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Thursday, November 20, 2008

Tough school on the cost front for those who pursue FOI rights.

Almost two years ago, this post highlighted the unsatisfactory situation that someone who wins a favourable judgment in the NSW Administrative Decisions Tribunal (in that case a privacy issue), which a government agency then successfully challenges in the courts on a question of law, will end up with a bill for the agency's costs where the court exercises discretion to apply the normal rules that costs go to the successful party.It seems rough justice as the person concerned was involved in the court proceedings through no fault or action on their part.

It's probably an issue in other jurisdictions as well.In NSW you can seek a certificate under the Suitors Fund in appropriate cases but even when granted, at the end of the day, payments are a matter of discretion for the Director General of the Attorney General's Department.

The NSW Court of Appeal has just told Michael McGuirk, who has featured in many freedom of information cases, that it won't give leave to appeal a Supreme Court decision in favour of the Independent Commission Against Corruption, which overturned a Tribunal Appeal Panel decision in his favour and awarded costs in the Supreme Court proceedings against him. McGuirk submitted that he should be able to argue against the cost order before the Court of Appeal because " a costs order such as that made against him would have a major dampening effect on persons who sought to exercise their claimed entitlement to gain access to information pursuant to the provisions of the FOI Act, an entitlement which he correctly said was given importance in the scheme of the legislation."

He's right about the potential dampening effect on anyone who knows about what could happen if the matter ends up in the courts at the agency's initiative.It can be a tough and expensive game when you take on a government agency and end up in courts.

However the Court rejected the submission. Justice Giles made a rather weak distinction between this case and the pursuit of FOI rights, and other cases where cost orders were not imposed because of more compelling public interests.In commenting about the Court decision to award costs, he said [14]:
"Her Honour was exercising a discretion. For the purposes of the leave application it is necessary to consider whether it can be said, and with what degree of force, that her Honour’s decision was so unreasonable that it fell outside a proper exercise of the discretion. I do not think that it can be said with particular force. Appeals against discretionary decisions, particularly on matters of costs, are difficult. In my judgment the prospects of success in an appeal against the costs order made by her Honour are very slight. In those circumstances, in my opinion the proper exercise of our discretion is to decline to grant leave to appeal in that respect also."
McGuirk also was stuck with ICAC costs for the unsuccessful Court of Appeal application.

The substantive issue at the heart of the matter was the Supreme Court finding that the Tribunal had no merits review powers where an agency rejects an application for documents concerning functions listed in Schedule 2 of the Act.

Blanket exemptions for ICAC and others that are not subject to review put a large hole in the transparency and accountability framework of the legislation. The need for them should be seriously questioned

1 comment:

  1. Anonymous11:49 am

    The McGuirk costs decision is appalling.

    What point is their in having legislation that purports to provide the general public with a means of accessing appropriate levels of accountability and transparency of govt action if when one is brave (or foolhardy enough!) to wish to pursue such a reasonable path the outcome one faces very likely is costs for one's desire to see such scrutiny. The legislation is a sham.

    Of concern to me is the fact that having FOI legislation such as it is creates false impressions that systems are accountable when they are clearly not so.

    I am also concerned by the fact that certain members of NSW ADT judiciary appear to have rather limited, dare I perhaps say obtuse, interpretation of what is indeed public interest when considering their decisions. It would seem that the only public interest of "value" in the case of NSW ADT decision GJ v NSW DET, just handed down, is confidentiality. An individual injustice which may have occurred is effectively spared any scrutiny because documents are deemed legitimately exempt (no matter how extensive the implications are regarding possible systemic failures or indeed improper processes) because in the view of the judicial member confidentiality outweighs every other public interest. So much for "balancing" of competing interests.

    Clearly confidentiality is genuinely a serious public interest issue in matters to do with personal affairs, and sometimes beyond, however if it automatically "outguns" any other perceived public interest in every instance what point is their in pretending otherwise. Might we be better off with no FOI legislation? At least then no pretense.