Search This Blog

Monday, September 29, 2008

SA FOI court decision shows relevance and irrelevance of age of documents

There were a number of decisions on freedom of information and related matters published by review bodies over the last month while I was away. None at first glance seem to be of earth-shattering significance, but I'll have a closer look as life resumes normal.
Review decisions in South Australia, beyond the Ombudsman, rest with the District Court and are relatively rare. Judge Trenorden in Milton v The City of Unley[2008] SADC 116 last week found two of 16 documents in dispute exempt, but the Council's weak arguments to support the exemption claims in respect of the other 14 received short shrift.

The Council unsuccessfully argued that some documents concerning his apparently widowed mother could be refused to the applicant, her only son and the person accepted by the council as her personal representative (although probate had not been granted to him or anyone else), on the basis of the personal affairs exemption. The South Australian Act stipulates (section 26(5)) the exemption does not apply where the personal representative or nearest living relative seeks access to documents of a deceased person.

Not surprisingly the council also struck out with claims that it would be contrary to the public interest to disclose four of the five documents that satisfied the first part of the internal working document exemption. Judge Trenorden noted the documents were variously 19 to 23 years old, and could find no public interest that would be advanced by non disclosure.The fifth document was exempt but not for the reason argued by the council.

The document, containing information the Council sent to the Mental Health Review Board, was exempt as a document prepared for the purposes of proceedings heard by the tribunal. Another, an Administration Order by the Guardianship Tribunal,was exempt because it had been prepared by the tribunal following proceedings.

These findings illustrate why some exemptions that provide blanket coverage of certain types of documents need to be reviewed in SA and elsewhere where they sit on the statute book- while the aged nature of information had been important in finding working documents were not exempt, it was irrelevant in the case of these exemption claims that the documents were 19 and 22 years old. Public interest or harm tests could not be considered.

No comments:

Post a comment