Government Information (Public Access) Act 2009 NOTICE OF DECISION Applicant: Mr Thomas Joyner File Ref: 2016/2340 Decision-maker: Mr Alex Maitland Date of decision: 1 June 2016 Table of contents 1. Summary of access application .. 2 2. Decision .. 2 3. Information already available to you .. 3 4. Searches for information .. 3 5. The public interest test .. 3 5.1 Public interest considerations in favour of disclosure .. 4 5.2 Personal factors of the application .. 4 5.3 Public interest considerations against disclosure .. 4 Considerations 1(f) and Responsible and effective government .. 4 6. Consultation .. 7 7. Balancing the public interest test .. 7 8. Form of access .. 7 9. Review rights .. 8 10. Further information .. 8 11. Schedule documents not released .. 9 Notice of Decision 1. Summary of access application On 6 May 2016 the University received payment for your access application under the Government Information (Public Access) Act 2009 (?the GIPA Act"). You sought access to: The number of sexual assaults reported on University of Sydney campuses and/or University?owned land between May 201 1 and May 2016. 2) The number of perpetrators of reported sexual assault on University of Sydney campuses and/or University-owned land who received disciplinary action between May 2011 and May 2016. 3) Any reports and/or summaries relating to 1) or (2) filed between May 2011 and May 2016. 4) Any report and/or summary of data collected through the University of Sydney's sexual harassment survey conducted in 2015.? You were not seeking access to personal information. 2. Decision I am authorised by the principal officer, for the purposes of section 9(3) of the GIPA Act, to decide your access application. I have decided: 0 under section 58(1)(a) to provide access to some of the information; and 0 under section 58(1)(0) that some of the information is already available to you; and 0 under section 58(1)(d) to refuse to provide access to some of the information because there is an overriding public interest against its disclosure. These decisions are reviewable under section 80(d) of the GIPA Act. The information to be provided to you is contained in Annexure 1 to this Notice of Decision. See Part 8 of this Notice for further details. In this Notice i will explain my reasons. To meet the requirements of section 61 of the GIPA Act, I need to tell you: the reasons for my decision and the findings on any important questions of fact underlying those reasons, and the general nature and format of the records containing the information with reference to the relevant public interest considerations against disclosure. (See the attached Schedule of documents not disclosed) Notice of Decision 3. Information already available to you Part 4 of your application sought access to ?Any report and/or summary of data collected through the University of Sydney?s sexual harassment survey conducted in 2015." The report on the survey, Creating a Safer Community for All: Sexual Harassment and Assault on Campus is available at: 4. Searches for information Under the GIPA Act, we must conduct reasonable searches for the information you asked for in your application. Enquiries for relevant information were made with: The University?s Campus Security 0 Student Support Services - The Human Resources Case Management unit. In addition, a search was made of the University's recordkeeping system, the search terms being ?sexual assault? and ?assault?. Relevant reports were provided by Campus Security and the Student Affairs Unit of Student Support Services. 5. The public interest test Under section 9(1) of the GIPA Act, you have a legally enforceable right to access the information you asked for, unless there is an overriding public interest against its disclosure. Further, under section 5 of the GIPA Act, there is a presumption in favour of disclosing government information unless there is an overriding public interest against its disclosure. To decide whether or not there is an overriding public interest against disclosure of the information you asked for, I applied the public interest test, which is set out in section 13 of the GIPA Act. I applied the public interest test by: identifying any public interest considerations in favour of disclosure; identifying any relevant public interest considerations against disclosure; and deciding where the balance between them lies. I did this in the way required by section 15 of the GIPA Act, which is: in a way that promotes the objects of the GIPA Act; with regard to any relevant guidelines issued by the Information Commissioner Notice of Decision without taking into account the fact that disclosure of information may cause embarrassment to, or a loss of confidence in, the Government (as that fact is irrelevant); without taking into account the fact that disclosure of information might be misinterpreted or misunderstood by any person (as that fact is irrelevant); and with regard to the fact that disclosure cannot be made subject to any conditions on the use or disclosure of information. 5.1 Public interest considerations in favour of disclosure Under section 12(1) of the Act, there is a general public interest in favour of disclosing government information. Section 12(2) of the Act sets out some examples of other public interest considerations in favour of disclosure. However, I am not limited to those considerations in deciding your application. in my view the following public interest considerations in favour of disclosure apply when considering the documents in issue: - The general public interest in favour of disclosure of government information; The public interest in the promotion of safer University campuses; - Some information has been made public. 5.2 Personal factors of the application I can also take into account any personal factors of your application, under section 55 of the Act. I am not aware of any personal factors relevant to your application. 5.3 Public interest considerations against disclosure When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the Table to section 14 of the GI PA Act. To show that they are relevant to the information you asked for, i need to consider whether they could reasonably be expected to have the effect outlined in the Table. I give the words "could reasonably be expected to" their ordinary meaning, that is reasonable, not irrational, absurd or ridiculous. Considerations 1(f) and Responsible and effective government These considerations are relevant to the information held by the University's Counselling and Services (CAPS). CAPS is a part of Student Support Services. The website1 explains what they do: counsellors are trained to provide effective evidence-based interventions to help students build improve well-being and achieve academic success. Individual counselling is 1 Notice of Decision free, confidential and available to all currently enrolled undergraduate and postgraduate students of the University of Sydney." Clauses 3(a) and 3(b) of the Table at section 14 of the GIPA Act state: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions prejudice the effective exercise by an agency of the agency?s functions, (9) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, I will deal with these public interest considerations together as they are related. Section 6 of the University of Sydney Act 1989 sets out the object and functions of the University in section 6. The object is the promotion of scholarship, research, free enquiry, interaction of research and teaching and academic excellence. The University's functions include "such general and ancillary functions as may be necessary or convenient for enabling or assisting the University to promote the object and interests of the One of those general and ancillary functions is the provision of support services for students of the University. The students client who attend CAPS are told that their personal information will not be discussed outside CAPS without their written permission, other than in exceptional circumstances. The information provided to the counsellors is in confidence so the counsellors can provide the appropriate advice. The counsellors who are employed in CAPS are registered and are bound by the codes of ethical conduct of the Board of Australia and the Australian Society. Considerations 3 and individual rights These considerations concern the information in the reports from the Student Affairs Unit and Campus Security. Clauses 3(a) and 3(b) of the Table at section 14 of the GIPA Act state: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: reveal an individual's personal information, contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 Notice of Decision There is an important distinction between the two considerations stemming from differing definitions of personal information in the GIPA Act and the PPIP Act, as referred to above. The GIPA Act defines personal information in Schedule 4 as follows: 4 Personal information In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual?s fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: information about an individual who has been dead for more than 30 years, information about an individual (comprising the individual?s name and non- personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.? Sections 18 and 19 of the PPIP Act contain the information protection principles which regulate disclosure of personal information by the University. Section 18 states: 18 Limits on disclosure of personal information A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.? 6 Notice of Decision Consideration 3(b) in the Table at section 14 of the GIPA Act makes reference to a contravention of information protection or health privacy principle resulting from the disclosure of the information. For 3(b) to apply the information in question must meet the definition of ?personal information" as defined in section 4 of the PPIP Act. That definition is broadly similar to the GIPA Act definition, other than some exemptions that are not relevant to your application. The personal information in the documents includes names. However, as "personal information" includes information that reasonably be ascertained from the the contextual details in the documents would enable individuals to be identified. None of the exemptions set out in section 18(1)(a) to of the PPIP Act apply to the information and therefore, disclosure would contravene that information protection principle. 6. Consultation No consultation was required under section 54 of the GI PA Act. 7. Balancing the public interest test The public interest considerations against disclosure of the information are set out above at sections 4.3 of this notice. I am required to consider whether the public interest considerations could reasonably be expected to have the effect outlined in the Table at section 14. Both the Director of Student Support Services and the Head of CAPS hold the view that to disclose any information provided in confidence by clients of CAPS could reasonably expected to result in a loss of trust in the service. This loss of trust could reasonably be expected to result in fewer students seeking the counselling services offered by the University attending CAPS. The public interest in preserving the ability of CAPS to provide its services to the University student body outweighs that in the disclosure of the information. In relation to the reports from the Student Affairs Unit and Campus Security, the personal information they contain requires a high degree of protection by the University. The overriding public interest is in the protection of information concerning persons involved in sexual assault, indecent assaults or acts of indecency. However, I recognise the public interest in providing statistical information regarding such matters on University property in a way that protects personal privacy. 8. Form of access Section 75 allows the University to respond to an access application by creating a new record of the information sought. Under section 76 the University is authorised to provide access to information that is in addition to the information applied for, unless there is an overriding public interest against its disclosure. Accordingly, attached at Annexure 1 is a new record containing information relevant to your application. Notice of Decision 9. Review rights If you disagree with any of the decisions in this notice that are reviewabie, you may seek a review under Part 5 of the GIPA Act. Before you do so, I encourage you to contact Mr Tim Robinson, to discuss your concerns. His contact details are set out below. You have three review options: - internal review by another officer of this agency, who is no less senior than me 0 external review by the Information Commissioner, or - external review by the NSW Civil and Administrative Tribunal (NCAT). You have 20 working days from the date of this Notice to apply for an internal review. If you would prefer to have the decision reviewed externally, you have 40 working days from the date of this Notice to apply for a review by the information Commissioner or the NCAT. To assist you, i have enclosed a fact sheet published by the Information and Privacy Commission (IPC), entitled Your review rights under the GIPA Act. You will also find some useful information and frequently asked questions on the website: You can also contact the IPC on freecall 1800 IPC NSW (1800 472 679). 10. Further information If you have any questions about this notice or would like any further information, please contact Mr Robinson on 9351 4263 or by email to tim.robinson@sydneyeduau. Alex Maitland Group Secretary Notice of Decision 11. Schedule documents not released Description of record that No of Decision Public interest considerations contains the information pages against disclosure (Table at 5.14) Report from SSAU 4 Not release 3 and Security Incident Report 4 Not release 3 and Security Incident Report 38 Not release 3 and Notice of Decision Annexure 1 - Information relating to parts 1, 2 and 3 of application Matters reported to Campus Security or Student Affairs Unit - May 2011 to May 2016 Attempted sexual assault 1 Sexual assaults 1 Indecent assaults 10 Acts of indecency 5 (In six of the matters the NSW Police Force were involved. The University is not necessarily aware of the outcomes or the consequence of any charges laid.) Notes: The actions reported above have been classified in accordance with definitions in the NSW Crimes Act 1900. Sexual Assault is contained in section 61 of the Crimes Act which states: ?Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.? The offence of Indecent Assault is defined in section 61 of the Crimes Act ?Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years." In general terms Indecent Assault includes unwanted touching of a sexual nature. The offence of Act of lndecency is contained in 61 of the Crimes Act ?Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years. - Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.? In general terms an Act of lndecency includes unwanted and unsolicited actions of a sexual nature which do not include touching. Disciplinary actions taken by the University Six of the matters reported above resulted in disciplinary action by the University. Seven of the matters related to complaints against persons who were not students or staff of the University and so outside its jurisdiction. 10