FOI battle over University of NSW medical fraud investigation

There is no new law in the decision of the NSW Administrative Decisions Tribunal in Chen v University of NSW (No 2) [2009] NSWADT 99, but it is a reminder of the wide meaning of some words used in FOI exemptions. In this case the issue was the exemption for documents which would disclose "matter relating to a protected disclosure"-Clause 20(1)(d) of Schedule 1 of the NSW Freedom of Information Act.The documents referred to in the case came into existence during inquiries years later about the handling of claims of a medical research fraud in 2001, and long after many details and various reports had been made public. Way back in 2003 the FOI applicant, Dr Chen had been described on Four Corners as one of the "whistleblowers."

Dr Chen is still seeking some documents. Judicial Member Wilson thinks there may be a case for exercise of the override discretion to order disclosure of exempt documents and wants others who have an interest notified of the proceedings before a decision. However regarding the exemption the words " relating to" cover virtually anything that has some connection with a protected disclosure [at 8]:

".. to the extent that such documents, inter alia, record the protected disclosures made, discuss those disclosures or deal with them in any way, a disclosure of such material would disclose matter relating to a protected disclosure, on a broad reading of the necessary connection. This would include comments in the documents as to how the disclosures were investigated, criticisms of those investigations and recommendations as to outcomes or future steps that ought to be taken, again on a broad reading. The reason for this is that, clearly, it can be well argued that, by reason of the postulated connections, the material recorded in the document is matter relating to a protected disclosure."