NSW review processes give Bleak House a shake

Three recent ADT decisions illustrate that resolution of FOI and privacy matters by the Tribunal can involve long drawn out processes. At the end of the day despite many conferences and hearings neither of the two applicants in these cases have anything to show for a couple of years of endeavour.

The two FOI decisions involve the same parties, similar issues, and (unhelpfully) have been given the same citation by the Tribunal – Hutchison v Roads and Traffic Authority (No.2) (2006) NSWADT232 and Hutchinson v Roads and Traffic Authority (No.2) (2006) NSWADT 233.

Both originated with FOI applications in 2004, involved refusal on the grounds of substantial and unreasonable diversion of resources, and end up finally with decisions by the Tribunal to refuse to remit the matter for further consideration by the agency. The Tribunal in each instance acknowledged that this probably meant that the only avenue available to the applicant was to start the process all over again by making a fresh FOI application – almost 2 years after ADT review had been first sought.

In GR v Department of Housing (No.2) (2006) NSWADTAP 34 the Appeal Panel rejected an application to overturn a Tribunal finding that there had been no contravention of privacy principles and no basis for the award of damages. This matter started with an application for review of conduct in October 2002. The Tribunal originally found that a departmental officer’s comment to a radio program producer that GR was a “known troublemaker” was a breach of the disclosure principle in Section 18 of the Privacy and Personal Protection Act. It refused an application for damages. The Appeal Panel set aside the decision to refuse damages on the basis that the applicant had not been given sufficient opportunity to present evidence about the basis on which damages were sought.

Another Tribunal hearing followed but the day after the NSW Court of Appeal made a decision that only information recorded in some form in agency records was covered by the Act. Up to that time the Tribunal view was that the disclosure principles applied even to iinformation known to an agency employee but not recorded in any way. The Tribunal in December 2005 decided, in the light of the Court of Appeal ruling, that there had been no contravention in this case, and that there was no basis for an award of damages. It commented that if the information had been recorded, it would have awarded $15,000.

The applicant appealed this finding. The Appeal Panel after satisfying itself that the words “known troublemaker” or words to similar effect were not recorded in departmental records rejected the appeal.

The interesting legal issue in the decision involves consideration of the power of a tribunal to reopen a matter already determined in the light of a change in interpretation of the law by a binding higher court ruling.

Those of you who have been watching Bleak House on ABC TV recently will know about the slow grinding processes of the law in Dickensian times.

The more things change, the more they stay the same.