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Thursday, July 27, 2006

NSW ADT FOI decision: confidentiality provision in a contract trumps all

It’s difficult to reconcile the lofty ideals and objects of freedom of information legislation and a recent NSW Administrative Decisions Tribunal finding that a document is exempt simply because an employee and his employer (an agency covered by the FOI Act) agree that a document should remain confidential.

In Fomiatti v SU (No.2) 2006 NSWADT 210 the NSW ADT found that documents concerning the employment of a vice chancellor at an unnamed university are exempt on the grounds that disclosure would found an action for breach of confidence. There is no reference in the decision to an order prohibiting disclosure of the name of the agency but it has been anonymised in the public report. That's just for starters.

The university had released part of the contract but refused access to 7 clauses and a note on one of its pages. One of the claims was in respect of an address (presumably a home address – no argument there and exempt on personal affairs grounds), but no description is provided about the type of information contained in the other clauses, apart from the comment they contained “provisions dealing with the obligations of the parties….in relation to the Vice Chancellor’s employment”.

The contract had been concluded in 2000. Two later variations and a 2005 draft were also disputed documents in the case.

The Tribunal decision was that all the documents (even those parts that had been disclosed to the applicant) were exempt under Clause 13(a) of Schedule 1 because disclosure would found an action for breach of confidence. A provision in the contract stated that “both parties will not disclose any of the details of this agreement other than by mutual agreement or if required by law”.

On the basis of the reasoning in the case, even disclosing this could found an action for breach of confidence.

Whether disclosure of information would found an action for breach of confidence is a complex issue and has been addressed in detail in a number of other cases in other jurisdictions in Australia. Most of these decisions involve consideration of whether there is a need to take into account various factors about the matter other than simply words used in the contract.

In contrast, Judicial Member Wilson seems to have seen it as a straightforward issue.

There is probably a reasonable basis for the proposition that a provision in a contract can found an action for breach of confidence, although there was agonising about this (not reflected in the ADT decision) in the cases cited as precedents. In at least one Federal ADT case not cited (Re Kamminga) the Commonwealth Administrative Appeals Tribunal took another view.

Judicial Member Wilson seems to have concluded that the only issue was whether the contract contained a confidentiality clause. Once that's established it's game, set and match.

As a result there is no reference to the need to weigh other considerations: the global description (“any of the details”) of the “confidential” information; the nature of the information (“obligations of the parties in relation to employment”) and whether it was of a kind that could be subject to an obligation of confidence; and whether any detriment to the provider needed to be demonstrated.

Perhaps its correct (in the light of some Commonwealth precedents that aren’t mentioned in the decision) that the Act does not require any weighing of public interest factors as Clause 13(a) makes no reference to the public interest. Yet there is no explanation in the decision about how this conclusion was reached, or acknowledgement of the High Court’s Fairfax doctrine of 25 years ago:
“The judiciary must view the disclosure of government information “through different spectacles”. This involves a reversal of the onus of proof. The Government must prove that the public interest demands non disclosure”.
There may have been an assessment that a document of this kind concerning a university should be treated differently than a similar document held by a government body but again this isn’t an issue canvassed in the decision.

I can imagine what Mr. Fomiatti thought of the following observation (paragraph 24):
“The Applicant will readily appreciate the spirit of the legislation in preserving the sanctity of confidences that parties have expressly agreed upon…”
My understanding of the spirit of the legislation is that it seeks to extend as far as possible the rights of the public to access information, subject only to such limitations as are necessary for the proper exercise of public functions.

While there is nothing in the decision to suggest anything untoward, the Tribunal might have also been expected to require satisfaction that the parties had not included the provision in the contract in order to avoid the possibility of disclosure under the FOI Act.

Judicial Member Wilson may have got the decision right – after all the rest of us don’t know what the documents contain. If it is the correct application of the law, it's yet another reason why the FOI Act needs re-examination in order to achieve its objectives.

At a time when the NSW Government is on the back foot about disclosure of contracts, this decision (or Clause 13(a)) opens up significant potential to frustrate the public right to know.

Annual reports of the NSW Ombudsman have previously referred to the investigation of complaints about access to employment contracts of one or more university vice chancellors. The Ombudsman concluded that details should be provided subject to the deletion of any information of a personal nature.

There is obviously a gulf between the Ombudsman’s views and the interpretation of the law by the ADT.

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