FOI decisions around the country in June

The most important recent Freedom of Information decision (at least in NSW) was the NSW Court of Appeal ruling that the Administrative Decisions Tribunal had no power to examine issues associated with the adequacy of an agency search for documents - see my post and this commentary by Matthew Moore in the Sydney Morning Herald.

The following is a summary of other reported review decisions around the country over the last month. Overall assessment: occasional wins for applicants, sometimes as a result of an agency concession once external review is underway; NSW has the busiest review process; and it's a tough game for an applicant who spends money and wins against a Federal Government agency well represented at taxpayer expense, and then seeks an order for costs, as winning is but one of several criteria.

Federal Administrative Appeals Tribunal
Collins and Indigenous Business Australia[2008] AATA 505
The Tribunal declined to recommend to the Attorney General that the Government pay the $6000 in costs incurred by the applicant in contesting an agency decision to refuse access to documents. The agency had conceded before the Tribunal hearing by releasing what were claimed to be 99% of the requested documents, thus satisfying the threshold question that the applicant had been "substantially successful " in her claim. However the Tribunal was not satisfied that three of the four other elements necessary for exercise of discretion to make a recommendation were satisfied: the payment of the costs or any part of the costs would cause financial hardship to the applicant; the decision of the Tribunal on review will be of benefit to the general public; and the unreasonablity of the agency decision to refuse access.

Bienstein and Attorney General (Commonwealth of Australia) [2008] AATA 490
Consideration [42-50] of the law concerning what constitute all reasonable steps to locate a document. Tribunal satisfied [51-56] that those steps have been taken in this case. The Commonwealth Act is silent on who is to make a decision on an application to a minister for documents but [33] "it would seem that the FOI Act has not displaced the general principle that a Minister may authorise another to make a decision on his or her behalf. The decision would be made in the Minister’s name and the Minister would accept responsibility for it.”

Queensland Information Commissioner
LKJ and Queensland Police, A Federal Member of Parliament(Third Party) [210183, 2 June 2008]
The Police had responded to an application (by LKJ) for all documents held in relation to a phone call from the office of an(unnamed) member of Federal Parliament on a particular date or any communications since, by neither confirming or denying it held any relevant documents. In the course of the review, this claim was dropped and a number of exemptions claimed for three documents held. The First Assistant Commissioner rejected a claim that disclosure of a warning posted on the Police database would prejudice the maintenance and enforcement of the system or result in a person being subject to serious harassment or intimidation; that disclosure of another document containing advice or opinion would result in specific and tangible harm to the public interest; and ruled the names and identifying particulars of electorate office staff in two of the documents was contrary to the public interest because of physical safety concerns.

Western Australian Information Commissioner
Stapleton and Attorney General Re[2008] WAICmr 21
Exemption upheld for legal privilege claim, and uniquely in WA, the Commissioner has no powers to consider whether privilege was waived as a result of the conduct of the agency.

Victorian Civil and Administrative Appeals Tribunal
Currie v Building Commission(General)[2008[ VCAT 979
Exemptions upheld for information provided in confidence and subject to legal professional privilege in the course of an investigation into the conduct of duties by a council inspector, and declined to exercise discretion to require disclosure. However sympathy for the applicant who had been badly done by:

"I wish to indicate that I have some sympathy for the applicant because clearly she has been put to a lot of expense, discomfort and a waste of time by the fact that her house has been placed over a sewer pipe. It is all most unfortunate and I can understand that the applicant is very angry about such a matter. However, that does not mean that the recognised building surveyor, respondent, the council or the Water Authority are necessarily to blame. I do not know. That may be a matter for another tribunal or court to decide on another day. But, I think it is unfortunate that this problem has occurred and I can well understand that the applicant is upset and concerned about the matter and has indeed wanted to find out all the information in relation to it. However, I believe that releasing these documents would neither be in the public interest nor as a matter of law be permissible to be released, bearing in mind the findings I have made."

NSW Administrative Decisions Tribunal
Parsons v Baulkham Hills Shire Council[2008] NSWADT 188
The Tribunal set aside the agency determination, concluding that disclosure of internal working documents concerning investigations by Council officers into alleged unlawful clearing of land, would not on balance be contrary to the public interest. While the public interest during the investigation phase may have favoured non-disclosure, the decision to prosecute had been taken, disclosure might assist the applicant in defending the case, and there was no evidence that disclosure would have any detrimental effect on council operations or interests. (Judicial Member Wilson is a rare member of the Tribunal who manages again in this case to hand down a decision without once mentioning a precedent).

Cianfrano v New South Wales Treasury[2008] NSWADT 182
The Tribunal upheld the agency decision to refuse access to two documents concerning the sale of the Sydney Markets on the basis of the cabinet document/executive council exemptions, and parts of a third on the legal privilege exemption. Although it declined to exercise its discretion to require disclosure of exempt documents, the Tribunal rejected [31] a submission from the agency that it had no discretion in the matter because of a direction issued by the Premier about disclosure of cabinet documents generally. The agency released several documents during the course of the proceedings that had previously been claimed exempt.

Cianfrano v Audit Office of New South Wales[2008] NSWADT 183
The Audit Office is exempt from the operation of the Act (Schedule 2) in relation to its "investigative, audit and report functions." The applicant sought access to background documents relating to two specific pages of the Auditor-General’s Report to Parliament for 2001 and one specific page of the Auditor-General’s Report to Parliament for 2002. On a preliminary issue, the Tribunal determined it had jurisdiction to decide whether the documents claimed to be exempt were documents relating to ‘report functions’. The Tribunal rejected [18] arguments by the agency that a Supreme Court precedent established it had no jurisdiction to consider such an application. Following the recent decision of the Court of Appeal, the Tribunal had no jurisdiction to consider the adequacy of the agency's search for relevant documents.

Black v NSW Police[2008] NSWADT 177
The Tribunal upheld a decision to refuse the applicant, who held a firearm license, access to information about the person who supplied information to the Police that prompted the temporary surrender of the weapons on grounds that disclosure would reveal a confidential source in relation to the enforcement or administration of the law.

Dezfouli v Justice Health [2008] NSWADT 175
Tribunal upheld agency decision to refuse access to some parts of the medical file to a patient at the Long Bay Forensic Prison Hospital . Relevant exemptions included danger to life or security, adverse effect on effective performance of agency functions, and personal affairs. Strong weight given to the context in which the agency operated in considering the exemption claims. Tribunal accepted [39]:

"evidence as to the need for nursing and other health professional staff employed by the respondent to make comprehensive and accurate notes of matters relevant to the treatment provided to patients, and that such notes may include information and observations that might be perceived by a patient to be negative. From my examination of the relevant documents, they contain information identifying staff of Justice Health, being the full name, first name, or in some instances, signature of staff members."

Cianfrano V New South Wales Department of Premier and Cabinet[2008] NSWADT 174
Tribunal has no jurisdiction to consider an application for external review of a request for an advance deposit, only a decision by an agency to refuse to continue to deal with an application because a requested deposit was not paid.There is no provision in the Act for a "deemed decision" to refuse to continue to deal with an application [34].

Saggers v Director General Department of Premier and Cabinet Ministerial & Parliamentary Services [2008] NSWADT 164
Exemption upheld for legal privilege claim for letter of instruction to the Crown Solicitors Office to act on behalf of the Department in the sale of the assets of Sydney Markets. Tribunal satisfied[16] "that in providing legal advice and assistance in the process of lease and sale of the markets site the CSO had the requisite degree of professional independence from the respondent." Tribunal[27] fails to resolve uncertainties about its "residual discretion " to require disclosure of a document found to be exempt on legal privilege grounds.

Fagan v Department of Education and Training [2008] NSWADT 163
Exemption claim upheld on basis that disclosure would constitute an offence under the Children and Young Persons (Care and Protection) Act. Tribunal [16-17] rejected the agency submission that revealing "which Act this offence provision is contained in....would in itself reveal information which may constitute an offence under that Act and would render this determination an exempt document under the FOI Act."

McGuirk v University of New South Wales [2008] NSWADT 159
Dealt with several issues concerning jurisdiction. The Tribunal has no authority to consider a late application for review lodged more than 60 days after a reviewable decision[19-29]; where the applicant failed to seek internal review of a "deemed refusal"within 49 days of the lodgement of the original application and the agency exercises its discretion to refuse a late application, the Tribunal has no jurisdiction to consider a subsequent application for external review[ 44-45]- but [ 46] this observation:

"In my view, where, as in this application, an internal review request is made out of time following a ‘deemed’ determination of refusal of access to the documents requested, it would be prima facie unreasonable for an agency not to exercise its discretion to allow the late application."

On another point the Tribunal commented[at 50] that "the approach adopted by the University in this application is unnecessarily restrictive and arguably contrary to the Tribunal’s obligation ‘to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’."