Challita v NSW Ombudsman

CITATION:	Challita v NSW Ombudsman [2008] NSWADT 238
DIVISION:	General Division
PARTIES:	APPLICANTS Jolanda Challita and Peter Challita RESPONDENT NSW Ombudsman
FILE NUMBER:	083065
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 June 2008
DATE OF DECISION:	25 August 2008
BEFORE:	Montgomery S - Judicial Member
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Ombudsman Act 1974
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Cianfrano v NSW Ombudsman [2007] NSWADT 273 DF v Director General Attorney General's Department [2002] NSWADT 164 Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 McGuirk v NSW Ombudsman (N03) [2007] NSWADT 269 Raethel v Direct General Department of Education and Training [1999] NSWADT 108
REPRESENTATION:	APPLICANT In person RESPONDENT M Borthwick, agent
ORDERS:	The application is dismissed for want of jurisdiction.

REASONS FOR DECISION

1 In January 2008 the Applicants applied to the NSW Ombudsman (“the Ombudsman”) under the Freedom of Information Act 1989 (“the FOI Act”) for certain documents relating to their complaints to the Ombudsman. The requested:

“All documents, notes, files, memoranda, email communications, written communications, briefings, submissions etc., in relation to the complaints lodged on behalf of Danny, Katie and Amanda Challita by Jolanda & Peter Challita from December 2002 to date together will (sic) all documents and information regarding the subsequent reviews, determinations and/or appeals.”
2 The Ombudsman identified a number of documents (“the documents”) as falling within the scope of the request but access to the documents was refused on the basis that they were documents relating to the exercise of the investigative, complaint handling and reporting functions (“exempt functions”) of the Ombudsman. It was asserted that the Ombudsman is exempt from the operation of the FOI Act in relation to the documents by virtue of section 9 and schedule 2 of the FOI Act. That decision was affirmed on internal review and the Applicants lodged an application for external review of the decision with the Tribunal.

3 The Applicant applied to this Tribunal for external review of the Ombudsman’s decision. The parties agreed to have the matter dealt with by the Tribunal on the papers. It was further agreed between the parties that in light of the decision of Simpson J in Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 (“ICAC v McGuirk”) the issue for determination is whether the Ombudsman has properly categorised the documents as documents relating to the exempt functions set out in schedule 2 of the FOI Act.

Applicable legislation

4 Section 24(1)(a) of the FOI Act provides for the determination of applications. Section 53(1) provides that a person who is aggrieved by a determination made under section 24 or 43 may apply to the Tribunal for a review of the determination. Section 53(3)(a)(i) provides that a person is aggrieved by a determination if the determination is to the effect that access to a document is refused.

5 Section 9 of the FOI Act…