A big win for councils — The protection of documents relevant to internal investigations - University of South Australia v Miller [2016] SADC 54

6 June 2016

Last Friday, 3 June 2016, the District Court delivered its decision in University of South Australia v Miller [2016] SADC 54.  This case was an appeal under the Freedom of Information Act 1991 (“the FOI Act”) against the decision of the Ombudsman to release a document.  Kelledy Jones acted for the University of South Australia (“the University”) in the appeal.

The Court was required to determine whether a document received in the course of an internal investigation should be disclosed. The Court found in favour of the University and held that there was no public interest in disclosing a document received confidentially in the course of an internal investigation. Although this case involved the University, the judgment is directly relevant to councils as an “agency” under the FOI Act.

The original FOI application involved a complaint made by Mr Miller to the University about the behaviour of one of its senior academics, a Professor, in his teaching role and his management and accountability of research projects. Following receipt of the complaint the University undertook an internal investigation.  In the course of investigating the Professor’s conduct the University received and considered information from a number of sources. During the course of the investigation another member of University staff sent an email to the investigators about Mr Miller (“the Email”).

The University considered the Email an exempt document under the FOI Act and determined not to release it. On internal review the University confirmed its previous decision.  The decision was then externally reviewed by the Ombudsman.  In the course of the external review the University submitted to the Ombudsman that the Email was exempt pursuant to the following exemptions under Schedule 1 of the FOI Act:

• clause 9(1)(a)(ii) – on the basis the Email was an internal working document;
• clause 16(1)(a)(iii) – on the basis the Email was a document concerning the operation of the University; and
• clause 13(1)(b)(i) – on the basis the Email was a document containing confidential material.

The Ombudsman found that the Email was not exempt pursuant to clause 16 or 13. However, while the Ombudsman agreed the Email constituted a document “that relates to” a consultation or deliberation that has taken place in the course of the agency’s decision making functions pursuant to clause 9(1)(a)(ii), it was determined that it did not meet the second part of the test under clause 9(1), in that disclosure of the Email would not, on balance, be contrary to the public interest.  The outcome of the external review was that the Ombudsman reversed the decision of the University and determined that the Email should be disclosed.

The University appealed to the District Court. The University was concerned that the Ombudsman’s determination meant it could result in all information and correspondence received in the course of an agency’s internal investigations, including confidential interviews and witness statements, being disclosed through the FOI process.

On appeal, the University submitted that while the Email contained matter that relates to consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the University, the University further submitted that the public interest test is also satisfied and the Email is exempt from disclosure.

The University argued that there is a powerful public interest in the University being able to investigate complaints efficiently and effectively.  Put another way, there is a powerful public interest in protecting the integrity of the University’s internal investigation process.  The integrity of that process would be compromised if the supply of information to the University’s investigators were prejudiced (by, for example, witnesses being unwilling or unable to provide information to those investigators).  The University made it clear that disclosing the Email under the FOI Act would prejudice the supply of information to the University’s investigators in the future.  Accordingly, the University submitted to the Court that it was clear on the evidence and other material before the Ombudsman that disclosing the Email would be contrary to the public interest in protecting the integrity of the University’s internal investigation process.

The Court found in favour of the University and rescinded the decision of the Ombudsman.

Importantly, the Court confirmed that any information provided in the course of an enquiry (such as the investigation carried out by the University following the receipt of the complaint) received in confidence will rarely, if ever, require disclosure.  The Court determined that the process of an investigation of this nature is a private matter and the University must observe certain protocols and procedures in responding to the complaint. The Court was of the opinion that it is difficult to conceive how the disclosure of documents received in the course of such an investigation can be other than contrary to the public interest.

The Court also made several findings in relation to the process undertaken by the Ombudsman on external review. Slattery J found that the Ombudsman made a number of errors and reached a conclusion “without any foundation”.  His Honour also found that the Ombudsman failed to comply with the principles of procedural fairness by receiving material, considering it, acting upon it and failing to give the University any opportunity to address it before making the decision.  The Court found this denial of procedural fairness was a “fundamental error” and commented that the affording of procedural fairness to the University “is little more than the application of ordinary common sense”.  Alarmingly, the Court said it had “significant doubt about the correctness of the legal analysis made by the Ombudsman in this instance.”

There is no doubt that this outcome is a big win for councils because every council undertakes internal investigations of some kind. In this instance it was an investigation relevant to human resource issues.  This decision now means that councils can proceed with such investigations with confidence and without fear that such information would be disclosed if an FOI application is made.  The Court has confirmed there is public interest in an agency having the ability to investigate complaints efficiently and effectively and there is a real public interest in protecting the integrity of that process.

If you have any questions regarding the above please contact Natasha Jones at njones@kelledyjones.com.au or on 08 8113 7102.