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Wednesday, March 26, 2008

More run run, runaround

Same old dog, still chasing tail.

All you can say after reading this decision of the NSW Administrative Decisions Tribunal is that in addition to patience, persistence, time, energy, resources and a passable knowledge of the law, any FOI applicant who may be heading towards independent review also needs a calendar and a prompt system to alert them when an agency has failed to make a determination under the Freedom of Information Act. Otherwise they may find the door well and truly shut.

The applicant in this case was told on 19 March 2008, that the Tribunal had no jurisdiction to hear his application for review of a determination for an FOI application dated November 2006. The NSW Police Service had determined the application 97 days after it was received (statutory time frame 21 days).

The applicant sought internal review 9 days later. The Police Service determined that application on 6 June, 53 days later (statutory time frame 14 days).

The applicant lodged a request for external review with the ADT on 17 July, apparently comfortably within the 60 day time frame.

But no, the Tribunal found the application had been received out of time, because the applicant should have known that the Police Service failure to determine the internal review application constituted a deemed refusal. Time had started to run from 28 April when the decision should have been made. Calculating forward, any application to the Tribunal should have been lodged no later than 4 July. There is nothing to suggest that the Police brought all this to the attention of the applicant at the time or any time thereafter.

In line with earlier precedents the Tribunal decided it had no discretion to consider a late application, although a separate decision to this effect in another case is on appeal.

And finally not a word in the Tribunal decision about the tardy processing of the application by the Police Service. Some reports we have seen suggest that delays in processing there are systemic.

As the Premier, by his silence implies, FOI works well in NSW, particularly after all the helpful guidance provided in the Government's FOI manual, and the 9 years of work that went into it.


  1. Anonymous12:22 pm

    FOI will always be slow until record management is adequate, allowing easy discovery of documents, and classification of confidentiality BEFORE creates/edits so evaluation is not needed after a request (and adherence to the principal that "that which is not prohibited is permitted"), and auditors can review the percentage of non-public records for reasonableness.

    The records management in Victoria (NSW is probably no different, and Federally it's a mess despite good efforts by AGIMO and NAA) was recently slammed by an auditor (reviews and links here)
    including the following comments:

    * Agencies do not have in place comprehensive frameworks to manage their records.

    * most agencies did not adopt a strategic approach to records management. This is key to advising management of the resources required for them to adequately fulfil their legislative obligations.

    * Significant amounts of government business are outsourced to external parties, but government agencies are not ensuring contractors are aware of and comply with the agency’s recordkeeping requirements. As a result, agency records may not be captured and adequately maintained.

  2. Dave, You are dead right of course and this is a problem not only right across this country, but around the world. The millions spent on new technology isn't having a payoff for those interested in transparency and accountability in government.
    When will they ever learn. Peter.