Access denied

  • 17 Nov 2017

The NSW Civil and Administrative Tribunal (the Tribunal) was asked to review a decision made by The Charles Sturt University (the University) in relation to its refusal to allow the applicant access to an investigation report sought pursuant to the Government Information (Public Access) Act 2009 (the GIPA application). Whilst not a health matter, this decision is a reminder of the various public interest considerations which must be balanced and taken into account when determining if information should be released pursuant to a GIPA application.

In this case, the applicant sought access to a copy of an investigation report prepared by the University concerning his former wife in relation to allegations of academic misconduct.  The investigation was conducted following a complaint made by the applicant to the University. Following its investigation, the University found that the allegations made against the applicant’s former wife were not proven.

In responding to this application before the Tribunal the University maintained that its decision to refuse access to the report was correct. In particular, it was argued that disclosure of the report to the applicant:

  1. had potential to prejudice co-operation of other relevant persons in relation to future enquiries;
  2. would prejudice the effective exercise of the University’s functions;
  3. would be reasonably expected to reveal unsubstantiated allegations about the former wife that were defamatory; and
  4. exposed the former wife to serious harassment or serious intimidation in circumstances where the applicant had previously been convicted for such behaviour towards her.

The Tribunal was satisfied that there was an overriding public interest against disclosure of the report and each of the public interest considerations against disclosure relied upon by the University were upheld.

In oral submissions, the applicant submitted that he was only seeking a specific section of the report which he did not expect to contain personal information. In this regard the Tribunal held that disclosure of the report (or even the redacted version of the report), in circumstances where the former wife had not consented to the release of the personal information, would contravene the information protection principle set out in s18 of the Privacy and Personal Information Act.

In light of the personal circumstances relevant to the application, the Tribunal found that the considerations relating to the disclosure of private information and exposure of the former wife to further harassment if the report were disclosed, were very significant and strong factors against disclosure. The Tribunal concluded that the applicant would not resist the opportunity to utilise the report to make further allegations (which there was no basis for) if the report were released.

The application was refused and the decision of the University to refuse access to the report was affirmed.

Reference: DDT v Charles Sturt University [2017] NSWCATAD 329

Post by Emma Ellis and Karen Kumar 

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