ADT FOI decision: Harbour Bridge photos could facilitate terrorist attack

The ADT in Hutchinson v Roads and Traffic Authority (2006) NSWADT 147 has made its first decision concerning the application of the anti terrorism exemption in Clause 4A Schedule 1 of the NSW FOI Act - the exemption added to the Act in May 2004.

The applicant sought access to documents relating to "structural rust and/or lack of proper painting maintenance on the Sydney Harbour Bridge". Some documents and photographs were disclosed by the RTA but access was refused to 53 photographs on the basis that there was a reasonable expectation that disclosure could facilitate the commission of a terrorist act.

Some evidence was given in closed session, and parts of the decision have been suppressed so its difficult for anyone else to make judgements. The Tribunal accepted that even though anyone can photograph the bridge and books and photographs about it are widely available, these photographs showed parts of the bridge not normally accessible. Deputy President Hennessy appears to have been convinced by the RTA that the exemption applied generally in that "any increase to the number of images of the structure of the bridge over and above those currently available to members of the public" could facilitate the commission of a terrorist act, or as she put it, it was not irrational, absurd or ridiculous to expect that this could occur.

In a separate decision Kerr v Roads and Traffic Authority (2006) NSWADT 147 the Tribunal upheld the RTA's refusal of access to documents concerning a bus lane monitoring project, on the grounds that the documents were Cabinet documents covered by Clause 1 Schedule 1 of the Act. The RTA had originally claimed 74 documents exempt but 50 of the documents had been disclosed to the applicant (a Sydney Morning Herald journalist) after consultation with the Cabinet Office. The Tribunal found the 24 documents in dispute satisfied the exemption.