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Thursday, March 08, 2007

FOI in the news and the courts

While the Sydney Morning Herald reports on the handling of a high profile Freedom of Information application it made to Macquarie University, this decision (Howell v Macquarie University (2007) NSWADTAP10) by the Appeal Panel of the Administrative Decisions Tribunal canvases a number of separate issues concerning legal professional privilege and exemption claims for documents relating to the investigation of a complaint against a staff member, and disciplinary issues that arose.

The Appeal Panel upheld the University exemption claims, but has referred one document back for reconsideration, and asked the University to have another look at whether it should exercise its discretion to release the exempt documents.

In a decision not yet up on the web, Justice Simpson of the NSW Supreme Court in Independent Commission Against Corruption v Gerard Michael McGuirk (2007) NSWSC 147, overturned the Appeal Panel of the ADT on an issue about what an agency must do where it is in receipt of an application for documents concerning functions excluded from the operation of the FOI Act (Schedule 2). It restored the original decision made by the Tribunal

There are some strange aspects of the reasoning in the decision. Justice Simpson suggests that all that needs to be done is to simply tell the applicant that the documents sought are of a kind specified in Schedule 2. No formal determination under Section 24 of the Act is required. Justice Simpson says that such a decision would be still reviewable in the Tribunal, but seems to have missed the point that the FOI Act (Section 53) says the Tribunal has no powers of review unless a determination was made by the agency under Section 24 of the Act.

It must have made sense to Justice Simpson but mere mortals might scratch their head about this one.

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