Rare glimpse of details of Ombudsman investigation of FOI complaint

The Sydney Morning Herald reports today the findings of the NSW Deputy Ombudsman following a complaint by a journalist about the refusal of the Roads and Traffic Authority to disclose any of the 59 documents sought under the Freedom of Information Act concerning a $25 million payment to the operator for delays of road changes around the privately owned Lane Cove motorway.It is a hot issue because the delay and the payment meant that the public impact of the changes was neutralised in the lead up to the state election in March last year.

The article as posted on the web highlights some unusual aspects of the dealings between the RTA and the operator, and includes a download of the Ombudsman's report of the investigation. Such reports rarely find their way into the public domain, as the Ombudsman does not have authority to release other than to the agency and the complainant, but there is no limitation on what the complainant can do with it, so this one has been shared with us all.

A couple of points. This process of redress can be very slow- the application to the RTA was lodged in February 2007, and the applicant complained to the Ombudsman in June 2007. The report was completed at the end of April 2008.

There are limits on the Ombudsman's powers to look at claimed exempt documents for himself. The Deputy Ombudsman wasn't able to see 39 of the 59 documents because the head of the Department of Premier and Cabinet certified they were cabinet documents covered by the cabinet document exemption in the FOI Act, and thus beyond the reach of the Ombudsman's powers to require production to him.

An agency can hang in there even when unable to back claims with evidence. The RTA initially stuck to its guns about the exempt status of the rest of the documents, and even came up with a new reason for refusing access to some, based on a confidentiality provision in a contract that hadn't been mentioned previously. Faced with the Ombudman's preliminary findings, the RTA subsequently ditched some claims that they decided on reflection would not hold water.

At the end of the day all the Ombudsman can do is recommend an agency reconsider. The final report finds the RTA acted unreasonably and recommends everything except (the documents certified as cabinet documents) and a couple of emails between the RTA and its legal advisers should be released because the exemption claims are not made out. The RTA may, not must, act on these recommendations. It is now 15 months since the documents were sought.

Makes you wonder why we can't get the right decision the first time although no prizes for guessing why this does not happen when you can delay access to documents for 15 months, and then have the option of changing your mind, or not, as the case may be.

The report's discussion of the interpretation of the exemptions for cabinet documents (8.2), internal working documents (8.3), business affairs documents (8.4), confidentiality clauses in a contract (8.5), financial and property interests of an agency (8.6) and public interest (8.7), should be of particular interest to regular users of the NSW Act, inside or outside government.