Pemberton v University of New South Wales [2014] NSWCATAD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pemberton v University of New South Wales [2014] NSWCATAD 19 Hearing dates: On the papers Decision date: 28 February 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg, Senior Member Decision: The decision under review is set aside Orders: 1.The respondent provide to the applicant the information in the documents numbered 16, 30, 31, 35, 36, 38, 42, 43, 44 Catchwords: Government information - neither confirm nor deny information held - change of position - information already provided to Applicant by another agency Legislation Cited: Government Information (Public Access) Act 2009 Freedom of Information Act 1989 University of New South Wales Act 1989 Right to Information Act 2009 (Qld) Cases Cited: Black v Hunter New England Local Health District [2011] NSWADT 295 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Category: Principal judgment Parties: Gregory Pemberton (Applicant) University of NSW (Respondent) Representation: Counsel J Lucy (Respondent) G Pemberton (Applicant in person) University of NSW (Respondent) File Number(s): 133217

reasons for decision

BACKGROUND 1Gregory Pemberton, the Applicant, requested the Respondent, University of New South Wales ('UNSW') to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'). His request, when clarified, related to: Any communications sent by a member of UNSW staff, Professor Catharine Lumby, which refer to publications by Dr Helen Pringle in 2011/2012, including any correspondence by University management concerning this matter in terms of the two persons involved. 2Professor Lumby, who was an employee of UNSW in 2011, is one of the authors of a book, The Porn Report. In September 2011, Dr Pringle, another academic at UNSW, published an article on the ABC's website entitled The Porn Report: a Studied Indifference to Harm. The article was an edited extract from Dr Pringle's chapter in a book called Big Porn Inc, in which Dr Pringle claimed that The Porn Report was funded by the porn industry and that the authors skewed their research findings to support the porn industry. On 7 September 2011 Professor Lumby sent a letter to the Dean of UNSW's Faculty of Arts and Social Sciences, Professor Donald, raising concerns about Dr Pringle's claims ('Professor Lumby's letter'). 3Initially the Respondent determined the access application by refusing to confirm or deny whether it held the information sought, on the basis that there was an overriding public interest against disclosure of information confirming or denying that fact: s.58(1)(f) GIPA Act. The Applicant sought review of that decision. 4Some information, notably a copy of Professor Lumby's letter, had previously been obtained by the Applicant from Queensland University of Technology ('QUT') pursuant to the Right to Information Act 2009 (Qld). As a result, the Respondent reviewed its position. It identified a large number of documents about which it had raised no contention of an overriding public interest against disclosure, other than in respect of personal information. The Applicant accepted that personal information, such as private mobile numbers, email and home addresses or personal relationships (where not relevant to public duties) should be withheld from disclosure. 5In its final submissions - its (unnecessarily, in my view) confidential submissions in reply - the Respondent withdrew its objection to disclosure of some further documents and I assume these have now been provided to the Applicant. In the end result, it appeared only 16 documents or parts of documents remained for consideration: Items 16, 30, 31, 35, 36, 38, 42, 43, 44, 45, 46, 47, 52, 53, 54, 55. 6The Respondent provided to the Tribunal, on a confidential basis, a list of the documents withheld. The list does not identify the detail of the documents (all of which are emails, although some have attachments) beyond the sender and the recipient and the date and time sent. I could see no reason why that list of documents, should attract the confidentiality of s.107(2) of the GIPA Act. It seemed to me that the Respondent, in relation to the list and its confidential evidence and submissions, had adopted a very narrow view of s.107(2). Had the matter been heard other than on the papers, some robust discussion may have occurred in relation to its claim for confidentially over much of its evidence and submissions. I note the discussion of s.107 in Black v Hunter New England Local Health District [2011] NSWADT 295. Having regard to my findings below, in the end result it is of no consequence that the Respondent had over-enthusiastically asserted its position under s.107.