FOI ADT decisions: round 15, both still standing

Two Appeal Panel decisions and another Tribunal decision refusing leave to appeal against a decision to not issue a summons for evidence requested by the FOI applicant, bring to 15 the number of reported ADT decisions in 2005-2006 involving McGuirk and the University of New South Wales - and it's only August.

In University of New South Wales v McGuirk (2006) NSWADTAP 38 the Appeal Panel overturned a decision by the Tribunal to grant the FOI applicant access to a document containing legal advice.

The original decision was that while the document contained legal advice, privilege had been waived as there was evidence that a member of the University Council had given a copy of the document to a member of the council of another university. The Tribunal said that in these circumstances the onus shifted to the University to show that privilege had not been waived, and that the University had failed to satisfy this obligation.

The Appeal Panel said this constituted an error of law and went on to review the merits of the decision.

It held that although there was some evidence that the Chancellor of the University may have authorised the disclosure, the Chancellor did not have authority to waive privilege on behalf of the University. Privilege could only be waived by a resolution of the University Council, or a decision by an officer of the University authorised to make such a decision. There was no evidence of either action.

In McGuirk v University of New South Wales (2006) NSWADTAP 39 the Appeal Panel upheld the FOI applicant’s appeal against a Tribunal order to pay $1000 towards the costs of the University in respect of a matter withdrawnon the day of the hearing. The Tribunal had ordered the payment “as a sanction” in light of the fact that it had been made clear to the applicant that the Tribunal had no jurisdiction given that there had not been a valid application for internal review.

The Appeal Panel said that the ADT’s powers to award costs were limited to “special circumstances” and that this power was analogous to that of the courts when deciding whether to award costs against a solicitor. This meant that even where “special circumstances” were evident, cost powers could not be used as a penalty or a deterrent – cost orders were a means of compensating a party who suffers, not punishing the party who causes the problem.