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Saturday, April 28, 2007

NSW ADT FOI decision on access to investigator's report

The NSW Administrative Decisions Tribunal decision in Howell v Macquarie University (2007) NSWADT95 is the third decision in a complex case about access to documents concerning an investigation of a matter involving the Freedom of Information applicant. It's not finished yet - the Tribunal is yet to consider whether documents found to be exempt should in the circumstances be disclosed.

One interesting aspect of this latest decision is that the Tribunal found that the report of an independent investigator, including statements made by other members of the staff (excluding some personal affairs information) were not exempt from disclosure to the applicant. The University argued for exemption on legal professional privilege, and confidentiality grounds. Although the University's solicitor commissioned the report, the Tribunal was not satisfied it was prepared for the purpose of provision of legal advice. On confidentiality, the Tribunal said that the report had been provided to the University in confidence, but was not satisfied that disclosure to the FOI applicant would prejudice the future provision of reports by consultants. Similarly, statements made to the investigator by members of the staff (including two who objected to disclosure), were also found not to be exempt.

One noticeable inconsistency in recent Tribunal decisions concerns the relevance of disclosure under FOI and whether the identity or interests of a particular applicant are relevant. In this decision the applicant had some special standing because the complaint and investigator's report concerned her. In some other cases the Tribunal has refused access to a person who has a clear personal interest, on the basis that disclosure under the FOI Act is "disclosure to the world", meaning that there are no restrictions on what a particular applicant can do with information released under the Act.

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