Shaw and The University of Queensland; L'Estrange (Third Party)

Application number:
1993 S0134
Decision date:
Monday, Dec 18, 1995
(1995) 3 QAR 107

Shaw and University of Queensland; L'Estrange (Third Party)
(1993 S0134, 18 December 1995) 

L'Estrange and University of Queensland; Shaw (Third Party)
(1993 S0139, 18 December 1995)


These proceedings, which were dealt with and decided together, involved documents held by the University concerning the University's handling of a workplace dispute which had arisen within the University's Faculty of Dentistry at a time when both Dr Shaw and Associate Professor L'Estrange were members of the staff of that Faculty.  In her application for external review, Dr Shaw sought a review of the University's decision to refuse her access to one document prepared by Associate Professor L'Estrange, and provided to the University.  In his 'reverse FOI' application, Associate Professor L'Estrange challenged the University's decision to grant Dr Shaw access to certain other documents concerning the workplace dispute.


The document to which Dr Shaw had been refused access by the University was a memorandum prepared to record the collective opinion of three members of staff of the Faculty (including Associate Professor L'Estrange) as to certain difficulties in the working relationship between those staff members and Dr Shaw.  The evidence before the Information Commissioner was that the document had been prepared by Associate Professor L'Estrange in contemplation of a meeting attended by the three members of staff whose opinions it recorded, as well as Dr Shaw, and that the text of the document had been read out at that meeting.


Professor L'Estrange contended that Dr Shaw, like all persons present at that meeting, had agreed to preconditions binding those present at the meeting to an obligation of confidence in respect of the information conveyed at the meeting.  On that basis, Associate Professor L'Estrange contended that the document was exempt matter under s.46(1)(a), in that disclosure of the document would found an action for breach of confidence.  The Information Commissioner held that in the particular circumstances of the case, where the contents of the document in question had been read out in Dr Shaw's presence, the matter in issue was not confidential vis-à-vis Dr Shaw, and that its disclosure to Dr Shaw would not, therefore, constitute an unconscionable use of the information on the part of the University.  On that basis, the Information Commissioner held that the document was not exempt from disclosure to Dr Shaw, under s.46(1)(a).


Associate Professor L'Estrange also contended that the document in question was exempt under s.40(c) of the FOI Act, on the basis that its disclosure could reasonably be expected to discourage staff from expressing frank and honest opinions in defence of allegations against them, and to compromise the University's system of confidential mediation, thereby having a substantial adverse effect on the University's management or assessment of its personnel.  The Information Commissioner was not satisfied that there was a reasonable expectation that disclosure would cause any of the anticipated adverse effects contended for by Associate Professor L'Estrange, and found that the document in issue was not exempt from disclosure to Dr Shaw under s.40(c).


The remaining issues for the Information Commissioner's determination concerned documents which the University proposed to release to Dr Shaw, but which Associate Professor L'Estrange contended were exempt from disclosure.  Again, the Information Commissioner rejected Associate Professor L'Estrange's claims that those documents were exempt under s.40(c) (which claims were put on the same basis noted in the preceding paragraph).


Associate Professor L'Estrange contended that one of these documents was also exempt under s.41(1) (the deliberative process exemption).  It comprised a letter from Associate Professor L'Estrange and two other Faculty members to the Dean of the Faculty, expressing their views on the expected adverse effects of Dr Shaw's return to work in the Faculty after a period of study leave, and a letter from the Head of Department to the Vice-Chancellor (forwarding the first-mentioned letter, with additional comments).


The Information Commissioner found that Associate Professor L'Estrange, and his co-authors of the letter to the Dean, must have intended, hoped and expected that the letter would influence the University's deliberative process with respect to its personnel management functions, and that they could not reasonably have expected that a decision adverse to Dr Shaw's interests could properly have been taken without informing her of the substance of the allegations made in that letter.  Further, the Information Commissioner found that most of the content of that letter was, in essence, the same as information contained in documents already disclosed to Dr Shaw.  In the circumstances, the Information Commissioner was not satisfied that disclosure of the letters to Dr Shaw would, on balance, be contrary to the public interest, and found that they were not exempt under s.41(1).


Associate Professor L'Estrange contended that one document was also exempt under s.46(1)(a).  It comprised notes from a meeting held between Associate Professor L'Estrange and the Registrar of the University, attended by their respective legal advisers. There was conflicting evidence from Associate Professor L'Estrange and his legal representative, on the one hand, and the University Registrar and Legal Officer, on the other, as to the nature of their discussions concerning the confidentiality of the matters discussed at their meeting.  After considering all of the relevant evidence, the Information

Commissioner determined a lack of satisfaction that there had been an express undertaking or implicit agreement by the Registrar (on behalf of the University) as to confidentiality of information provided by Associate Professor L'Estrange at the meeting in question.  The circumstances and purpose of the meeting, and duties owed by Associate Professor L'Estrange (as an employee with managerial responsibilities) to his employer, were in the Information Commissioner's view inconsistent with the information recorded in the document in question being subject to an obligation of confidence owed by the University to Associate Professor L'Estrange.  Accordingly, the Information Commissioner held that the document in issue did not satisfy the requirements of s.46(1)(a).


Associate Professor L'Estrange contended that the final document in issue was also exempt, under s.44(1) and s.46(1)(a).  It was a letter from Associate Professor L'Estrange to the Vice-Chancellor of the University, containing his perceptions of the allegations/complaints raised by Dr Shaw, his views on the University's handling of the situation, and an outline of the consequent effects on him, both personally and professionally.


In relation to s.44(1), the Information Commissioner determined that, with the exception of parts of the document no longer in issue, the letter must properly be characterised as containing information which concerned Associate Professor L'Estrange in his employment as an officer of the University, and not as personal affairs information falling within s.44(1) of the FOI Act: see Pope and Queensland Health (1994) 1 QAR 616 at pp.658-660. 

In relation to s.46(1)(a), the Information Commissioner found that the document was prepared by Associate Professor L'Estrange in the course of, or for the purposes of, the deliberative processes involved in the personnel management functions of the University.  The Information Commissioner noted that, when the matter in issue is of this type (ie, matter of a kind mentioned in s.41(1)(a)), s.46(2) precludes the application of s.46(1) unless it can be established that disclosure would found an action for breach of confidence owed to a person other than a person in the capacity of, inter alia, an officer of an agency.  The Information Commissioner determined that the letter had been written by Associate Professor L'Estrange in his capacity as an officer of the University, and that therefore the letter could not be exempt under s.46(1)(a).


Given the Information Commissioner's finding in relation to s.46(1)(a), the Commissioner also considered the possible application of s.41(1) to the letter.  The Commissioner acknowledged that there may be, in appropriate circumstances, a public interest in an employee being able to raise with the chief executive of an agency issues of concern as to his or her treatment, without unnecessary further disclosure.  However, the Information Commissioner also recognised that, in a case where the employee wishes to have action taken on his or her concerns, a degree of further disclosure will ordinarily be necessary.  The Information Commissioner found exempt under s.41(1), a small part of the letter which dealt solely with the effect on Associate Professor L'Estrange of the University's handling of the dispute - the disclosure of which would not have assisted Dr Shaw's understanding of the University's handling of the dispute, or otherwise served the public interest in accountability for performance by the University of its functions.  The Information Commissioner found that disclosure of the balance of the letter would not be contrary to the public interest.