The Ombudsman, supported by advice from the Solicitor General,makes it clear that an exemption in the Act (clause 13(a) Schedule One) where disclosure could be expected to found an action for breach of confidence, does not extend to a contract of employment where the parties have simply agreed to put in a confidentiality clause. The issue came onto the Ombudsman's table when a number of NSW universities refused access to the employment contract of the vice chancellor, and followed a decision supportive of this position in July 2006 by the NSW Administrative Decisions Tribunal.At the time we commented that the ADT decision was highly questionable and that the Ombudsman for years had been pushing the line, correctly in our view, that public sector employment arrangements, at least those for senior officers, should be in the public domain. The Solicitor General advised the Ombudsman:
“clause 13(a) is principally directed to cases in which a person has provided confidential information to a government agency and another person seeks to obtain access to that information by lodging a request under the Act. A right of action arising under a confidentiality clause of a contract would be for a breach of the agreement, not for a breach of confidence...The Solicitor General did not consider the disclosure of Vice Chancellors’ employment contracts would meet these criteria because the contracts would be unlikely to contain confidential information imparted by the VC to the university or vice versa."
The universities response could have been somewhat firmer:
"We have shared the Solicitor General’s advice with the universities and they have all indicated they would consider it in any future application of clause 13(a)."The Ombudsman also reports success, again with some input from the Solicitor General,in persuading the Department of Education that it should revise a policy direction that any report of a school incident was for the dominant purpose of use in legal proceedings, and was thus subject to the legal privilege exemption in the Freedom of Information Act.This always seemed ridiculous: surely a report would be prepared so that there was an accurate contemporaneous record of what happened, and at the time no legal proceedings were underway or in reasonable prospect. Here is the relevant extract:
"Last year, we suggested the Department of Education and Training (DET) consider redrafting their reporting school accidents policy in regard to the application of legal professional privilege. DET’s policy stated that legal professional privilege will apply to all school accident reports, thus pre-determining a blanket exemption for such documents requested under FOI. Our view, supported by the Solicitor General, is that this approach is wrong. DET has advised us that they have now amended the policy to state that legal privilege ‘may apply.’"So change in this field is by way of small steps I'm afraid.
However the Ombudsman's review of the Act proceeds, and the new Premier has said some of the right things and made what passes in NSW for bold decisions- ministerial media releases to be on the web, disclosure of payments to briefly employed spin doctors, release of a consultants report on what's wrong with RailCorp.
Who knows where this might lead.