GIPA: Scorned husbands need not apply

Key Points

• Regarding investigations of academic misconduct, persons communicating with the investigators must be assured that their communications will be treated confidentially. If the disclosure has the potential to prejudice future co-operation this would tend to suggest that the disclosure is not in the public interest.

• In making an access to information application, an applicant’s motives may be a relevant consideration. If it is shows that the applicant is making the request to further a revenge campaign, this would tend to suggest that the disclosure is not in the public interest.

In DDT v Charles Sturt University [2017] NSWCATAD 329 the Civil and Administrative Tribunal of New South Wales (NCAT) was asked to make a determination concerning an access to information application under the Government Information Public Access Act 2009 (NSW) (GIPA Act).

The applicant sought access to an extract from a report published by Charles Sturt University (CSU) setting out the findings of an academic misconduct claim made against his former wife (identified as E in the proceedings). The evidence showed that it was the applicant who had made the initial allegation against his former spouse as part of a persistent and enduring revenge campaign. His conduct at the time resulted in E taking out an apprehended violence order.

CSU initially denied the applicant’s request for access. The applicant appealed and the Information and Privacy Commissioner recommended an internal review. The internal review was conducted and concluded that there was an overriding public interest against the disclosure of the report.

Under section 5 of the GIPA Act there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 14 sets out the public interest considerations against disclosure.  CSU submitted that disclosure of the information could reasonably be expected to:

• prejudice the supply to an agency of confidential information;
• prejudice the effective exercise by an agency of its functions;
• contravene an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (NSW);
• reveal false or unsubstantiated allegations about a person that are defamatory; and
• expose a person to a risk of harm, serious harassment or serious intimidation.

In support of its position the University also relied on section 55 of the GIPA Act. That section entitles personal factors of the applicant to be taken into account in determining whether there is an overriding public interest against disclosure. On the facts of this care, the relevant personal factors included:

• the applicant was the ex-husband of the individual who was the subject of the report;
• the existence of an apprehended violence order against the applicant in relation to the subject report; and
• charges brought against the applicant relating to his communications with E.

For his part, the applicant contended that:

• as he was the person who provided information to CSU concerning the allegations of academic misconduct, no prejudice would be occasioned to E or CSU if he was given a copy of the report;
• he was not seeking the release of personal information and would agree for any personal information in the report to be redacted;
• he was only seeking access to a specific section in the report which he did not expect to contain personal information;
• there were no unsubstantiated allegations contained in the part of the report to which the application related; and
• the fact that he was convicted of 2 offences in relation to E did not indicate that the production of the report or a part of it would expose E to serious harassment or serious intimidation.

In balancing the public interest considerations for and against disclosure of the report NCAT held that:

• the whole report was the personal information of E;
• concerning investigation of academic misconduct, persons communicating with the investigators must be assured that their communications will be treated confidentially and so if the disclosure of the report has the potential to prejudice the co-operation of other persons in relation to future enquiries this suggested that disclosure was not in the public interest;
• the knowledge of a person who was the subject of a complaint of academic misconduct that their response to the complaint may be disclosed to the person making the complaint may inhibit their co-operation with the investigation process. This would also suggest that disclosure was not in the public interest;
• the applicant’s motivation in seeking the document is revenge against his former spouse and an attempt to use the report, if disclosed to him, as a part of a campaign against E which could reasonably be expected to expose E to a risk of serious harassment or intimidation;
• the disclosure of the report could reasonably be expected to reveal unsubstantiated allegations about E that are defamatory; and
• in any event, it would not be reasonably practicable to produce a redacted version of the report.

Unsurprisingly, the Tribunal held that there was an overriding public interest against the disclosure of the report.

The case serves as a timely reminder that the applicant’s motives may be considered in determining whether there is an overriding public interest against disclosure. Regulatory bodies will not allow the GIPA Act to be used as a vehicle of intimidation and harassment.

Post by Vanja Simic and John Kell