Australia, New South Wales Civil and Administrative Tribunal , 28 April 2022, Kang v University of Sydney [2022] NSWCATAD 135
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
Application for review in relation to a decision made by a public university to refuse to provide the Applicant with “policies, legislation, or legal authorities or responsibilities” concerning the Wuhan, China outbreak of SARS-CoV-2 being the virus that causes COVID-19 in humans. The refusal was based on an “overriding public interest against its disclosure.” Main rights were freedom of information and public interest factors in disclosing communication between research facilities and the specific research conducted around COVID-19/ SARS-CoV-2. The Tribunal affirmed the decision to not release the information, finding that the public interest considerations against disclosure outweighed those in favour of disclosure.
Facts of the case
The Applicant, on behalf of Associated Press in Beijing, made an application seeking access to information held by the Respondent concerning the origins of the outbreak of COVID-19 in Wuhan, China.
The application had been made for access to this information on a public interest basis (under the Government Information (Public Access) Act 2009 (“GIPA Act”). The application was declined on the basis of “overriding public interest against disclosure.”
The Applicant then filed an application for administrative review of a decision not to release a tranche of emails between the University of Sydney and the China Centre for Disease Control and Prevention.
By way of background, the Applicant sought the information from 29 December 2019 to the date of the Freedom of Information application. It was hoped that the documents would assist the Applicant in understanding the “sequence of events” which led to the outbreak of COVID-19 in Wuhan and the origins of the virus. The two theories for the outbreak involved an animal to human transmission or that the virus was leaked from the Wuhan laboratory.
The Tribunal then considered the public interest considerations against disclosure which are contained in s14 of the GIPA Act. It was argued by the Respondent that there was an “overriding public interest against disclosure in circumstances where it could reasonably be expected a disclosure would:
(a) prejudice the supply to the University of confidential information that facilitates the effective exercise of its functions (s 14 Table, cl 1(d));
(b) prejudice the effective exercise by the University of its functions (s 14 Table, cl 1(f));
(c) result in the disclosure of information provided to the University in confidence (s 14 Table, cl 1(g));
(d) reveal an individual’s personal information (s 14 Table cl 3(a)) or contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (s 14 Table cl 3(b));
(e) expose a person to a risk of harm or of serious harassment or serious intimidation (s 14 Table cl 3(f));
(f) prejudice any person’s legitimate business, commercial, professional or financial interests (s 14 Table cl 4(d)); and
(g) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 Table cl 4(e)).”
The Tribunal was satisfied that items (a) to (g) were relevant considerations in their deciding the Application for administrative review and accepted the Respondent’s argument in relation to same.
The Tribunal found that the most significant reason against disclosure was the risk of exposing a number of people to harm, serious harassment or serious intimidation.
The Tribunal affirmed the Respondent’s decision to refuse access to the information sought by the Applicant.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Tribunal considered the relevant sections of the GIPA Act in particular the overarching object of the Act which was for “open government to the public”. Furthermore, that the burden of establishing that a decision was justified was on the decision maker, in this case the Respondent University. The relevant presumption in favour of disclosure of government information was in play here unless it could be established that there is an “overriding public interest against disclosure.”
The “public interest considerations” are listed within a table contained in section 14 of the Act. Each of these considerations against disclosure contained in the Table must have the requirement that disclosure of the information “could reasonably be expected to” have the nominated effect. In determining the meaning of this phrase, the Tribunal had reference to its ordinary meaning and decided case law.
The Tribunal referred to the Table in section 14, more particularly clauses 1(d), (f), (g), 3 (b), (f), 4 (d) and (e) and was satisfied that these were relevant public interest considerations against disclosing the information sought by the Applicant. The most relevant consideration according to the Tribunal was the risk to academics and researchers of serious harassment and intimidation if the information was disclosed.
The Tribunal then determined where the balance lay between the competing interests for and against disclosure and conceded that it was a “question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.” referring to Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]; Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160 at [46].
As part of this balancing exercise, Tribunal found that there were a number of factors in favour of disclosure. More relevantly that disclosure could “facilitate public scrutiny of and promote transparency in university research”. The Tribunal also determined that disclosure could increase overall understanding of the events that led to the COVID-19 pandemic, its origins and the initial health response.
However, the Tribunal determined that the information being sought by the Applicant “merely touched upon these topics” and as such the weight was not significant in light of the information contained in the documents.
Conclusions of the deciding body
The Tribunal affirmed the Respondent’s decision to refuse access to the information sought by the Applicant.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of expression / right to information
- Health v. data protection
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Tribunal balanced the competing interests for and against disclosure. On the one hand there was the overarching object of the GIPA Act of open government to the public and on the other hand that access to government information is to be restricted where there is an overriding public interest against disclosure. The Tribunal considered the public interest considerations against disclosure and then balanced them against those public interest considerations in favour of disclosure as outlined in the GIPA Act.
