Recent NSW FOI ADT decisions

A quick catch up on some recent FOI decisions from the NSW Administrative Decisions Tribunal.

In Ferns v Corrective Services (2006) NSWADTAP 50 the Appeal Panel, after finding an error of law in the Tribunal’s failure to provide adequate reasons for decision, upheld the refusal of access to documents on the grounds of legal professional privilege. The only noteworthy aspect was the finding that an invoice from a firm that undertook covert surveillance of the FOI applicant in connection with Industrial Relations Commission proceedings, attracted the legal professional privilege exemption: it was a communication between a lawyer and a third party engaged to assist in connection with legal proceedings, and if disclosed would reveal the extent of surveillance undertaken.

In Franks v Warringah Council (2006) NSWADTAP 53, the Appeal Panel dismissed the FOI applicant’s appeal against the Tribunal finding to refuse access on the grounds of legal professional privilege.

Coroneo v Woollahra Council 2006 NSWADT 286 also saw claims for legal professional privilege upheld.

YN v Department of Housing (2006) NSWADT 79 and YN v Department of Housing (2006) NSWADTAP 9 involve issues concerning leave to appeal, dismissal on the grounds that the application was frivolous and vexatious, and resulted in a order that the applicant pay the agency's costs because of a failure to appear.

Hutchinson v Roads and Traffic Authority NSW (2006) NSWADT 290 is about whether documents concerning aspects of road construction on the Hume Highway in 1995, were held by the agency. The Tribunal found there were reasonable grounds that some documents existed and that the RTA had not taken all reasonable steps to locate them. It ordered a further search of 405 files to identify whether any are likely to contain relevant documents.

Dunn v Energy Australia (2006) NSWADT 288 and Schubert v Department of Environment and Conservation (2006) NSWADT 296 both involve issues concerning access to details of a complaint. While there are some differences in the circumstances, the two cases involved very different results.

The former was a case where Dunn had written to the agency complaining about the conduct of a neighbour employed by the agency while driving an agency vehicle. The Tribunal upheld the agency decision to provide documents concerning the complaint and investigation to the person complained about, despite Dunn’s objections.

In Schubert, the FOI applicant, an employee of the agency sought access to documents concerning a complaint made about her. The Tribunal found the documents exempt on personal affairs and confidentiality grounds.

Cui v Leichhardt Council (2006) NSWADT 298 the Tribunal upheld a decision to refuse access to plans of the Balmain Police Station as it existed in 1989. The Tribunal found the documents exempt on the grounds that disclosure would endanger the security of the building, and surprisingly on the grounds that they would have an unreasonable adverse effect on the business affairs of the NSW Police.

In Sawires v NSW Police (2006) NSWADT 302 the Tribunal upheld a decision to refuse access to information concerning the FOI applicant on the grounds that disclosure could be expected to prejudice an ongoing investigation, and or would enable texistencence or identity of a confidential source to be ascertained.