Chen v University of New South Wales (No 4) - [2009] NSWADT 320

CITATION: Chen v University of New South Wales (No 4) [2009] NSWADT 320

DIVISION: General Division

PARTIES:
APPLICANT
Juchuan Chen
RESPONDENT
University of New South Wales

FILE NUMBER: 053403

HEARING DATES: 9 December 2009

SUBMISSIONS CLOSED: 9 December 2009

DATE OF DECISION:
21 December 2009

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Discretionary power to grant access to exempt documents. Formal orders setting aside decision under review and substituting new decision.

LEGISLATION CITED: Freedom of Information Act 1989

REPRESENTATION:
APPLICANT
In person
RESPONDENT
P Singleton, barrister

ORDERS: 1.The decision under review is set aside in so far as it concerns the documents within the 8 categories of documents under review and the following determination, orders and directions are substituted therefore
2.Access is granted to all of the documents contained within Documents 1 and 2 with the names and addresses of each of the makers of the original protected disclosures, save for the applicant’s name and address, being deleted and replaced, separately for each complainant, save the applicant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made.
3.Access is granted to all of the documents contained within Document No. 3 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made
4. Access is granted to all of the documents contained within Documents 4, 5, 6, 7 and 8 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made
5.For the purposes of giving effect to this determination the addresses of the makers of the original protected disclosures shall include postal, residential, business, employment and email addresses as well as telephone numbers
6.The respondent is directed to give effect to this substituted decision and these orders and directions forthwith and shall give priority in this regard to providing the applicant with access to documents within categories 1, 2 and 3 in accordance with this substituted decision
7.The parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise in giving effect to this substituted decision, orders and directions, including the correction of any oversights
8.There shall be no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.

REASONS FOR DECISION

1 The applicant commenced these proceedings seeking access to certain documents held by the respondent in relation to which the respondent has refused access by relying upon several of the exemptions for which the legislation provides. For the purposes of the proceedings the documents under review were separated into 8 groups, some groups containing numerous folios and others containing volumes of individual documents.

2 On 08 December 2009 the Tribunal delivered is reasons for decision but deferred making final orders pending a directions hearing listed for 9 December 2009 to enable the parties to make any submissions they should so wish in relation to appropriate orders. It now remains for the Tribunal to make those orders, which are as follows in paragraphs 5 to 12 inclusive hereunder.

3 The respondent has agreed to provide the documents forthwith, that is, within a reasonable period of time and without delay. In this regard the parties have noted that whilst the respondent anticipates that it will be able to provide access to documents within the Document 1, 2 and 3 categories within the near future, it will possibly take up until April 2010 to properly edit the remaining documents by reason of their volume. In these circumstances the Tribunal will direct the respondent to give priority to granting access to Documents 1, 2 and 3. The respondent agrees with this proposal.

4 By reason of the volume of documents involved it is possible that issues may arise in giving effect to these orders as the documents may well contain aspects or information which has escaped attention. For this reason the Tribunal will grant liberty to apply on three days notice to the parties.

5 The decision under review is set aside in so far as it concerns the documents within the 8 categories of documents under review and the following determination, orders and directions are substituted therefore.

6 Access is granted to all of the documents contained within Documents 1 and 2 with the names and addresses of each of the makers of the original protected disclosures, save for the applicant’s name and address, being deleted and replaced, separately for each complainant, save the applicant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made.

7 Access is granted to all of the documents contained within Document No. 3 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made.

8 Access is granted to all of the documents contained within Documents 4, 5, 6, 7 and 8 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made.

9 For the purposes of giving effect to this determination the addresses of the makers of the original protected disclosures shall include postal, residential, business, employment and email addresses as well as telephone numbers.

10 The respondent is directed to give effect to this substituted decision and these orders and directions forthwith and shall give priority in this regard to providing the applicant with access to documents within categories 1, 2 and 3 in accordance with this substituted decision.

11 The parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise in giving effect to this substituted decision, orders and directions, including the correction of any oversights.

12 There shall be no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.

Details

AGLC: Chen v University of New South Wales (No 4) [2009] NSWADT 320
Case: [2009] NSWADT 320
Decision Date: 21 December 2009

CaseChat Overview and Summary

In the case of Chen v University of New South Wales (No 4), the applicant, Chen, sought access to certain documents under the Freedom of Information Act 1982 (Cth). The University of New South Wales was the respondent, and the dispute involved the discretionary power to grant access to exempt documents. The case was heard by the Administrative Appeals Tribunal in Australia.

The primary legal issue the Tribunal had to address was whether the discretionary power to grant access to exempt documents under section 22A of the Freedom of Information Act had been exercised lawfully by the University. The Tribunal had to determine whether the University correctly exercised its discretion in denying access to certain categories of documents, and if not, what remedy was appropriate.

The Tribunal found that the University did not exercise its discretion correctly in denying access to the documents. The Tribunal held that the University's decision to deny access to the documents was not in accordance with the law, as the University had failed to properly consider the public interest factors and had not balanced the public interest factors against the potential harm to the individuals whose personal information was contained in the documents. The Tribunal also found that the University had failed to provide adequate reasons for its decision. Accordingly, the Tribunal set aside the University's decision and substituted its own decision, granting access to the documents with certain redactions to protect the privacy of the individuals involved.

The Tribunal's orders included setting aside the University's decision and substituting its own decision, granting access to the documents with certain redactions. The Tribunal also directed the University to give effect to its decision and orders forthwith, with priority given to providing the applicant with access to the documents. The Tribunal granted leave to the parties to list the proceedings on three days' notice for further directions to resolve any issues that may arise in giving effect to the substituted decision, orders and directions, including the correction of any oversights. The Tribunal made no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.

Orders

Orders of the court

1.The decision under review is set aside in so far as it concerns the documents within the 8 categories of documents under review and the following determination, orders and directions are substituted therefore

2.Access is granted to all of the documents contained within Documents 1 and 2 with the names and addresses of each of the makers of the original protected disclosures, save for the applicant’s name and address, being deleted and replaced, separately for each complainant, save the applicant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made.

3.Access is granted to all of the documents contained within Document No. 3 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made

4. Access is granted to all of the documents contained within Documents 4, 5, 6, 7 and 8 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made

5.For the purposes of giving effect to this determination the addresses of the makers of the original protected disclosures shall include postal, residential, business, employment and email addresses as well as telephone numbers

6.The respondent is directed to give effect to this substituted decision and these orders and directions forthwith and shall give priority in this regard to providing the applicant with access to documents within categories 1, 2 and 3 in accordance with this substituted decision

7.The parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise in giving effect to this substituted decision, orders and directions, including the correction of any oversights

8.There shall be no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chen v University of New South Wales (No 4) [2009] NSWADT 320
DIVISION:	General Division
PARTIES:	APPLICANT Juchuan Chen RESPONDENT University of New South Wales
FILE NUMBER:	053403
HEARING DATES:	9 December 2009
SUBMISSIONS CLOSED:	9 December 2009
DATE OF DECISION:	21 December 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Discretionary power to grant access to exempt documents. Formal orders setting aside decision under review and substituting new decision.
LEGISLATION CITED:	Freedom of Information Act 1989
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1.The decision under review is set aside in so far as it concerns the documents within the 8 categories of documents under review and the following determination, orders and directions are substituted therefore 2.Access is granted to all of the documents contained within Documents 1 and 2 with the names and addresses of each of the makers of the original protected disclosures, save for the applicant’s name and address, being deleted and replaced, separately for each complainant, save the applicant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made. 3.Access is granted to all of the documents contained within Document No. 3 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made 4. Access is granted to all of the documents contained within Documents 4, 5, 6, 7 and 8 with the names and addresses, where occurring, of each of the makers of the original protected disclosures being deleted and replaced, separately for each complainant, by suitable letters of the alphabet so as to maintain consistency throughout the documents. No other deletions are to be made 5.For the purposes of giving effect to this determination the addresses of the makers of the original protected disclosures shall include postal, residential, business, employment and email addresses as well as telephone numbers 6.The respondent is directed to give effect to this substituted decision and these orders and directions forthwith and shall give priority in this regard to providing the applicant with access to documents within categories 1, 2 and 3 in accordance with this substituted decision 7.The parties are granted leave to list the proceedings on 3 days notice for further directions to resolve any issues that may arise in giving effect to this substituted decision, orders and directions, including the correction of any oversights 8.There shall be no orders as to the costs involved in bringing and litigating the proceedings in the Tribunal.