ADT Appeal Panel clarifies jurisdiction concerning Schedule 2 of FOI Act

The ADT Appeal Panel (McGuirk v ICAC (2006) NSWADTAP 17) has decided that the Tribunal has jurisdiction to review a determination by the ICAC to refuse access to a report on the grounds that it concerns the corruption prevention and investigative functions of the Commission.

In the original decision and a previous decision the ADT had concluded that it did not have jurisdiction where an agency refused access to a document relating to a function specified in Schedule 2 of the FOI Act.

The Appeal Panel said that the Tribunal only lacked jurisdiction where all functions of a particular agency were excluded from the operation of the Act by such a reference in Schedule 2.

As only some, not all functions of the ICAC were excluded, the Tribunal was able to consider the matter.

The Appeal Panel also found that even though some functions of the ICAC were excluded from operation of the Act, Section 24 imposed a duty on the agency to make a determination where it was in receipt of a valid FOI application.

The application in this case has been referred back to the ICAC.