NSWADT FOI decision limits business affairs exemption

In Ferns v NSW Police (2006) NSWADT 198 the NSW Administrative Decisions Tribunal considered the exempt status of documents that revealed information about access to the Police Computerised Operation Policing System by officers of the Department of Corrective Services.

The decision involved consideration of two exemptions – whether the disputed documents disclosed information concerning the business affairs of the Department of Corrective Services (Clause 7 Schedule 1 of the FOI Act) and/or whether the documents had been created by the Corrections Intelligence Group of the Department in the exercise of its functions concerning the collection, analysis or dissemination of intelligence (Clause 4(3B) of Schedule 1).

The Tribunal found that the documents were not documents concerning business affairs – they were “purely administrative in nature and have been created so that the Department was able to perform its administrative functions”. It appears to have rejected the interpretation of the terms business, commercial and financial affairs of a government agency adopted by the Commonwealth Administrative Appeals Tribunal in Saxon and Australian Maritime Authority (unreported AAT 19 June 1995) – that these words are “words of very wide application and cover all the aspects of an organisation or undertaking, both fiscal and administrative”; and that they should not be narrowly construed. (This case was decided by the current NSW Ombudsman, Bruce Barbour, then a member of the AAT).

Some NSW government agencies routinely cite the Saxon case and the broad interpretation of business affairs in arguing a Clause 7 exemption. The NSW Premier’s Department FOI Procedures Manual (page 95) says that business affairs issues may arise where an agency is dealing with documents provided by or from other government agencies. “On advice from the Deputy Crown Solicitor the “business affairs” of an agency are the things which it does in its official capacity and therefore it would follow in the normal course that the great bulk of the documents generated by agencies would relate to their business affairs”.

The Ferns decision is the first ADT decision to make the distinction between business and administrative functions.

The Tribunal stopped short of endorsing the approach taken by the Queensland Information Commissioner (Johnson v Queensland Transport; Department of Public Works (2004) QICmr1 -Decision 1/2004 ) that the business affairs exemption only applies to a government agency to the extent that it is engaged in an undertaking for the purposes of generating income or profit.

The Tribunal also rejected submissions by the agency that the exemption in Clause 4(3B) should be interpreted broadly. It decided in effect that the word “created” means what it says: documents created by other parts of the Department of Corrective Services or the NSW Police were not documents created by the Corrections Intelligence Group of the Department.

The Tribunal also reaffirmed its view that it had powers to make the correct and preferable decision regarding a document claimed to be exempt under Clauses 1, 2 or 4 (“restricted documents”). The contrary position has been argued on behalf of the Premier’s Department for years, but the Tribunal shows no willingness to reconsider the matter.