest against disclosure deleted. I consider that in some cases it would be practicable to delete those parts containing personal information of other students, but it would not be practicable to delete those parts which are covered by the other considerations against disclosure, as doing so would leave no relevant substantive content in the emails. 27Ms Gibson determined the second access application in April 2013. She decided to provide access to the correspondence between UNSW and the Applicant and/or his representatives. Ms Gibson decided to refuse access to the remainder of the documents. She stated: The withheld material is draft correspondence, advice and records of discussions by University staff concerning the complaint. Some of the documents in question are also either confidential communications between a lawyer employed by the University of New South Wales and other persons or confidential documents prepared by that lawyer. The University is a 'client' for the purposes of the definition of 'client legal privilege' under clause 5(1) of Schedule 1 to the Act, and the University's employed solicitor is a `lawyer' for the purposes of client legal privilege. The University has established processes for advising students about their progress and assessment results, including opportunities for students to seek further information and to lodge appeals or grievances. The documents were created in the expectation that they would be treated confidentially and they have been treated confidentially by the University. Student progress and assessment, including complaint handling are important functions of the University, and it is essential to the effective conduct of these functions that staff can seek and obtain advice in the expectation of confidentiality. A copy of the University's decision concerning your complaint and reasons have been communicated to you. The University's Student Complaint Procedure ("the Procedure") imposes specific requirements concerning confidentiality. I understand that there is an ongoing appeal concerning the decision made under the Procedure. Disclosure of the withheld material would breach the confidentiality requirements of section 11 of the Procedure. ... I have had regard to the public interest considerations in favour of disclosure and the public interest considerations against disclosure set out above. On balance, I consider that the public interest considerations in favour of disclosure are outweighed by the public interest considerations against disclosure. ... It is not practicable to provide a copy of the records with the information for which there is an overriding public interest against disclosure deleted, nor to provide access by way of creating a new record. 28The Applicant was not satisfied with the Respondent's determinations and he applied to the Tribunal for external review. The Applicant's solicitor, Mr Aiken also wrote to the Respondent identifying documents which appeared to fall within the scope of the First Access Application, but which had not been produced or identified on the Respondent's schedule of withheld documents. 29The Respondent subsequently made supplementary decisions in regard to both the first and second access applications. The Respondent's Compliance Manager, Mr Paul Serov, made the supplementary decisions. On 14 May 2013 Mr Serov determined: First Access Request Part 1 I have decided, under s58(1)(a) of the GIPA Act, to provide access to 2 'Form A' CATEI 'summary reports' for the courses ... for 2012. A copy of this information is enclosed. Part 2 I have decided, under s58(1)(a) of the GIPA Act, to provide access to some further emails for which I consider there is not an overriding public interest against their disclosure. Copies of the emails for which there is no overriding public interest against disclosure are enclosed. Personal information of other persons has been redacted from one of these emails. Part 3 I have decided, under s58(1)(a) of the GiPA Act, to provide access to a document which identifies the number of students enrolled in [the courses] from 2009 - 2012 who completed the course and the number of students receiving a final grade in [the courses] of: fail, pass conceded; and pass and above, as there is not an overriding public interest against its disclosure. A copy of this information is enclosed. Second Access Request I have decided, under s58(1)(a) of the GIPA Act, to provide access to some further documents in relation to which I consider there is not an overriding public interest against their disclosure. Copies of the documents for which there is no overriding public interest against disclosure are enclosed. 30On 16 May 2013 Mr Serov dealt with four further emails that had been identified as falling within Part 2 of the first access application. Mr Serov determined to refuse access to the emails and stated: Under s 9(1) of the GIPA Act, you have a legally enforceable right to be provided with access to the information sought, unless there is an overriding public interest against disclosure. In making such a determination, agencies must apply the public interest test under s 13, which provides that there will only be an overriding public interest against disclosure where public interest considerations in favour of disclosure are, on balance, outweighed by those against disclosure. I have applied the public interest test and determined that there is an overriding public interest against disclosure of the information. The information falls within the description in clause 5(1) of Schedule 1 to the GIPA Act which provides that It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. The four emails are confidential communications between a lawyer employed by the University and another person within the University. I therefore consider that this information would be privileged from production in legal proceedings on the ground of legal professional privilege. The University has determined not to waive privilege in regard to this information. In accordance with s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is subject to legal professional privilege. 31The Applicant contends that this inadequate and piecemeal disclosure by the Respondent is reflective of the Respondent's obfuscation of its obligations under the Act. Information in dispute 32The issues in dispute have narrowed since the commencement of the proceedings because the Respondent's subsequent determinations have resulted in a large volume of documents being released. 33The Applicant summarised the issues which remain in dispute as follows: a. With respect to the first access request (proceedings 133061): i. Whether CATEI survey information held by the Respondent for years 2008-2012 for the courses should be provided to the Applicant; ii. Whether the withheld emails should be provided to the Applicant, or are free from disclosure on public interest considerations; iii. Whether four additional documents between Ms C and Mr Paul Sheehy, an Assistant University Solicitor with the Respondent, are legally privileged communications and therefore not subject to disclosure; b. With respect to the second access request (proceedings 133089): i. Whether that part of the Complaint file which the Respondent claims contains legally privileged communications, should be disclosed to the Applicant. 34The matter came before me for hearing on 7 June 2013 at which time the parties presented evidence and made submissions in support of their cases Applicable Legislation 35There is general agreement on the relevant legislative provisions and the legal principles that apply. 36The GIPA Act generally The object of the GIPA Act is to open government information to the public by giving members of the public an enforceable right to access and only restricting access where there is an overriding public interest against disclosure: see subsection 3(1), section 5 and subsection 9(1) of the GIPA Act. Public Interest Test 37The test to be applied in determining whether there is an overriding public interest against disclosure is set out in section 13. That test is in the following terms: 13 Public interest test 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. 38Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of disclosure of government information. Subsection 12(2) provides that public interest considerations in favour of disclosure are not limited. The section goes on to provide some examples of public interest considerations in favour of disclosure of government information. These include: Note. The following are examples of public interest considerations in favour of disclosure of information: (a) 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. (b) 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) 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. 39The public interest considerations against disclosure are limited. These are set out in section 14 of the GIPA Act. 40Subsection 14(1) provides for certain government information to be conclusively presumed to give rise to an overriding public interest consideration against disclosure. That information is set out in Schedule 1 of the GIPA Act. Where government information falls within this description, the public interest test in section 13 is satisfied without further inquiry. The Respondent has asserted that clause 5 of Schedule 1 applies. That clause states: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 41The only other public interest considerations against disclosure are those set out in the table to section 14. These are not conclusively presumed to give rise to an overriding public interest against disclosure. For the purpose of this application, the Respondent contends that clauses 1(d), 1(e), 1(f), 1(g), 1(h), 3(a), 3(b) and 4(d) of the section 14 table are applicable: 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, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, ... 4 Business interests of agencies and other persons 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: ... (d) prejudice any person's legitimate business, commercial, professional or financial interests, ... 42The phrase 'could reasonably be expected to' has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). The words in the phrase are to be given their ordinary meaning-. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Bowen CJ and Beaumont J held that the phrase - requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. 43In McKinnon v Secretary, Department of Treasury [2006] HCA 45 Hayne J held (citations removed): when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". 44With respect to each public interest consideration against disclosure upon which it relies, the Respondent is to show that disclosure could reasonably be expected to have the nominated effect. Prejudice supply of confidential information Clause 1(d) 45There is a public interest consideration against disclosure if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's function. Whether a disclosure will 'prejudice' should be understood in the context of its ordinary meaning "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60] 46The determining question is whether, as a question of fact, the information is confidential. In determining the question of confidential information a number of principles apply: see Williams v Department Industry and Investment [2012] NSWADT 192 (i) The confidential quality of communications is a question of fact; (ii) To establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; (iii) The confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; (iv) The confidential quality of the information must be determined in the light of all of the circumstances of the particular case. 47Personal information is defined in clause 4 of Schedule 4 of the G1PA Act: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause. 48Section 55 of the GIPA Act provides for consideration of personal factors of the application. It states: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. 49The onus is on the Respondent to establish that its decision in regard to the disputed information is justified: see subsection 105(1) of the GIPA Act. The Applicant's case 50The Applicant relies on affidavit evidence by his solicitor, Mr Aiken. Mr Aiken's evidence 51In his affidavit Mr Aiken provided background information of events that lead to the access applications. He noted that the information sought in the access applications concerns the assessment and treatment of the Applicant by the Respondent in connection with how his work was assessed and reassessed. It also concerns the manner in which he was treated as a person with a disability, how his complaint was determined, and statistical information concerning the quality and evaluation of the courses that he undertook. 52Mr Aiken annexed over 300 pages of material to his affidavit. Included in that material is correspondence between the parties, UNSW policy documents, and CATEI related material downloaded from the internet. 53Mr Aiken's evidence is that on 17 September 2012 Ms M confronted the Applicant and accused him of passing off another student's work as his own and that on 21 September 2012, Ms S repeated the allegations by email to the Applicant. 54The Applicant contends that the circumstances in which both Ms M and Ms S approached and wrote to him with respect to the plagiarism allegation breached: a. The UNSW's Student Misconduct Procedures; and b. The UNSW's Student Academic Integrity & Managing Plagiarism: Guidelines for Staff. 55Mr Aiken annexed each of those documents to his affidavit. 56In relation to the CATEI related material downloaded from the internet Mr Aiken stated: On 9 April 2013 I undertook a search on the Respondent's [faculty] website blog. I located a posting on that website notifying students that if they complete the CATEI survey they can view lecturer feedback on comments and course data after the results are finalised. ... On 8 November 2011, [Mr F of the faculty] sent the Applicant (and others) an email encouraging the Applicant to complete a CATEI survey for [the course] and stated in part: the course evaluation results summary and comments are able to be viewed by lots of people, so please be careful about what you write!'. He also stated that: 'I include all the comments I receive from students via the CATEI process in my course outline for the next class'. The Applicant's submissions 57Mr Weinberger provided written submissions and also made oral submissions in relation to the evidence given at the hearing. 58He submitted that under the GIPA Act there is an overwhelming presumption in favour of disclosure. In addition, the Respondent has a number of policies that support disclosure. Mr Weinberger referred to a number of those policies and submitted that, when read together, the tenor of the relevant policies favour transparency and disclosure in connection with all matters concerning a student's enrolment, and in particular, the assessment of students by the Respondent. 59In relation to the withheld emails, Mr Weinberger submitted that as Mr Serov determined that the Applicant may have access to the 'Complaint File', and that as that file includes information collated in connection with the first access application, access to the withheld emails should be granted. 60Mr Weinberger further submitted that the Applicant suspects that the remaining withheld emails may cause embarrassment to certain staff of the University. However, he notes that it is irrelevant if the disclosure of information might cause embarrassment to, or loss of confidence in, the University, and it is irrelevant that information disclosed might be misinterpreted or misunderstood. He submits that it is overwhelmingly in the public interest that the Applicant be granted access to information about him that is held by the Respondent. 61Mr Weinberger submitted that this is particularly so when that information may include exchanges of emails between staff who were teaching and assessing the Applicant, and information which may touch upon or reveal the staffs' perceptions of the Applicant, their attitudes or prejudices toward him, and the manner in which those perceptions, attitudes or prejudices may have informed the subsequent treatment by those individuals of the Applicant, including his assessment and re-assessment. Moreover, where the Applicant contends the Respondent has in fact treated him unfairly, it is overwhelmingly in the public interest that the Applicant be granted access to all relevant information that may support or displace that contention. 62To the extent that the Respondent relies on the section 14 clause 1(e) considerations, the Applicant says: a. the alleged 'deliberation or consultation' conducted has concluded. Therefore that process can no longer be `prejudiced'; b. under the Respondent's Assessment Policy, the Respondent's grading procedures must be 'fair and equitable'. It is fair and equitable that the Applicant be given all information that may have formed the basis of his grade. It is also fair and equitable' that the Respondent be transparent with respect to such matters; c. under the Respondent's Student Code Policy, the Applicant is entitled to receive timely and clear feedback on assessment. The Applicant says that the evidence of Professor Iain Martin, the Vice-President and Deputy Vice-Chancellor (Academic) at UNSW implies that other considerations, which are not written, have been applied in making an assessment of the Applicant's work; d. the Respondent's has no assessment policies and procedures which permits consultation and deliberation between staff. The Applicant is entitled to know and understand those assessment policies and procedures if they differ from the published policies and procedures; e. under the Respondent's published 'Assessment Information Access' the Course authorities are responsible for ensuring that there is a clear written statement of expectations which should include a statement of the objectives of the course, its assessment plan, including weights allocated to each significant assessable component and related submission dates. Mr Weinberger submitted that, in circumstances where assessment criteria and processes must be clear, it is difficult to accept the Respondent's contention that certain deliberations or consultations should remain private and free from disclosure; and f. some of the withheld emails post date the period in which the Applicant's work was actually assessed or re-assessed. Mr Weinberger submitted that it can hardly be contended that these involved a deliberation or consultation on matters concerning the assessment of the Applicant. 63To the extent that the Respondent withholds the emails on the basis of clause 1(f) considerations Mr Weinberger submitted that there is no evidence from the Respondent to demonstrate that the release of these emails will prejudice the effective exercise by an agency of the agency's functions, in the sense stated in Hurst v Wagga Wagga City Council at [59-71]. In Hurst Judicial Member Molony stated: To prejudice the effective exercise by an agency of the agency's functions This is found at point 1(f) of the Table to s 14. Mr Hurst submits that the requirement that release "prejudice" the agency's functions requires more than that release will "hinder or make more difficult" the agency's functions. Aside from this, Mr Hurst does not make submissions as to what prejudice means in the context. The Information Commissioner submitted - The word "prejudice" has been found in cases decided under FOl legislation to have its ordinary meaning: "to cause detriment or disadvantage" [Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266] or to "impede or derogate from" [Sobh v Victoria Police [1994] VicRp 2; (1994) 1 VR 41]. I accept that this adequately summarises the decision on the meaning of prejudice under the FIO Acts. It is equally applicable in the context of the GIPA Act. In her statement Ms McCormack said that she has worked with three General Managers at the agency in Code of Conduct investigations. She has acquired a detailed knowledge of the Council's policies, procedures and practices relating to such investigations. She said that: Staff members who are the subject of complaints are given access to the information in the complaint to ensure procedural fairness. Nothing in the Code of Conduct authorises a complainant to have access to staff responses. Complainants are not given access to staff responses. The Council's practice in restricting Code of Conduct information is consistent with s10A of the LGA. It is the practice of Council that statements made in response to Code of Conduct complaints are confidential. Ms McCormack said that in her experience - " ... the effectiveness of Code of conduct investigations into Council staff matters relies on information that it provided to, or produced by, the Council only being made available to Council officers involved in the investigation process. ...protection of information in this way promotes and environment of trust and confidence in which the complainant, staff and witnesses can provide candid information to the general manager, and the general manager can determine a complaint, without fear of the potential embarrassment or reputational or other harm that may result from the release of the information in other circumstances to other people." These expressions of opinion by Ms McCormack are based on her experience in an environment where, as a matter of practice, staff responses to Code of Conduct investigations have been kept confidential. She does not depose to having any experience of code of conduct investigations where confidentiality was not maintained. Given her experience, it is difficult to understand on what basis she can reasonably claim that the effectiveness of code of conduct investigations "relies" on that confidentiality. Her evidence does not disclose any other basis for the formation of her opinion, aside from the fact the confidentiality has been maintained in all the investigations she has been involved in. In those circumstances it is difficult to give her opinion as to the consequences of disclosure any weight, as they are assertions based on her experience, gained in investigations where confidentiality was maintained as a matter of practice. Her evidence does not identify any basis for a comparison between investigations where confidentiality has been maintained, and those where it has not. It does not disclose a rational or underlying factual basis for the conclusion that, if information provided by staff were disclosed, it could reasonably be expected that staff would be unlikely to co-operate with investigative processes. This strikes me as taking a very dim view of the integrity of council staff, and of their willingness to ensure that the processes they manage are conducted efficiently, effectively and honestly. I conclude that Ms McCormack opinion is based on limited experience and involves considerable speculation. I do not accept that it is reasonably or rationally held. I do accept that it is the practice of Council to keep staff disclosures to Code of Conduct investigations confidential. Ms McCormack, however, does not identify or explain how disclosure under the GIPA Act of information, which has been treated confidentially, could reasonably expected to prejudice the effective operation of the Council. It is submitted on Council's behalf that disclosure would impair the effectiveness of future Code of Conduct investigations, "because it will discourage the future candid and voluntary provisions of information." When one analyses Ms McCormack's evidence it is apparent that her opinion on this issue is an assertion based on her experience, which, on her own evidence, does not include code of conduct investigations where confidentiality has not been maintained. Her evidence discloses no basis for the assertion that staff will be less than fully forthcoming if information they provide to code of conduct inquiries is disclosed. Employees of the agency, under the Code of Conduct, have obligations to be ethical, honest and accountable, to "carry out lawful directions" (see 9.4) and to report suspected breaches of the Code of Conduct (see 11.6). Additionally, as the Information Commissioner pointed out in submissions there is no express confidentiality provision in the Code of Conduct. With respect to the submissions concerning s 10A of the Local Government Act 1993, the issue, as I understand it, is that under s 10A(2) (b) enables a council to close its meeting to the public where the discussion concerns "personnel matters concerning particular individuals (other than councillors)." The section also enables closed meeting to be held where other matters such as confidential information, and information said to be subject to legal professional privilege are discussed. The agency argued that its practice in restricting access to complaint documents was consistent with that provision. While I accept that this is the case, the provisions of s 10A of the Local Government Act 1993 do not create a further or additional public interests considerations against disclosure under the GIPA Act. The permissible public interests considerations against disclosure are set out in s 14 and cannot be added to. In every case the decision maker's obligations are to identity the applicable public interest considerations in favour of disclosure and those against, and to then balance them in arriving at a conclusion. As a consequence the agency has not established that release of documents 4 and 5 could reasonably be expected to prejudice the effective exercise by the agency of it's functions, 64In relation to the withheld CATEI material Mr Weinberger submitted: As a result of a further review of the First GIPA Application the Respondent has produced the 'Form A' CATEI results for [the courses] for 2012. That decision alone tends to undermine much of the Respondent's reasons for withholding the balance; clearly if these results are routinely released to participants to the surveys than there can be no public interest against disclosure in the wider sense. Surveys for additional years being available will assist in not only ascertaining over a reasonable review period what are student's views on the respective courses, but are also an important source to determine if indeed the Respondent is acting upon negative feedback about courses, and being proactive in addressing the negative aspects of any particular students experience. That could only ever be in the public interest. In any event ... an examination of the Respondent's own website reveals multiple examples of CATEI results (both Form A and Form B) being routinely and freely available to students and the public generally ... The 2013 General Student Information booklet for the Respondent's faculty, College of Fine Arts, also states under the heading 'CATEI: Student Feedback on Courses & Teaching' that An overall response to summary CATEI findings will be available to the whole class from your lecturer, Course Convenor, Program Director or Head of School and will be used to update Course Outlines and inform long-term curriculum renewal processes' ... Therefore it appears they are routinely made available. A 2010 [faculty] Blog posting also informed potential participants of the CATEI survey for that year that 'if you complete the survey you can view lecturer feedback on comments and course data after the results are finalised' and 'if you complete the survey you are then given access to see the completed results for Form A evaluation and so find out what your peers thought' ... On 8 November 2011 ... a senior lecturer within the [faculty] informed the Applicant, with respect to the [course] that he includes all the comments [he] receives from students via the CATEI process in [his] course outline for the next class ... Therefore it is difficult to accept the Respondents statement that this information is not widely disseminated or routinely available. Further, staff of the Respondent are clearly notified that they must participate in CATEI surveys: a. The UNSW CATEI - Course and Teaching Evaluation and Improvement sheet on the Respondent's 'teaching gateway' website states that 'staff are expected to undertake at least one teaching evaluation each year' ...; b. Section 3 of the Learning and Teaching Induction Booklet for New Academic Staff informs staff that 'Formal evaluation at UNSW is done through the Course and Teaching Evaluation and Improvement (CATEI) process .... Each course within a School will be evaluated every 2nd year, and each permanent member of the teaching staff will have their teaching evaluated on an annual basis' ... Accordingly, it is difficult to accept the Respondent's submission that disclosure of such information may impact on the legitimate business expectations of staff when, with respect, staff are made aware that they must participate in the surveys and the staff clearly informed that it is a requirement of their employment that they so participate in these CATEI surveys. Indeed, it is certainly in the public interest that the public have access to information which may tend to reveal staff who have consistently received negative feedback in the CATEI evaluations, and ensuring that institutions such as the Respondent, are acting on negative feedback which may have been received. To the extent the Respondent contends that release of the information will compromise the confidential basis on which students complete CATEI surveys, this seems to be in direct contradiction to the multiple assurances given to potential participants of the survey, that everything is provided confidentially and anonymously ... None of the information produced or available actually identifies any individual (other than the staff member assessed) and hence the Applicant cannot see how any confidentiality could be breached. In any event all of the CATEI results which have been obtained from the Respondent's website, ... reveal no such information which would tend to identify the person completing the survey. With respect to the CATEI documents withheld, it would also be available to the Respondent to ascertain if any of the responses in the various surveys do in fact reveal any particular individual, and that information could be redacted. Assuming the Tribunal favours redaction, no plausible reason is advanced against disclosure. Fundamentally, there is an overwhelming public interest in enabling any student studying a course at the Respondent's university to obtain information relevant to that course which includes information about previous students' perceptions of staff conducting those courses and subject content. This information can inform students not only as to the selection of subjects, but also the selection of which tertiary institution they may study at. Moreover, where undertaking tertiary education is a significant financial investment for any student, the ability to obtain and consider relevant survey data about a particular university, subject, course or lecturer, simply underscores the significant public interest in the distribution of this information. Furthermore, in circumstances where the Applicant has failed [the failed subject] for reasons which in his opinion have not been entirely or adequately explained to him, and would need to redo the subject in order to progress through to the completion of his degree, it is reasonable for him to be provided information gathered through the CATEI process in order for him to determine whether his fail mark could be attributed to, in whole or part, a failure on the part of the teaching staff of that subject, or alternatively a failure by the Respondent to take in to consideration past negative feedback on the subject or particular lecturers. This is a personal factor concerning the Applicant. The Applicant also notes that as a result of the production of the statistics concerning the pass and failure rates of students undertaking [the course] in the past 5 years, and the limited 2012 CATEI statistical information produced to date, it would appear that: a. there is an inconsistency between the CATEI form for [the course] and the statistical information (pass/failure rates) for 2012, in terms of enrolled students (CATEI identifies 51, whereas the statistical summary identifies 33); b. in the years in which [Ms S] has been course co-ordinator for [the course] there has been a marked increase in failure rates. For example in year 2010 when the course co-ordinator was [Ms C] there was a 5% failure rate, in 2011 the failure rate jumped to 24% and in 2012 the failure rate was 27.27% (if we accept that the enrolled students were in fact 33, as opposed to the 51 recorded on CATEI). In circumstances where the Respondent is committed to the principles of course and teaching evaluation and improvement, and the statistical information to hand suggests a significant rise in the number of failures in this subject under [Ms S's] tenure, it is in the public interest that information be disclosed which may inform the Applicant, and indeed students generally, of matters which may be relevant to them undertaking this course or indeed continuing on within the [faculty]. 65In relation to the withheld material in relation to which legal privilege has been asserted the Applicant disputes that legal professional privilege can attach to any of the documents. 66Mr Weinberger submitted that legal professional privilege protects disclosure to third parties, and others, of confidential communications between a client and their lawyers or the contents of a document, which has been prepared for the dominant purpose of: a. The lawyer provided legal advice to the client; or b. The client being provided with professional legal services relating to an existing or anticipated legal proceeding. 67For legal professional privilege to apply, the document in respect of which privilege is claimed has to have been created for the dominant purpose of legal advice, and it must be a communication with a lawyer. 68While the Applicant does not dispute that Mr Sheehy is in fact a lawyer, the Applicant contends that as an in-house lawyer, he is not sufficiently independent of the Respondent, such that his personal loyalties, duties or interests do not influence the advice given: Waterford v Commonwealth (1987) 163 CLR 54 and Seven Network Ltd v News Ltd [2005] FCA 142. Mr Weinberger submitted that: This lack of independence or objectivity is borne out in a consideration of the emails which been produced to the Applicant on 15 May 2013 which relate to the SCAO's responses to certain emails and/or documents prepared by the lawyer. In particular, the Applicant refers to the following: a. an email dated 24 January 2013 in which the SCAO forwards a document apparently prepared by the lawyer to [Ms A] and states 'as discussed this is very well written but clearly one lawyer to another'. A plain reading of that response suggests that what has been prepared is a proposed response to the Applicant or his lawyer, as opposed to the provision of legal advice from an independent lawyer; b. ... an email dated 24 January 2013 in which the SCAO forwards to [Ms R] a document, apparently prepared by the lawyer, in which the SCAO states 'given the nature of the complaint it was run past Carol and by way of action I have this very well written response back to the lawyer'. He further observes 'I suppose my initial concern is that this is clearly one lawyer talking to another lawyer so not sure I could ever attempt to pass this off as something I just Whipped up'!'. Again, what seems to be occurring is the lawyer is not providing independent advice, but simply seeking that the SCAO act as a conduit to provide a response which may well be to protect the interests of the Respondent. ... To the extent that the Respondent claims information passing between the SCAO and the lawyer are privileged communications, the Applicant says that given the Policy and principles pursuant to which the SCAO is obliged to act, he could not be a 'client' for the purposes of privilege attaching. For example the Complaints policy does not permit the SCAO to seek legal advice from the Respondent's in house lawyer. The policy permits that advice being obtained from 'external organisations' but only on matters of procedure ... Alternatively, if the Respondent claims that the SCAO is the client, the SCAO has not claimed privilege in the context of the current Application; rather the Respondent has and it is not for the Respondent to do so. The Respondent has no standing to claim privilege. The proper characterisation of the communications, by reference to the surrounding emails which refer to that 'advice', and particularly the SCAO's emails to both [Ms R] and [Ms A], is that the SCAO (probably in breach is his obligations of confidentiality under the Policy) gave the Respondents in house lawyers the 'heads up' of the Complaint and the in house lawyers sought to prepare self serving responses for the SCAO to send. Consequently, they are not privileged communications. Indeed, that characterisation simply underscores the lack of requisite independence that the lawyer has, and objectivity between the giving of advice and the interests of his employer. Moreover, the fact that the same lawyer is now acting for the Respondent in these Proceedings is further evidence of this lack of requisite independence in the context of giving advice to the SCAO who himself is under an obligation of procedural fairness. If the Respondent contends that the client is the Respondent in the capacity of the respondent to the Complaint, than the Applicant says that the provision of the communications by the lawyer to the SCAO constitutes a waiver of that privilege. Given the reviewed determination of Mr Serov in connection with the Second GIPA Application is to the effect that given the Applicant has lodged an Appeal with respect to the Complaint, and he is entitled to the Complaint file, that file must include the documents which the SCAO had, including those in respect of which privilege is claimed. With respect to the 4 emails for which privilege is claimed in connection with the First GIPA Application, that claim must fail on the same basis of lack of independence. Also the Applicant notes that with respect to similar emails from UNSW Legal Office to the various participants which were identified on the Respondent's schedule of withheld documents no claim for privilege was made. 69Mr Weinberger submitted that Mr Sheehy's experience is meaningless and that the creation of a file identified as 'Legal-in-Confidence' is not determinative of the issue of whether the withheld material attracts legal privilege. 70Mr Weinberger submitted that Mr Sheehy could not have been acting independently. He gave advice to both Ms C and Mr Bright. Further, there is no evidence in relation to the dominant purpose nor can an inference be drawn in that regard. He submitted that all the advice that Mr Sheehy gave was for a mixed purpose. 71Mr Weinberger submitted that Professor Martin was not a candid witness. Professor Martin agreed that material should be disclosed unless there is good reason to withhold it and Mr Weinberger submitted that no good reason has been given. 72Section 55 of the Act permits this Tribunal to consider personal factors of the Applicant which may inform the Tribunal decision in deciding to grant access or otherwise to the withheld documents. Mr Weinberger submitted that relevant factors in relation to these requests include: * The Applicant's personal factors are that he is a mature aged student, is under a disability and as such is registered with the Respondent's SEADU. A psychiatrist's letter has been provided on behalf of the Applicant. * He contends that the plagiarism allegations were made in breach of the Respondent's policies, and those circumstances had a deleterious effect on his already vulnerable state. As a consequence he got very sick and his studies suffered. * He contends that in light of his subsequent treatment by the Respondent, including in terms of how his work was assessed, he should be entitled to full disclosure of what went on between the relevant Respondent staff. * With respect to the Complaint itself, it is clear on information provided to date that the SCAO has breached numerous provisions of the policy, failed to provide the Applicant procedural fairness and released a copy of the Complaint to others not involved in the investigation which amounts to a breach of his obligation of confidentiality. This is a factor that should inform this Tribunal in determining whether access to the remaining information should be made. * It is overwhelmingly in the public interest to ascertain and ensure that individuals under a disability have been treated fairly and equitably and to the extent information held by the Respondent may reveal whether or not that has occurred in the present case, should be disclosed. 73The Applicant seeks an order that all remaining documents sought in the access applications be disclosed and that the Respondent pay the Applicant's costs. The Respondent's case 74The Respondent relies on affidavit evidence by Ms Gibson; Mr Sheehy; Professor Martin; and Mr Paul Scimone, the Deputy Director of UNSW's Institutional Analysis and Reporting Office. Professor Martin and Mr Sheehy also attended the hearing, gave evidence and were cross-examined. Ms Gibson's evidence 75Ms Gibson is the Head of Governance Support at UNSW. The Governance Support unit administers a range of statutory and internal compliance obligations, including those under the GIPA Act. Ms Gibson was the initial decision maker in relation to the first and second access applications. 76In her affidavit affirmed on 13 May 2013 Ms Gibson outlined that steps she took in relation to the first and second access applications for the purpose of determining those applications. 77Ms Gibson was not required for cross-examination at the hearing. Mr Scimone's evidence 78Mr Scimone is the Deputy Director of the Institutional Analysis and Reporting Office ("IARO") at UNSW. His accountabilities include facilitating the development, implementation, management and review of effective business intelligence, forecasting, data analysis systems and application development systems to inform the executive of the strategic direction of UNSW. He also guides business decisions across all areas of business activity, including: research, learning and teaching, recruitment and budgets. He assists the Director of IARO to meet UNSW internal management reporting and external statutory reporting of relevant data to State and Federal Government Departments. 79Mr Scimone is responsible for managing the system development, implementation and maintenance of the CATEI process. In his affidavit sworn 14 May 2013 Mr Scimone provided a detailed outline of the process. He described that content of the survey as follows: In each CATEI survey, students are invited to: a) provide their answers to up to 10 'multiple choice' questions relating to the course they have just completed (or are about to complete), using a 6 point scale ranging from 'Strongly Agree' to 'Strongly Disagree', with an additional option of 'N/A'; (Rating scale Items) and b) provide 'freeform' comments in response to 2 further questions within each survey (Open-ended Items), namely: The best features of this course [or lecturer's or tutor's teaching] were'; and 'This course [or lecturer's or tutor's teaching] could be improved by.' Students are not in any way guided as to the way in which they should answer the 10 Rating Scale Items and are not in any way restricted as to the content of the written comments they can provide in response to the Open-ended Items. Accordingly, through their written comments, students can provide feedback on any aspect of a course or its teaching (or individual teachers), and they can be as specific or as general as they want to be. The completion of CATEI surveys at UNSW is voluntary. However, students are strongly encouraged by their lecturers and tutors to complete CATEI surveys and to provide honest answers when they do so, in the expectation that their comments will not be able to be used against them, will be treated confidentially and will not be disseminated outside UNSW. The email that is sent to students prior to completing an online survey ... states the following: "Please be assured that all individual responses to the surveys are confidential and will only be reported in aggregated form. Your individual response cannot be identified." There are 4 types of CATEI surveys: Form A: Course Evaluation, which is used for the overall course evaluation (Form A Survey); Form B: Large Group Teaching Evaluation, which is used for evaluating the large group teaching component of a course (such as lectures) (Form B Survey); Form C: Small Group Teaching Evaluation, which is used for evaluating the small group teaching component of a course (such as tutorials) (Form C Survey); and Form D: Studio/design based Teaching, which is used for evaluating the studio/design based teaching component of a course (as applicable) (Form q Survey). As the names of the different forms suggest, a Form A Survey is focused on collecting feedback in relation to the course itself, whereas Forms B, C and D Surveys are focused on collecting feedback on the teaching of the courses. However, all four types of form contain up to 10 Rating Scale Items and the two Open-ended Items. ... A Form A Survey has 8 standard questions (questions 1-7 and 10) that form part of the survey each time the survey is administered, and 2 questions (questions 8 and 9) that can be varied. Forms B, C and D Surveys have 7 standard questions (questions 1-6 and 10) and 3 variable questions (questions 7, 8 and 9). ... Once students have submitted their completed CATEI surveys (either in hard copy form or online, as applicable), the completed surveys are provided to IARO for analysis and collation. IARO then uploads the data obtained from the surveys onto an internal UNSW database, and produces what is known as a CATEI 'summary report' (Summary Report). A Summary Report is usually a 1 or 2 page document ... In addition to producing the Summary Report, IARO also produces, in relation to each CATEI survey, a separate document that contains the 'free-form' comments (in an aggregated form) that have been provided by respondents to the 2 Open-ended Items in each survey (Student Comments'). ... Once a Summary Report is prepared by IARO, IARO sends an automated email to selected members of staff (who I refer to as Viewers) to inform them that they can access the applicable Summary Report and Student Comments document via the CATEI or myUNSW internet portal. The portal can only be accessed by Viewers using their unique staff login ID and password. ... The identity of Viewers is determined by the relevant School's CATEI administrator. The Summary Report and Student Comments document is only made available to the following Viewers: The UNSW course convenor for the relevant course and the School/Faculty CATEI administrator (in the case of CATEI Form A); and The UNSW lecturers/tutors who taught the courses that were evaluated in the particular survey (for CATEI Forms B, C and D). The relevant UNSW Head of School, Associate Dean (Education) and the Dean of the Faculty in which the course is taught and owned (who all form part of the course convenor's/tutor's/lecturer's line management), as well as any other Viewers from the School (School Viewers) or Faculty (Faculty Viewers) (generally Executive Officers to the Head of School, Associate Dean (Education) and the Dean) are also able to view Summary Reports and Student Comments that relate to courses taught and owned in their School or Faculty, however they may not necessarily be sent the documents as a matter of course. In addition, senior central administrative staff from the Division of Deputy Vice-Chancellor (Academic), IARO, and UNSW Learning and Teaching Unit are able to access and view all CATEI reports. In all cases: academic staff will have access only to CATEI survey data relating specifically to their course or teaching; Heads of School and School Viewers will only have access to data specific to courses and teachers within their School; and Deans, Associate Deans (Education), and Faculty Viewers will only have access to data specific to courses and teachers within their Faculty. In addition to staff members accessing CATEI data, a very small number of students are able to access a discrete amount of the data obtained from the answers to the Rating Scale Items in relation to Form A surveys, specifically those students who were enrolled in the relevant course that has been surveyed. Those students are only able to access the Summary Reports that relate to completed Form A Surveys (Form A Summary Report). The students are not able to access any Student Comments document relating to the course, and cannot access any Summary Reports or Student Comments relating to Forms B, C or D Surveys. Students are able to access the Form A Summary Report via their myUNSW account (which requires students to log in using their unique login ID and password). The Form A Summary Report is available for viewing by students of the course for a period of about 1 month after it has been prepared by IARO. 80Mr Scimone stated that he is of the view that disclosure of the CATEI information (except for the summary information in respect of Form A surveys to students who undertook the relevant course that is the subject of the survey) is likely to prejudice the frequency of the completion of CATEI surveys and therefore the provision of the feedback contained in them. In that way, the amount of information which informs how UNSW structures and improves its courses, and on which it liaises with its academic staff with a view to improving courses, may well decrease. 81Under cross-examination Mr Scimone stated that the 2012 CATEI Form A had been released in full. He stated that while he had given Ms Gibson the freehand comments, those comments have not been released. He accepted that it is possible that the CATEI information might be available from the internet. Professor Martin's evidence 82Professor Martin is the Vice-President and Deputy Vice-Chancellor (Academic) at UNSW. One of his accountabilities is to ensure that the quality of teaching and learning within UNSW is improved. 83Professor Martin stated that CATEI surveys provide one way that teaching is evaluated at UNSW. Through that process UNSW and its academic teaching staff are able to obtain voluntary and anonymous feedback from their students on the students' perception of the quality of their teaching and their courses. Its overall purpose is to facilitate enhancement of student learning through the continual improvement of courses and teaching. 84In his affidavit sworn 13 May 2013 Professor Martin stated: The information that is provided by students through the CATEI process is based on their perception of the quality of the course and its teaching, and is therefore highly subjective. Students are encouraged to give honest and open answers in response to the survey questions in the expectation that their answers will be treated confidentially and that they will not be able to be identified. Students are not restricted in any way in how they can respond to CATEI surveys. Whilst this is important to ensuring that the best possible feedback is given, it can and sometimes does mean that students provide comments that may be insulting and offensive to staff members and/or potentially defamatory of them. On occasion such comments include mention of other students. It can also mean that highly personal information is disclosed about teaching staff. For all of the above reasons, I believe that the data that is provided by students through the CATEI process should be treated as strictly confidential information and should only be accessible to those about whom the comments are being made or those within faculty senior management who have a role overseeing those people. I do not believe that the information should be made available to anyone other than the individual course convenors, individual teaching staff who are being evaluated, and their line management (namely the relevant Head of School, Associate Dean (Education) and Dean of the Faculty). However, I also think it is appropriate that students who undertook the relevant course that is being assessed are allowed to access summary statistical data about the course that is produced as a result of the CATEI process. But apart from that, and for the reasons set out above and below, I do not believe that those students (or anyone else, apart from those people I have identified above) should be allowed to access comments that have been made by students about the teaching staff of UNSW. Doing so is in my view counterproductive to the delivery of academic services by UNSW. I am of the view that (apart from the summary statistical data referred to above), if UNSW were required to make any of the information it obtains from students through the CATEI process publicly available (including available to students), it would be likely to have the following effects: It would prejudice the supply to UNSW of frank and honest answers by students, if they feel there is a risk that their comments might identify them. As a result, it could prejudice the effectiveness of the CATEI process and of UNSW's teaching functions, as UNSW's teaching functions are dependent on the continued feedback provided by students as part of the CATEI process for its improvement; It would result in the disclosure of information that has been provided by students to UNSW in the expectation that the information would be treated by UNSW confidentially; It would reveal confidential information about staff of UNSW, in the event that comments are made about staff in a Students Comments document that identify a member of staff; Given that UNSW staff members are identified by name in CATEI Forms B, C and D, disclosure of those forms would reveal the staff member's personal information. The Student Comments would also reveal opinions and other personal information about the staff members; A public disclosure of students' opinions about members of academic staff and their perceived abilities as teachers might also be prejudicial to the individual staff member's legitimate professional and other interests. This is because it may affect their ability to gain academic positions or promotions (either within UNSW or at other institutions), attract funding for their academic (including research) interests, collaborate with other academics and publish journals and other papers, which are all critical to an academic's livelihood; and I consider that disclosing CATEI information may compromise the ability of academic staff to most effectively work within the University environment, and therefore prejudice the effective exercise by UNSW of its core functions. 85In his affidavit sworn 4 June 2013 Professor Martin stated The University's approach to the information it obtains from students via the CATEI process is that it treats that information confidentially and does not, either as a routine matter or otherwise, disseminate that information to students (with the exception of the summary statistical data that is made available to students of a particular course ... or to the public at large. Nor does it make the information generally available within the University community. The fact that a very small number of CATEI-related material may have historically been made publicly available by what appears to be a very small number of UNSW academic staff should, in my view, be placed in the context of the University as a large academic institution that employs thousands of academic staff and offers a very large number of courses each year. The fact that certain academics may take the view that it is appropriate for them to make CATEI information relating to their courses or teaching publicly available does not change my view that the data that is provided to UNSW by students through the CATEI process should be treated by UNSW as confidential information. I believe the correct approach is that (with the exception of the summary statistical CATEI data that is made available to the students of a particular course) the information obtained by the University through the CATEI process should only be made accessible by the University to those who are responsible for running and teaching the courses that have been assessed and those within senior management who have a role overseeing those people. The purpose of the CATEI process is to obtain information that can then be used to improve the quality of UNSW's courses and the quality of UNSW's teaching. If an individual academic chooses to disclose to future students the results of past CATEI surveys (in a way that is not capable of identifying the students who provided the information) for the purpose of demonstrating how the lecturer will use the information to improve the quality of their courses and teaching, I do not believe that is inappropriate. However, the choice to disclose the information is and must be made solely by the individual academic concerned, not by the University, and to my knowledge only a very few academics choose to disclose the information. The results that are obtained by UNSW through the CATEI process are not used by UNSW as a disciplinary or ranking measure. Given that the information obtained through the CATEI process is based on students' subjective opinions about courses and teaching staff drawn from their own perceptions, I do not believe that it is appropriate that the comments and other data be used as a disciplinary measure. For the same reasons, I do not believe that it would be appropriate for the information to used by others to 'rank' teachers, and I believe this may result if the CATEI information were to become publicly accessible. 86In relation to the withheld emails, Professor Martin stated that he has reviewed each of those emails and that he supports the decision not to disclose them. He observed: In summary, the emails contain: Opinions expressed by several academics about individual students' (including but not limited to [AQJ's]) work and their progress in the course, and students' perceived ability to successfully complete the course. They represent consultation between staff about those issues. (I refer to an email from [Ms M] to [Ms S] dated 24 August 2012; I also refer to an email from [Ms S] to [Ms M] 24 August 2012 and an email from [Ms S] to [Ms M] dated 21 September 2012); A written update (dated 21 September 2012) provided by one academic ([Ms M]) to another ([Ms S]) following a meeting with [AQJ] and a request for advice on how to manage [AQJ's] progress in the course (I refer to an email from [Ms S] to [Ms C] dated 24 September 2012, and email from [Ms C] to [Ms S] dated 24 September 2012); A confidential opinion expressing an academics' preliminary view as to the mark that [AQJ] should receive in relation to an examination that he undertook as part of his course, based on the academies review of the work (I refer to an email from [Ms S] to [Ms C] dated 7 November 2012); Draft marks and comments contained in assessment sheets relating to items of assessment that had been submitted by [AQJ], and a request for additional comments (I refer to an email from [Ms S] to [Ms C] dated 11 December 2012); A confidential and detailed written summary of issues relating to [AQJ's] progress in [the course] sent in an email (attaching a document) from [Ms S] to [Ms C] dated 19 December 2012; Comments on how items of assessable work submitted by [AQJ] were assessed and in relation to communications between an academic staff member ([Ms C]) and the lawyer for [AQJ], about [AQJ's] academic progress (I refer to an email [Ms S] to [Ms C] and [Mr P] dated 21 December 2012; I also refer to an email from [Ms S] to [Ms C] dated 7 January 2013); and Comments and communications from academic staff to other academic staff in response to communications sent by [AQJ's] lawyer, for the purpose of informing a response to the lawyer (I refer to an email from [Ms S] to [Ms C] and [Mr P] dated 21 December 2012; I also refer to email from [Ms S] to [Ms C] dated 5 January 2013; I also refer to an email from [Mr F] to [Ms C] dated 14 January 2013). The assessment of students' work is a core part of the University's functions. Assessment is not carried out through an automated process, but by staff of the University applying their own education, knowledge, training and experience to the work that is submitted and evaluating whether or not it meets the assessment criteria for that piece of work. Confidential consultation and deliberation between staff are in my opinion a central part of that process. I believe it is an important part of the assessment process at UNSW that academic staff not only apply their own knowledge and perspective to individual assessment items, but also communicate with, and seek views from, other academic staff before they assess an individual student's work. Partly for this reason, students' work at UNSW is often assessed by a number of staff members forming a panel to perform a collective assessment of a student's work, especially for those assessments where students are required to make verbal presentations of their work. The deliberative process that takes place when academics discuss and provide their own comments on students' work is important as it ensures that individual viewpoints are tested and allows for more than just one perspective to be given to a student's work and more than one just one critique to be applied to it. For this reason, anything that may potentially prevent or hinder that deliberative process could critically affect the quality and outcomes of student assessment. I consider that academic staff of UNSW should be allowed to freely and professionally express and seek opinions about students' progress, their preliminary views of the marks students should attain for assessments and their view of students' ability, in the expectation that those views will be communicated and treated in confidence. If such views and opinions were to be made publicly available, I believe it would have the potential to result in a less rigorous deliberative process. Further it will discourage academics from engaging in such a process in the first place, which in my opinion would be detrimental to academic standards at UNSW. Based on my experience, I also believe that it is important to the effective functioning of the University that academic staff members be allowed to provide advice to their colleagues for the purpose of informing responses to students and their representatives, in the expectation that such views will be treated confidentially and will not be subject to public exposure. If there is a risk that such advice might be disclosed, this may have the effect of making staff members reluctant to express their views and provide assistance to their colleagues when such assistance is requested. That outcome would also in my view be detrimental to the delivery of student outcomes within UNSW environment. 87In his affidavit sworn 4 June 2013 Professor Martin stated I have reviewed each of the emails that UNSW has withheld from disclosure to the applicant in respect of his GIPA Application. In my view, there is nothing in the emails to show that the applicant was treated inappropriately by the academic members of staff of the Faculty ... Rather, they show evidence of professional consideration of the performance of both the applicant and the other students of the course as a whole. 88Under cross-examination Professor Martin stated that he considered the factors in favour of release of the withheld material. In his opinion material relating to a student's grades should be released. He further stated that he is of the view that the Applicant should have access to the material he seeks unless the release would interfere with the proper operation of the university. The emails in issue involved discussion about the academic performance of the class. Professor Martin stated that he considered that in setting assessment and standards it is important that academics can discuss class performance. 89Professor Martin agreed that the Applicant's concerns relating to an allegation of plagiarism was a factor in favour of disclosure of documents relating to that issue. He acknowledged that some CATEI forms from 2012 have been released to students and accepted that it is probable that the students who had received that information would have disclosed it to others. However, he did not accept that the information should be released to the Applicant. He stated that it is necessary to have a consistent approach with respect to quality control. In his opinion it is important to act in accordance with the agreement that was reached with the academic staff and students. He maintains this view notwithstanding the possibility that the information may be readily obtained by an internet search. 90Professor Martin agreed that information should be released unless there is a good reason to not release it. He contends that the Respondent has established that good reasons exist to not release the withheld material. Mr Sheehy's evidence 91Mr Sheehy is employed by UNSW as an Assistant University Solicitor in UNSW's Legal Office. In that position he provides advice in the capacity of an in-house legal counsel. Throughout his employment with UNSW, he has held a current practicing certificate and has been entitled to practice as a solicitor in NSW. 92In his affidavit sworn on 28 May 2013 Mr Sheehy stated that from time to time he receives direct requests for advice from University employees in relation to legal issues affecting the University, its staff, and/or its students. He receives instructions from both academic and non-academic employees of the University. 93In relation to the conduct of his legal practice Mr Sheehy stated: I see my role as Assistant University Solicitor to provide independent and professional legal advice to UNSW and to manage, in an independent way, litigation for UNSW. I am conscious of my ethical obligations as a solicitor in the giving of advice to UNSW and in the conduct of litigation for UNSW. I carry out my role on the basis that: I am an officer of, and owe duties to, the Supreme Court of New South Wales. I am required to be professionally detached in the giving of advice to UNSW and in the conduct of litigation for UNSW. The legal advice I give is confidential to UNSW and subject to legal professional privilege. For this reason, I will often (but not always) write "Privileged and Confidential" on documents and emails I create, and sometimes advise recipients not to forward the document or email to anyone outside of UNSW. I am to give legal advice to UNSW in the same way as an external lawyer would provide legal advice to UNSW. My employment with UNSW does not influence the nature or content of legal advice I give to UNSW. I do not regard my employment as being in jeopardy if I was to give advice to UNSW that was contrary to the wishes of UNSW (although such a circumstance has not arisen in my employment with UNSW). In my role as Assistant University Solicitor I do not make (and have not made) commercial or operational decisions in light of the advice I give to UNSW or the litigation I manage for UNSW. It is the responsibility of those employees to whom I give the relevant advice to make such decisions. The Legal Office opens and maintains its own files in relation to the matters upon which it provides advice (Legal Files). When such Legal Files are opened, they are marked as 'Restricted - Legal-in-Confidence'. Access to the documents that are contained in Legal Files is restricted to persons who work within the Legal Office (as well as members of UNSW's Records and Archives Office, for administrative purposes). 94In relation to the instructions he received from Ms C, Mr Sheehy stated: On or about 10 January 2013, I was contacted by telephone by a woman who identified herself as [Ms C]. She said words to the effect that she needed some advice from the Legal Office in relation to a matter involving a UNSW student (whom she identified as the applicant), and requested a meeting with me to discuss the same. We arranged to meet later that day. Shortly following her telephone call, she sent me an email which contained some background information for me to review ahead of our meeting later that day. Later on or about the same day, I had a meeting with [Ms C] in my office, during which she sought and I provided advice to her on various matters relating to legal aspects of her dealings with the applicant and the lawyer who was acting on his behalf. From on or about 11 January to on or about 14 January 2013, I exchanged numerous emails with [Ms C] in relation to the matters upon which she sought my advice. The emails contained either legal advice I provided to [Ms C] or requests for legal advice from her. ... In providing advice to [Ms C] in respect of the matter involving the applicant, I did so in my capacity as the Assistant University Solicitor ... Shortly after providing the advice to [Ms C] referred to above, I caused a Legal File to be opened in relation to the advice I had given to [Ms C], and the documents and communications that related to that advice were thereafter placed on that Legal File. 95In relation to the instructions he received from the SCAO, Mr Sheehy stated: On or about 22 January 2013, I attended a meeting with Ms Kirby [the head of UNSW's Legal Office] and Mr Ken Bright in Ms Kirby's office. I am aware that Mr Bright is the University's Student Conduct and Appeals Officer (SCAO). During the meeting, Mr Bright informed Ms Kirby and I that a complaint had been made by the applicant under the University's Student Complaint Procedure (Student Complaint). I recall that at or shortly after that meeting Mr Bright showed me a copy of a letter that had been sent to him by Mr Luke Aiken of Thomsons Lawyers dated 16 January 2013, which set out the Student Complaint. In or about the period 22 January to 21 February 2013, Mr Bright requested advice from Ms Kirby and I for the purpose of his investigation of the Student Complaint. Mr Bright also requested advice from Ms Kirby and I for the purpose of responding to communications he had received from Mr Aiken as part of that investigation. I provided legal advice to Mr Bright in response to his requests in that context. That advice was either in an oral form or contained in emails I sent to Mr Bright. ... In providing advice to Mr Bright in respect of the Student Complaint, I did so in my capacity as the Assistant University Solicitor and on the basis set out [above]. Shortly after they were created, I caused my versions of the documents and communications that related to the advice requested by and provided to Mr Bright in respect of the Student Complaint to be placed on the Legal File I had opened after being consulted by [Ms C]. 96Mr Sheehy identified a number of emails which fall within the scope of the Applicant's access applications and which Mr Sheehy asserts are subject to legal privilege. He stated that the documents include a number of emails received or sent by either Mr Sheehy or Ms Kirby in the context of providing advice to Ms C and Mr Bright. To his knowledge, none of the privileged emails have been disclosed to the Applicant, or to anyone outside of UNSW. 97Mr Sheehy noted that although it is possible to be done, seeking to redact all of the privileged communications that appear in those documents, and leaving the non-privileged communications, would render the documents devoid of meaningful content, or would result in the further disclosure of material that has already been provided to the Applicant. 98In relation to the withheld privileged communications, Mr Sheehy identified the subject matter of the communication and the basis of the privilege claim. The reasons he provided for the claim included the assertion that the communication contains: * a request for legal advice and a summary of previous advice; * a request for legal advice; * a request for legal advice and legal advice ; * a response to a request for advice; * a response to a request for legal advice and draft correspondence; * legal advice; * legal advice and draft correspondence; * legal advice, a response to legal advice and further information; or * information provided for the purpose of obtaining legal advice 99In respect of those email threads already provided to the Applicant, Mr Sheehy noted that the privileged communications contained in them were redacted prior to disclosure to the Applicant. Only the non-privileged parts of the email threads have been disclosed. Mr Sheehy stated that in those cases, it was possible to produce the emails in a redacted form without depriving the remaining, non-privileged, content of particular substantive meaning in the context of these proceedings. He identified the redacted material by reference to the withheld privileged communications. 100Mr Sheehy noted that the Applicant's solicitor had advised him that the Applicant challenges the University's claim for legal professional privilege. In relation to that issue, Mr Sheehy was required for cross-examination. He oversees the evaluation of academic staff performance and promotion at UNSW. 101Under cross-examination Mr Sheehy agreed that some of the withheld material in relation to which legal privilege has been asserted contain advice about procedures but stated that they did not contain advice about policy. He stated that he had given advice to Ms C in relation to legal issues relevant to her response to the Applicant's solicitor. These included considerations regarding privacy legislation. 102Mr Sheehy agreed that he had provided advice to Mr Bright and also agreed that Mr Bright was conducting an independent review. However he denied that any conflict existed because the advice he had provided to Mr Bright was in a different context. 103Mr Sheehy agreed that he had he had provided advice for mixed purposes and that in his affidavit he had not given evidence that the dominant purpose was legal. The Respondent's submissions 104Mr McLeod provided written submissions and also made oral submissions in relation to the evidence given at the hearing. 105Mr McLeod submitted that the task of the Tribunal is to determine whether the Respondent has discharged the burden to establish that the factors against disclosure outweigh those in favour of release of the withheld information. 106He submits that the public interest in disclosure is limited. It concerns one student and one subject and involves sensitive information of that one student. 107In relation to the withheld material in relation to which legal privilege has been asserted Mr McLeod submitted that the Tribunal should accept Mr Sheehy as a witness of truth and should be satisfied that the dominant purpose was the giving of legal advice. He submitted that Mr Sheehy's evidence was to provide the context in which the material was created. It is not necessary that he identify the dominant purpose. He submitted that the legal privilege claim is made out and that the legal privilege has not been waived. 108In his written submissions Mr McLeod submitted: UNSW's position is that the privileged nature of the 21 communications withheld based on its claim for legal professional privilege is self-evident from an inspection of those documents. It contends that with reference to the parties to those communications, their nature, and the circumstances in which they were made, it is plain that a proper claim for legal professional privilege has been made in respect of those documents. Accordingly, the conclusive presumption of overriding public interest against disclosure pursuant to clause 5 of Schedule 1 of the GIPA Act applies to those documents. Again, the claim relates to 21 documents, and if the challenge to the claim is pressed, it is not anticipated that the issue will be a difficult one for the Tribunal to resolve once it inspects the relevant documentation in the light of the evidence. ... UNSW's position is that the documents are plainly subject to a proper claim of legal professional privilege by UNSW, and therefore that the conclusive presumption against disclosure contained in clause 5 of Schedule 1 to the GIPA Act applies. 109In relation to the withheld emails, Mr McLeod submitted that Professor Martin's evidence goes to the Respondent's position that academic consultation is important in a situation where a student's performance is borderline. Professor Martin's evidence identified the boundaries of what material should be released. The Respondent's position is that transparency is preferable but where there is good reason to withhold material it should not be released. 110In his written submissions Mr McLeod submitted: ... if the Staff Emails in fact contain consultation or deliberation in relation to the progress of a student (as UNSW contend they do), the parties to them are self-evidently involved in providing academic services in the Faculty in which the applicant is a student. UNSW contends that in relation to the Staff Emails and an application of the required balancing exercise, any interest in disclosure is significantly outweighed by the factors weighing against disclosure. In relation to the former, it is conceded that, as identified in the decision of Ms Gibson on the first GIPA application dated 4 March 2013, self-evidently, disclosure of the documents may be justified on the basis that "disclosure would contribute to transparency in the University's processes for managing student progress and assessment". However, with reference to the factors set out in the section 14 table, and balancing those factors against those in favour of disclosure, it is plain that overall, the relevant factors weigh significantly against disclosure of this material. In particular, UNSW relies on the factors set out in clauses 1(e) and 1(f) of the section 14 table, namely: Clause 1(e) - reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; and Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions. A review of the Staff Emails reveals private and confidential exchanges between staff about the academic progress of the applicant (and in three cases other students), and also (in respect of a small number of them) about the most appropriate way in which to respond to enquiries made on his behalf by his legal representative. They are the very types of communications that, by their nature, are vital to be kept confidential and not be subject to student disclosure in order to avoid compromising the process of deliberation and consultation between academic staff at a tertiary institution. It is UNSW's position that, as confirmed by the affidavit of Professor Martin (and the reasons set out by Ms Gibson in respect of the Part 2 documents), disclosure of communications such as those recorded in the Staff Emails (including but not limited to a scenario where or in which the academic progress of a student is in issue) would compromise the very deliberative and consultative process which is at the heart of delivering student outcomes in a tertiary academic environment. Specifically with reference to clause 1(f) of the section 14 table, not only would disclosure of the Staff Emails undermine the consultative process, but, in doing so, it would prejudice the effective exercise of the ultimate core function which an academic institution is charged with delivering - namely, the delivery of academic services with a view to properly equipping students with the skills required in a chosen field to embark on working life. It is submitted that a logical reading of the Staff Emails in the light of the statutory scheme set out in the GIPA Act results in the balancing factors weighing heavily in favour of nondisclosure of Staff Emails. In assessing the Staff Emails against the GIPA Act, one should take a common sense approach and be mindful that it is of course a reality of University life that from time to time, students will be aggrieved by certain decisions affecting their academic progress, and seek to review them. Importantly, there is a process for that. Following a process of further consultation and deliberation between academic staff, a student may remain in strong disagreement with an outcome - that has happened in the instant case in relation to the applicant's enrolment in [the course]. Importantly however, the GIPA Act removes emotion from decisions in relation to disclosure by requiring that the decision must be made within an objective framework proscribed by the GIPA Act in which the decision maker is required to assess all of the relevant factors which objectively bear either for or against disclosure in applying the public interest test (with the factors against being confined to those set out in the section 14 table). When that exercise is completed in relation to the Staff Emails, particularly in the context of the affidavits of Professor Martin (the second most senior administrator at UNSW) and Ms Gibson, it is plain that the factors against disclosure of the Staff Emails outweigh the factors in favour of it. It is submitted that the application for the remaining contentious documents should be dismissed. 111Mr McLeod submitted that the withheld CATEI material contains the personal information of the academics and that the release of the material would give a level of validity that was above that applicable to information available through Facebook, Twitter and other social media sources. 112In his written submissions Mr McLeod submitted: In Ms Gibson's decision in relation to the Part 1 CATEI documents, she identified two factors in favour of disclosure, being: that disclosure may contribute to public discussion of student perceptions regarding their learning experience; and that disclosure may contribute to the public discussion of the performance of students. The factors that she considered ultimately outweighed those in favour of disclosure are those which are set out in clauses 1(d), 1(f), 1(g), 1(h), clause 3 (a), 3(b) and 4(d) of the section 14 table. UNSW particularly relies on clauses 1(d), 1(f), 1(g) and 3(a), namely: Clause 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions; Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions; Claude 1(g) - found an action against an agency for breach of confidence or otherwise result in disclosure of information provided to an agency in confidence; and Clause 3(a) - reveal an individual's personal information. ... Mr Scimone identifies that a central concern is the risk that disclosure will compromise the confidential basis on which students complete CATEI surveys, and therefore decrease the level of information that UNSW receives by way of feedback. ... Professor Martin also provides evidence of the importance of CATEI information and its role in delivering student outcomes ... He identifies a number of factors as to its importance and in relation to his concerns if the information is disclosed, including that: he, like Mr Scimone, recognises that unless the specific student feedback can be provided without fear of disclosure, there is a risk that the information will not be provided as readily; he draws the logical link between the delivery of UNSW's ability to collect that information and the delivery of student outcomes, because the information assists UNSW to improve and enhance the delivery of academic services; and he identifies the prejudicial effect on UNSW and its staff if the identities of staff members and comments about them are publicised and distributed amongst the University community (including the student population) and/or potentially to the public ... Significantly, the affidavits of Professor Martin and Mr Scimone disclose that CATEI surveys are provided to students and answered by them on the basis that they are to be completed and treated confidentially. As to that, the email which is sent to students inviting them to complete the survey includes the following content: Dear Student, Course and Teaching Evaluations are a vital part of the University of New South Wales strategy to provide an excellent standard of teaching. It enables to monitor the impact of their teaching and it informs their efforts to improve student learning. ... Please be assured that all individual responses to the surveys are confidential and will only be reported in aggregated form. Your individual responses cannot be identified. ... With thanks in anticipation, Professor lain Martin Deputy Vice-Chancellor (Academic) Plainly, and with reference to clause 1(g) of the s 14 table, the information provided in response to the CATEI surveys is done in confidence, and the fact that disclosure would be contrary to that is a further particular factor weighing against disclosure of the CATEI information that UNSW has not disclosed. Further, a large amount of information is provided in "free-form" responses, meaning specific comments by individuals about academic staff (whose identities are apparent in Form B, C and D CATEI reports) are provided. In the above setting, it is submitted the disclosure of the Form A consolidated statistical information, but not the balance of the Form A, B, C and D CATEI information, strikes the right balance in respect of disclosure of CATEI information. A student who undertakes a relevant course is able to have access as to a body of statistics about student appraisals of that course, but not see what others have said about an individual academic staff member (that information being reserved for those in senior academic positions and/or within the relevant faculty in the University). As to that, the logical basis for the disclosure of the Form A consolidated information, but not information derived from Forms B, C, or D (or the freeform Form A information) is grounded in a distinction Mr Scimone identifies in paragraph 20 of his affidavit, namely that Forms B, C and D information relates to information specific to UNSW's lecturers and tutors, whereas Form A information is in respect of a course as a whole (albeit that in raising the course has a whole, the Form A free-form answers have scope for specific responses to be provided about academics who teach in the relevant course). Further, Forms B, C and D typically identify (often in pre-populated form) the particular academic in relation to whom the comments are received. The names of the academics can also be disclosed in the students' answers to the free-form questions as there is no restriction on what students can say in response to those questions. It is also significant that once it is provided to UNSW by students, there is very limited disclosure of the CATEI information by UNSW, and that UNSW has procedures in place to preserve the limitations on the publication and distribution of that information. The summary statistical Form A data can only be accessed by students in the course that the information relates to, only through password protected access, and it is only made available to students for around 1 month: see paragraph 21 of the Scimone affidavit. Apart from that, it is only certain staff and senior management with a connection to the course under consideration who have access to the information. It is in the above context that UNSW contends that the section 14 table factors contained in clauses 1(d), 1(f), 1(g) and 3(a) outweigh any relevant factors in support of disclosing that information. The particular concern with the clause 3(a) factor (in relation to the potential to reveal personal information) is a concern not just with the disclosure of a student's identity, but importantly, the disclosure to the broader community (and the student population) of information in relation to academics which is provided subjectively and without being tested. Plainly, UNSW is operating in an environment where the delivery of its service should be able to be informed by the provision, without fear of disclosure, of certain specific information in relation to its academic staff. In the light of the factors referred to above, the nondisclosure of the Form B, C and D information and the Form A free-form information is appropriate in the context of the evidence of Professor Martin and Mr Scimone, and bearing in mind the statutory scheme against which it should be assessed. The application for the remaining Part 1 documents should be dismissed. Consideration 113As noted above, the issues which remain in dispute concern: i. CATEI survey information; ii. withheld emails; iii. documents subject to a claim of legal privilege CATEI survey information 114It is not in dispute that the CATEI survey information facilitates the effective exercise of UNSW's functions. CATEI surveys are designed to provide course feedback. They provide a means by which UNSW can gather student opinions. Students are not restricted from providing opinions about their teachers. CATEI surveys provide one way that teaching is evaluated at UNSW. Its overall purpose is to facilitate enhancement of student learning through improvement of courses and teaching thereby giving UNSW a competitive advantage. 115A number of factors have been identified in favour of disclosure of the CATEI survey information. It is common ground that disclosure of the information may contribute to the public discussion of student perceptions regarding their learning experiences in the courses. This could be of benefit to UNSW students considering undertaking the courses and also to students who are considering attending UNSW. A number of personal factor particular to the Applicant have been identified and I am able to take these into account pursuant to section 55 of the GIPA Act. The Applicant has also identified the probability that at least some of the CATEI information that is sought has already been provided to some students and has made its way into social media outlets. I agree that this is also a factor in favour of disclosure of the CATEI survey information. 116The public interest considerations against disclosure are those set out in the table to section 14 of the GIPA Act. These are not conclusively presumed to give rise to an overriding public interest against disclosure. The Respondent has pointed to a number of considerations against disclosure. In particular it relies on the confidential nature of the CATEI survey process and asserts that disclosure of the information could result in the disclosure of information provided in confidence and could prejudice the supply of the information. The Respondent further contends that the information might be defamatory, and disclosure might be damaging to the reputation and to the business or professional interests of the teachers and of the University. 117I accept that if made out, these are factors for considerations against disclosure. 118In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] and [25], the Appeal Panel noted the structured approach within the GIPA Act to the question of whether an agency has properly refused acess. In that regard the Appeal Panel said the following: 24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 119If the Tribunal is satisfied that one or more of the public interest considerations against disclosure in the table to section 14 applies to the information in issue, it must weigh those factors against the public interest considerations in favour of disclosure, to ascertain where the balance lies. In doing so, the Tribunal must have regard to the general public interest in favour of disclosure in subsection 12(1) and the requirements of section 15. 120Ultimately, in determining where the balance lies between the competing interests, it 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation': see Hurst v Wagga Wagga City Council [at [70]. 121These requirements were recently considered by Deputy President Higgins in Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252. The Deputy President stated at paragraphs [56] - [68]: 56 The public interest considerations against disclosure - generally As set out above, the public interest considerations in cl 1 and cl 4 of the table to subs 14(2) of the GIPA Act are predicated with the words - 'could reasonably be expected to' have the prescribed effect as set out in one or more of the paragraphs in each clause. It is accepted that these words are to be given their ordinary meaning and 'require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous': see Attorney-General's Department v Cockcroft (1986) 10 FCR180, 64 ALR, per Bowen CJ and Beaumont J, at 190 and 106, as applied in McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61], Re Lobo and Department of Immigration and Citizenship (2011) 124 ALD 238, at [62] to [64] and [74], Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [146], Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [56] and [57] and Woodhouse v City of Sydney Council [2012] NSWADT 95 at [32] to [34]. 57 The abovementioned remarks of Bowen CJ and Beaumont J, in Cockcroft (supra), have been widely accepted. However, it is instructive to repeat their observations in full: [In] our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs (1985) 159 CLR 550 ; 62 ALR 321 per Gibbs CJ and Mason J). The majority of the Tribunal thought that an assessment of what was more probable than than not was called for. As Woodward J has pointed out, there are difficulties in this approach for the legislature has chosen not to introduce the notion of a "probable" result (cf Ex parte White; In re White (1985) 14 QBD 600). It is also unnecessary to consider whether an "even chance" or something of that kind is needed. It is preferable to confine oneself to the language of the provision itself and to attempt to form an opinion, on the evidence, as to what can reasonably be expected to happen if disclosure occurs. In our opinion, in departing from the terms of s 43(1)(c)(ii) and requiring the applicants to establish a case on the balance of probabilities, the majority of the Tribunal fell into error in their construction of the provision. [bold emphasis added] 58 In the same decision, at p 196, Sheppard J made the following remark: ... stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information. 59 Although Cockcroft (supra), concerned the meaning of the term in the context of s 43(1)(c)(ii) of the Commonwealth Freedom of Information Act 1982, (FOI Act (Cth)), as I have indicated above, it has been accepted that the term, as used in other exemptions in that Act, the exemptions in Schedule 1 of the former NSW Freedom of Information Act 1989 (FOI Act (repealed)) and in the table to subs 14(2) of the GIPA Act, have the same meaning. 60 Cockcroft's (supra) case was considered and applied in Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111, 108 ALR 163. At 176, after reciting the abovementioned paragraphs from the decision in Cockcroft, the Court (per Davies, Wilcox and Einfeld JJ) said: Their Honours did not suggest, as was submitted by Mr Bayne, that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words "could reasonably be expected" meant what they said. The practical application of their Honours' view will not necessarily lead to a result different from that proposed by Sheppard J. In the application of s 43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable. ... ... the question under s 43(1)(b) is not whether there is a reasonable basis for a claim for exemption but whether the commercial value of the information could reasonably be expected to be destroyed or diminished if it were disclosed. These two questions are different. The decision-maker is concerned, not with the reasonableness of the claimant's behaviour, but with the effect of disclosure. ... 61 In my view, the approach adopted by their Honours above, remains the correct approach in determining whether the disclosure of information 'could reasonably be expected to' have one or more of the effects as prescribed in the clauses in the table to subs 14(2) of the GIPA Act. That is, the inquiry is not whether the occurrence of the prescribed effect is likely, possible or probable. The inquiry is whether the expectation of the claimed effect is reasonably based (cf the approach in Nature Conservation Council (supra), at [179]). 62 The public interest considerations in favour of disclosure examples in subs 12(2), I note, are also predicated with the words 'could reasonably be expected' to 'promote', 'enhance', inform' and 'insure' public discussion, Government accountability etc. The term 'could reasonably be expected' in this context must have the same meaning. 63 Clause 1(d) prejudice supply of confidential information In Camilleri (supra) at [27] to [33], the Appeal Panel considered the operation of the public interest consideration against disclosure in cl 1(d) of the table of subs 14(2) of the GIPA Act and said the following: 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). ... 28 In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), 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. ... 30 ... 31 In this case the Tribunal was required to form an opinion on whether disclosure of the information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(d)); or, ... 32 ... 33 In our view, 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. ... 64 As outlined above, for the cl 1(d) public interest consideration to apply, the information in issue must not only be 'confidential information', it must also be information that facilitates the effective exercise of that agency's functions. 65 The Tribunal has accepted that the word 'prejudice', in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: 'to cause detriment or disadvantage': see Hurst (supra) at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41. 66 Clause 1(e) reveal an opinion, advice, or recommendation so as to prejudice a deliberative process of government or an agency ... 67 In order for this public interest consideration against disclosure to apply, it is necessary to establish a connection between the particular opinion, advice or recommendation and the relevant deliberative process of the agency: see Van der Wall v University of Sydney [2008] NSWADT 213 at [36] and Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58] to [61]. 68 Clause 1(g) disclose information provided to the agency in confidence It is well established that even where information has not expressly been provided to an agency in confidence, this can be inferred from the circumstances in which it was provided. ... 122In the circumstances of this matter I accept that provision of the CATEI information facilitates the effective exercise of UNSW's functions. I also accept that students provide the CATEI information in confidence. While it appears that individual teachers may differ in the view that they take and the use to which they put the CATEI information, the Respondent's public representation to students is an assurance that all individual responses to the surveys are confidential. 123I also accept that the Respondent's policy is that there is to be very limited disclosure of the CATEI information. 124In my view, the publication and distribution of the CATEI information could reasonably be expected to prejudice the supply of information by students in the future, as they would no longer regard the survey process as confidential. That being the case it is reasonable to expect that students may be more guarded in the comments that they make than if they understood the process to be confidential. This is turn could reasonably be expected to prejudice the effective exercise of the agency's functions in that it could impact upon a useful mechanism for obtaining feedback from students and the benefits that flow from obtaining that information. 125If the CATEI information were released to the Applicant, no restriction can be placed on the uses to which he puts it. I am satisfied that that the section 14 table factors contained in clauses 1(d), 1(f), 1(g) would be made out if the CATEI information were published and distributed. 126I accept that the CATEI information contains the personal information of some academics and students i.e. students' opinions about members of academic staff and their perceived abilities as teachers. I also accept that disclosure of the information could reasonably be expected to reveal an individual's personal information. 127On balance, it is my view that there are public interest considerations against disclosure and that those considerations outweigh the public interest considerations in favour of disclosure in the form requested by the Applicant i.e. a copy of the CATEI information. 128However, it is also my view that the balance would not be against disclosure if the Applicant were given access to view the CATEI information rather than given a copy of the information. 129Section 72 the GIPA Act makes provision for the form in which access can be provided. That section is in the following terms: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, ... 130Section 73 provides that where a decision is made to grant access to government information, subject to the prescribed exceptions, that access is unconditional. However, subsection 73(2) provides: (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. 131In my view, if access were granted on an inspection basis, with no right to obtain a copy of the CATEI information, while an individual's personal information might be revealed, to a significant extent the confidentiality of the information would be protected. 132That form of access would satisfy the Applicant's purpose in seeking the information and would also preserve the limitations on the publication and distribution of that information. It should meet the Respondent's concern to not jeopardise confidentiality of the CATEI survey process and should not impact adversely on the University's competitive advantage. 133The Applicant and/or his legal representative are to be given a reasonable opportunity to inspect the withheld CATEI information in a manner that does not permit the copying of that information. The withheld emails 134The Respondent contends that the public interest considerations in favour of disclosure of the withheld emails are outweighed by the public interest considerations against disclosure. 135A number of factors have been identified in favour of disclosure of the withheld emails. The parties to the emails are involved in providing academic services in the faculty in which the Applicant is a student. It is common ground that disclosure would contribute to transparency in the University's processes for managing student progress and assessment. 136As noted above, number of personal factor particular to the Applicant have been identified and I am able to take these into account pursuant to section 55 of the GIPA Act. The possibility that the emails may include exchanges between staff teaching and assessing the Applicant, which may touch upon or reveal the staffs' perceptions of the Applicant and may have affected his assessment is a factor in favour of disclosure. Disclosure might support or displace the Applicant's contention that the Respondent has treated him unfairly. 137The Applicant has referred to Mr Serov's determination that the Applicant may have access to the 'Complaint File', which includes withheld emails. The Applicant contends that this is a factor in favour of disclosure of the emails. 138In relation to the Respondent's assertion that disclosure of the emails might prejudice a deliberative process, it is relevant that the alleged 'deliberation or consultation' conducted has concluded. 139The Applicant has referred to the Respondent's assessment procedures and contends that there is no policy or procedure that permits consultation and deliberation between staff. The possibility that the emails may reveal assessment policies and procedures that have been adopted and which differ from the published policies and procedures is a factor in favour of disclosure of the emails. 140The Respondent identified a number of factors that it contends are to be weighed against disclosure of the emails. In particular, UNSW relies on the factors set out in clauses 1(e) and 1(f) of the table to section 14. 141It is UNSW's position that disclosure of the emails would compromise the deliberative and consultative process that is at the heart of delivering student outcomes. It contends that disclosure would also prejudice the effective exercise of the core function of delivering academic services. 142Professor Martin's evidence provides a summary of the content of the emails. He also expressed an opinion as to the deliberative process that takes place when academics discuss and comments on students' work. It is his view that disclosure of the opinions of the academics may potentially prevent or hinder that deliberative process and could affect the quality and outcomes of student assessment. He believes that a less rigorous deliberative process could result if such views and opinions were to be made publicly available. He also believes that it would discourage academics from engaging in such a process in the first place. Staff members might be reluctant to express their views and provide assistance to their colleagues when such assistance is requested, and that would be detrimental to academic standards at UNSW. 143I accept that these are public interest considerations against disclosure. 144I do not accept that disclosure of the emails could prejudice a deliberative process, as that process has concluded. However, I do accept that the disclosure could reasonably be expected to prejudice the effective exercise UNSW's functions. In my view, it is reasonable to expect that academics might be reluctant to express their views and provide assistance to their colleagues if they were aware that those views and comments could be made publicly. Failure to comply with assessment policies is not a matter before this Tribunal and I make no further comment in relation to that assertion. 145In my opinion Professor Martin has provided a reasonable summary of the content of the emails. As will be apparent from that summary, the content of the emails would not assist the Applicant in ascertaining how his work was assessed. 146On balance, it is my view that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the withheld emails. 147It follows, in my view, that the decision to refuse access to the withheld emails was the correct and preferable decision. Documents subject to a claim of legal privilege 148Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure. Included in clause 5 of this Schedule is information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) unless the person in whose favour the privilege exists has waived the privilege. 149In the present case the Respondent's privilege claim is based on an asserted legal advice privilege. 150Legal professional privilege arises from a lawyer/client relationship and applies to "confidential communications" between the lawyer (as legal advisor) and the client where the dominant purpose of the communication is either to enable the legal advisor to give or the client to receive legal advice; or to be used in pending or contemplated proceedings. See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 as affirmed in Daniels Corp International Pty Limited v Australia Competition & Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543. 151The privilege extends to advice which is of a non-legal character where that non-legal advice is connected to the giving of legal advice or for contemplated or pending litigation and to copies of documents that are not privileged where the copy is made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation (see Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509, 550, 597). 152The privilege applies to confidential communications between government agencies and their salaried legal officers provided they have the necessary degree of independence (see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62 and 73). 153As set out in Chan v Department of Education and Training (GD) [2010] NSWADTAP 7: 'The agency carries the onus of proof in establishing that documents are exempt on the ground of legal professional privilege under s 61 of the FOI Act: 'the burden of establishing that the determination is justified lies on the agency'. As Graham J said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445: 'It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence [various authorities cited].' It is necessary to establish that in-house legal staff had the requisite degree of independence to bring the affected documents within the purview of privilege, having regard to the principles laid down by the High Court in Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54. While Gibbs CJ in Attorney General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 510 was inclined to the view that the privilege could only be claimed by a lawyer who has been admitted to practice, the law is now clear that the privilege does extend a situation where a non-qualified person, such as a law clerk, is giving advice subject to the supervision of a practitioner: see, for example, Glengallan Inv P/L & Ors v Arthur Andersen & Ors; Equuscorp P/L & Anor v Glengallan Inv P/L [2001] QCA 115; [2002] 1 Qd R 233 per Williams JA at [19]; see also, Southern Cross Commodities Pty Ltd (In Liq) v Crinis [1984] VR 697 (Young CJ). 154I recently considered clause 5 of Schedule 1 to the GIPA Act in Hargreaves v University of New England [2013] NSWADT 233. In that matter I noted at paragraph [18] The question arises as to whether the common law or the Evidence Act 1995 provisions apply. Judicial Member Molony considered this issue in the matter of Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and more recently in Colefax v Department of Education and Communities [2013] NSWADT 75. In Colefax v Department of Education and Communities he stated: 24 In Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 the Appeal Panel held that legal professional privilege for purpose of the Freedom of Information Act 1987 was legal professional privilege at common law, rather than client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 I found that given the subsequent enactment of s 131A of the Evidence Act that, at [70] - ... the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege. That conclusion is not one with which all other members of the Tribunal have agreed: see for example McGuirk v University of New South Wales [2011] NSWADT 169. 25 Since the commencement of the GIPA Act there have been a number of decisions dealing with the issue of client legal privilege, in which the issue of whether the common law or Evidence Act provisions apply has not been addressed. This is so because the conclusion would have been the same no matter which law was applied. 26 For myself, I consider that the question of whether or not information is privileged from production in legal proceedings on the ground of client legal privilege is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995. This is so for the reasons I gave in Fitzpatrick and because the legislature in the GIPA Act has specifically referred to the term " client legal privilege," which is that used in the Evidence Act. In contrast, the Freedom of Information Act 1987 used the term legal professional privilege. The use of the Evidence Act terminology in my view evidences an intention that those provisions apply. 155As I noted in Hargreaves, I agree with that view. In the circumstances of this matter my conclusion would have been the same no matter which law is applied. 156In the present matter I have been provided copies of the documents that are the subject of the claim. 157The issue arose in regard to whether Mr Sheehy, as an in-house solicitor, had the requisite degree of independence to bring the affected documents within the purview of privilege. On the evidence before me I have no doubt that Mr Sheehy had the requisite degree of independence. It is clear from the documents that he was providing advice in a solicitor - client relationship. In my view, that was the case in regard to Mr Bright, notwithstanding the independent functions of the SCAO. The SCAO is a unit within UNSW and as such Mr Bright was entitled to access the services of UNSW's Legal Office. If any privilege attaches to the advice he received, then the Respondent is entitled to assert a claim of legal privilege. 158I have considered the copies of the documents that are the subject of the claim. In my view they clearly fall within the scope of section 118 of the Evidence Act 1995. In my view, it is information to which legal professional privilege applies. 159If I am wrong that the Respondent is entitled to assert a claim of legal privilege over SCAO documents and in fact the SCAO is the client, then access application seeking information held by the SCAO would be properly directed to the SCAO and not the Respondent. If that were the case then the information held by the SCAO would not be within the scope of an access application directed towards the Respondent. 160The overriding context was clearly the provision of confidential legal advice from a practising legal practitioner to the client. 161I am satisfied that the documents were created for the 'dominant purpose' of giving or obtaining legal advice. I am also satisfied that the advice was given as independent advice. That is made plain from the contents of the documents. 162There has been no suggestion of an express waiver concerning the advice. I do not accept that the provision of the communications by Mr Sheehy to the SCAO constitutes a waiver of privilege. 163The privilege claim is therefore justified. That being the case it is to be conclusively presumed that there is an overriding public interest against disclosure of that information. The Tribunal has no discretion as to whether or not there is an overriding public interest against disclosure. The Applicant has no statutory entitlement to be provided with government information where there is an overriding public interest against disclosure. 164In the circumstances, the correct and preferable decision is to refuse access to the documents that are subject to a claim of legal privilege. 165I do not consider that an order for costs is warranted in the circumstances of this matter. Order 1. The decisions are affirmed insofar as they relate to the refusal to release documents that are the subject of a claim of legal privilege. 2. The decisions are affirmed in so far as they relate to the refusal to release staff emails. 3. The decisions are set aside insofar as they relates to the refusal to release CATEI information. In its place the decision is made that the Applicant is to be given a reasonable opportunity to inspect the withheld CATEI information in a manner that does not permit the copying of that information. ********** 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: 24 December 2014