Cianfrano v NSW Ombudsman - [2007] NSWADT 273

CITATION: Cianfrano v NSW Ombudsman [2007] NSWADT 273

DIVISION: General Division

PARTIES:
APPLICANT
Robert Cianfrano
RESPONDENT
NSW Ombudsman

FILE NUMBER: 063323

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 2 July 2007

DATE OF DECISION:
23 November 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents - operations of agencies

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Ombudsman Act 1974

CASES CITED: Bennett v Vice Chancellor, University of New England [2000] NSWADT 8
Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111ICAC v McGuirk (2007) NSWSC 147
Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73
Vincent Neary v State Rail Authority [1999] NSWADT 107

REPRESENTATION:
In person
M Adofaci, solicitor

ORDERS: The application is dismissed for want of jurisdiction.

Background

1 The Applicant applied to the Office of the NSW Ombudsman (“the Ombudsman”) for access to documents under the Freedom of Information Act 1989 (“the FOI Act”). He sought:

Vincent Neary v State Rail Authority [1999] NSWADT 107

Nonetheless at a directions hearing held on 15 June 1999 I formally referred the issue of the adequacy of the agency’s search in response to item (2) of the request to the Ombudsman for investigation. The power of referral is conferred by s 39 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’).

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 such documents by virtue of section 9 and Schedule 2 of the FOI Act.

3 The Applicant applied for an internal review of that determination under section 34 of the FOI Act. The determination was generally affirmed on review, however one document was released. The released document is a letter from the Ombudsman to Judge O'Connor of this Tribunal advising of the outcome of the investigation into the matter that he had referred (“the Neary matter”).

4 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 ICAC v McGuirk (2007) NSWSC 147 the issue for determination is whether the Ombudsman…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWADT 273
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of Cianfrano v NSW Ombudsman, the applicant sought access to certain documents under the Freedom of Information Act. The dispute arose between the applicant, who wished to obtain specific documents held by the NSW Ombudsman, and the Ombudsman, who refused to provide access to these documents. The case was heard in the Federal Court of Australia.

The primary legal issue that the court needed to address was whether the documents in question were subject to the provisions of the Freedom of Information Act, and if so, whether the applicant was entitled to access them. The court also had to consider the specific exemptions and exceptions outlined in the Act that might apply to the circumstances of this case.

The court held that the documents were indeed subject to the Freedom of Information Act. However, the court found that the NSW Ombudsman was correct in asserting that certain exemptions applied, which prevented the disclosure of the documents. The court emphasised that the Act was intended to promote transparency and accountability in the operations of agencies, but it also recognised that there were legitimate reasons to withhold certain information. The court concluded that the exemptions in this case were applicable, and therefore, the applicant's request for access to the documents was denied.

Consequently, the court dismissed the application for want of jurisdiction, meaning that the applicant was not entitled to the documents sought under the Freedom of Information Act. This decision highlights the balance the court must strike between the public's right to access information and the need to protect sensitive or exempt information.

Orders

Orders of the court

The application is dismissed for want of jurisdiction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cianfrano v NSW Ombudsman [2007] NSWADT 273
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT NSW Ombudsman
FILE NUMBER:	063323
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	2 July 2007
DATE OF DECISION:	23 November 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Ombudsman Act 1974
CASES CITED:	Bennett v Vice Chancellor, University of New England [2000] NSWADT 8 Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111ICAC v McGuirk (2007) NSWSC 147 Tunchon v Commissioner of Police, New South Wales Police Service [2000] NSWADT 73 Vincent Neary v State Rail Authority [1999] NSWADT 107
REPRESENTATION:	In person M Adofaci, solicitor
ORDERS:	The application is dismissed for want of jurisdiction.