NSW Tribunal rules on FOI whisleblower exemption

The Appeal Panel of the NSW Administrative Decisions Tribunal has adopted a narrower interpretation than in previous cases of the exemption in the Freedom of Information Act for"matter relating to a protected disclosure within the meaning of the Protected Disclosure Act 1994" (Clause 20(1)(d)).

The Appeal Panel(at 21) said that while the words needed to be interpreted broadly, this did not mean they should be given the widest possible meaning. The objective of the Protected Disclosure Act was to protect information that would identify a person who had made a disclosure .In this case, information about the investigation of a protected disclosure by the University of NSW and sent to the Ombudsman, was "matter relating to a disclosure" and came within the exemption in Clause 20(1)(d) .

However the Appeal Panel went on to consider whether it should exercise its discretion to require the release of those parts of the document that would not reveal the identity of the informant. After taking into consideration the objectives of the FOI Act and the evidence before it,the Appeal Panel concluded this was the correct and preferable decision:

"The public interest reflected in the FOI Act is the public interest in openness and accountability. In this case the public interest, which is promoted by the exemption in Clause 20(1) (d), is the public interest in protecting from reprisals public officials who disclose corrupt conduct, maladministration and waste in the public sector. The object of the PD Act is to encourage and facilitate such disclosure. Section 3(1)(c) of the PD Act relating to the investigation of protected disclosures is not an object of the PD Act. It is merely a means by which the object is to be achieved. That provision does not justify keeping details of investigations confidential, especially given that the confidentiality guideline in section 22 applies only to information that might identify or tend to identify a person who has made a protected disclosure. Making the details of investigations public may well encourage agencies to conduct a thorough and objective assessment of the protected disclosure. In that sense disclosure would promote openness and accountability"(at 41)