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Thursday, January 25, 2007

NSW ADT to consider release of exempt documents

Three FOI decisions handed down by the NSW ADT during January are not conclusive. In all three cases, the Tribunal has called for submissions and set dates for consideration in the next few weeks concerning whether it should require disclosure of documents found to be exempt under the provisions of the FOI Act.

The NSW Supreme Court late last year (University of NSW v Gerard Michael McGuirk (2006) NSWSC 1362) found that the ADT had a discretion to order the release of an exempt document, reversing previous Tribunal decisions that it had no such powers.

These three cases - one before the Tribunal Appeal Panel - will be the first occasion where consideration of the relevant criteria for such an order is considered. It will be interesting to see how the Tribunal addresses the issue. In a major decision discussing these issues four years ago, Tribunal President Judge O'Connor took a very narrow view of the powers and the circumstances in which they should be exercised (Neary v The Treasurer NSW (2002) NSWADT 261).

It's likely that much will turn on the nature of the documents, and the exemptions claimed. The issue isn't whether the documents satisfy exemptions - its whether there are good reasons why the documents shouldn't be disclosed.

v University of NSW (2007) NSWADTAP 1 concerns a memorandum of advice to the Vice Chancellor from an employed solicitor concerning legal proceedings for alleged breaches of the Protected Disclosures Act, and the legal professional privilege exemption.

v Attorney General's Department (2007) NSWADT 8 concerns documents relating to the preparation for, and participation in, two earlier FOI applications seeking access to documents from the Premier's Department, found to be exempt on legal professional privilege and business and personal affairs grounds. One important finding in this case was that NSW ADT proceedings were "adversarial" and documents prepared for use in FOI matters before the ADT could attract a privilege claim. This is contrary to a recent decision of the NSW Supreme Court (Ingot Capital Investmanets v Macquarie Equity Markets (2006) NSWSC 530) where it found that proceedings in the Federal Administrative Appeals Tribunal were not adversarial and documents prepared for use in that body were not subject to privilege.

McGuirk v The Cabinet Office (2007) NSWADT 9 concerns documents found to be exempt as Cabinet documents. This case will provide an interesting insight into government thinking about access to information. The documents concern a 1999 Government decision to introduce legislation that would amend other acts to permit the same person to occupy the positions of Ombudsman and Independent Commissioner Against Corruption.

This apparently was at the suggestion of Irene Moss, the then Ombudsman who was appointed ICAC Commissioner. The Government introduced legislation in the Legislative Assembly on 18 November 1999 but it was subsequently withdrawn apparently in the light of opposition in the Legislative Council. The Cabinet Office has satisfied the ADT that the documents attract the Cabinet document exemption but in the upcoming hearing that's not the issue. The question is whether these documents should be disclosed. Will the Cabinet Office be able to demonstrate harm to Government interests from disclosure of documents, now seven years old and concerning a matter that never proceeded? The documents in question include draft versions of the Bill, and communication between public servants about how to give effect to the government's wishes.

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