Pemberton and The University of Queensland
(1993 S0017, 5 December 1994)
The matter in issue in this case comprised (a) referee reports obtained by the respondent in connection with applications for promotion to senior academic positions made by the applicant and (b) parts of referee reports which would disclose the identities of their respective authors in circumstances where the referees had consented to disclosure to the applicant of the contents of their reports, but had refused to consent to disclosure of their respective identities as authors of the reports.
The respondent correctly conceded that the contents of referee reports comprise matter of a kind mentioned in s.41(1)(a) of the FOI Act, ie opinion, advice or recommendation obtained for the purposes of deliberative processes involved in the functions of the University. Four of the referee reports in issue, which were written by academics acting in their official capacities as Head of Department, Dean or Pro-Vice-Chancellor within the University, were not therefore eligible for exemption under s.46(1)(a) of the FOI Act, because of the terms of s.46(2)(a)(iii). Those four reports were claimed to be exempt under s.40(c) and s.41(1) of the FOI Act.
Referee reports by academics not employed by the respondent were clearly not disqualified from possible exemption under s.46(1)(a) by the terms of s.46(2). However, there was a contest in respect of three other referee reports written by persons who were officers of the respondent at the time they prepared the reports, but who (the respondent argued) did not write the reports in their capacities as officers of the respondent. The Information Commissioner decided that the three reports were provided on a voluntary basis by individuals considered to be of sufficient eminence in the academic community to act as referee in respect of specific aspects of the applicant’s work and professional standing, and were not provided in the capacity of an officer of the respondent agency. Hence, s.46(2) did not disqualify those three reports from possible exemption under s.46(1)(a).
The Information Commissioner found that the matter in issue which was eligible for consideration under s.46(1)(a) was exempt matter under that provision. Having regard to uncontradicted evidence of an established convention understood and applied in the universities of Australia, New Zealand and the United Kingdom, the Information Commissioner accepted that the referee reports were provided on the basis of a clear understanding on the part of the author of each report, and on the part of the University, that the University would restrict access to the report to those involved in the promotion process for which it was sought, for the limited purpose of being used to evaluate the claims of the candidate for promotion against relevant selection criteria. The Information Commissioner accepted that an equitable obligation of confidence became binding on the respondent University upon the supply of confidential information for that limited purpose. In some instances, only identifying details of the author of the report had not been disclosed to the applicant, but this represented an acceptable exercise of the privilege, possessed by a supplier of confidential information which is subject to an obligation of confidence in the hands of a recipient, to selectively authorise disclosure of information which is otherwise subject to an obligation of confidence.
As to the respondent’s claim for exemption under s.40(c) in respect of the four reports written by Heads of Department, Deans or Pro-Vice-Chancellors as part of their duties of office, the Information Commissioner expressed the view that (for reasons explained at paragraphs 139-151) disclosure to a candidate for promotion of reports required to be prepared on the candidate by the relevant Head of Department, Dean of Faculty and Pro-Vice-Chancellor could not reasonably be expected to have a substantial adverse effect on the management or assessment by the respondent of its personnel. However, since the effects of disclosure of matter in issue are ordinarily to be evaluated, for the purposes of s.40(c), as if disclosure were to any person entitled to apply for it under the FOI Act (including, for instance, the candidate’s rivals for promotion, or students in the candidate’s Department), the Information Commissioner considered it reasonable to expect that disclosure of the matter in issue would lead to a loss of candour in reports of the kind in issue that would be sufficiently widespread as to have a substantial adverse effect on the management or assessment by the University of its personnel. The four reports therefore satisfied the test for prima facie exemption under s.40(c), subject to the application of the public interest balancing test.
At paragraphs 164-193, the Information Commissioner reviewed Australian authorities that have held that when an exemption provision contains a public interest balancing test, it is possible in an appropriate case to recognise a legitimate public interest which favours disclosure of particular documents to a particular applicant for access, even though no such public interest consideration would be present when disclosure to other applicants was in contemplation. For reasons explained at paragraphs 196-203, the Information Commissioner considered that this was an appropriate case for the application of that principle. In respect of three of the four reports, the Information Commissioner found that there was a legitimate public interest in the applicant obtaining access, which carried sufficient weight to warrant a finding that disclosure of those reports to the applicant would, on balance, be in the public interest.
The same considerations warranted a finding that disclosure to the applicant of 3 of the 4 reports by Heads of Department, Deans or Pro-Vice-Chancellors would not be contrary to the public interest, such that exemption under s.41(1) of the FOI Act was not established.