Cianfrano v NSW Ombudsman
[2007] NSWADT 235
•5 October 2007
CITATION: Cianfrano v NSW Ombudsman [2007] NSWADT 235 DIVISION: General Division PARTIES: APPLICANT
Robert Cianfrano
RESPONDENT
NSW OmbudsmanFILE NUMBER: 073001 HEARING DATES: 30 May 2007 SUBMISSIONS CLOSED: 8 June 2007
DATE OF DECISION:
5 October 2007BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - business affairs - access to documents - internal working documents - access to documents - personal affairs - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989 CASES CITED: Cianfrano v Director General, Premier's Department [2007] NSWADT 216
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Law Society of NSW v General Manager, WorkCover Authority of NSW (No 2) [2005] NSWADTAP 33
McKinnon v Secretary, Department of Treasury [2006] HCA 45
New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
Watt v Forests NSW [2007] NSWADT 197REPRESENTATION: APPLICANT
RESPONDENT
In person
M Adofaci, SolicitorORDERS: THe determination under review is affirmed
Background
1 The Applicant applied to the NSW Ombudsman's Office (“the Ombudsman”) for access to documents under the Freedom of Information Act 1989 (“the FOI Act”). He sought:
- All documents and or material as to the subject of Dealing with difficult complainants and Applicants. The documentation goes to any recommendations, made etc by the Ombudsman’s Office. The documents are also to include all referrals to the Ombudsman's Office or any other agency etc, and or department, etc and or Minister of the Crown. etc and or Director General, etc and any other personnel and or agents/consultants etc.
The internal working administrative documents shall include all documents and or material to and from any Minister of the Crown and or Director General etc, and other agency and or department etc including any other personnel.
The internal working administrative documents and or material shall include all documents and or reports to any Minister of the Crown and or Director General etc, other agency and or department, etc including any other personnel etc.
The internal working administrative documents specifically shall include all to and from the Deputy Ombudsman Mr Chris Wheeler in relation to his speech commissioned and given on the 20 September 2006.
Background
The documents sought are the working administrative documents in possession of the Ombudsman’s Office as to the issue of Dealing with difficult complainants and Applicants. The documents specifically go to any recommendations made etc, by any personnel and or officers of the Ombudsman's Office. The documents are also to include any referrals made to the Ombudsman’s Office by any agency and or department etc, and or Minister of the Crown etc, and or Director General etc, and any other government personnel etc and or agents etc.
The documents exclusively go to Dealing with difficult complainants and Applicants. This goes specifically to complaints, reports etc, and or investigations etc, and or recommendations etc, made by the Ombudsman’s Office. The documentation that I am seeking access particularly to administrative documents of the Office of the Ombudsman.
2 The Ombudsman’s delegate estimated that the office held approximately 500 documents relevant to the application. It consulted with the Applicant and it was agreed that the agency would identify the broad categories of documents held and that the parties would discuss the possibility of narrowing the scope of the application.
3 The Ombudsman’s delegate provided the following general information about the project to which the application relates:
- The NSW Ombudsman's office, in conjunction with all other State, Territory and Commonwealth Parliamentary Ombudsman offices in Australia is piloting a project about the management of so called "difficult complainants" and unreasonable complainant conduct.
This project arose out of a smaller project within this office that was looking at ways we could improve our interactions with complainants. The Ombudsman spoke about the work we were doing in this area at the Australian and Pacific Ombudsman Regional Conference in April 2006. Subsequently, all the Ombudsman offices agreed to collaborate on the project. We anticipate the project will run until mid 2008 and produce a management strategies framework for dealing with unreasonable complainant conduct and a range of recommendations relevant to the topic. The project is still in its early stages and has not yet produced any recommendations or publications. There is some more information about the project on our website, which you can access at
I am also able to confirm that Mr Chris Wheeler's speech at the Crown Solicitor's Office Seminar Series on 20 September 2006 about this topic was not commissioned by anyone. We had an opportunity to" give a presentation at the seminar, Mr Wheeler chose the topic and informed the Crown Solicitor's Office what he wished to speak about. .
4 The delegate identified the following categories of documents as subject to the FOI application:
- 1) Supporting documents to Mr Wheeler's presentation at the Crown Solicitor's Office Seminar Series on 20 September 2006
2) Discussion papers and calls for feedback on discussion papers
3) Project budget
4) Drafts of the framework manual
5) Feedback on the framework manual
6) Drafts of the research proposal and project scoping
7) Feedback on the research proposal and project scoping
8) Scripts, standard letters and terminology
9) Training material
10) Seminars and workshops
11) Internal research material
12) Complaint handlers’ survey
13) Meetings and discussion notes
5 The Applicant subsequently indicated that his request was limited to the previous twelve years and sought all documents that fell within the thirteen identified categories.
6 In her determination the Ombudsman’s delegate stated:
- I have identified 36 documents as falling within the scope of your application. I will deal with the documents under the sub-headings of your request for ease of reference.
This is my determination of your FOI application. .It is made today, being 14 November 2006.
1) Recommendations by this office in relation to the subject
There have been no recommendations made by this office in relation to the subject and no documents are held by this office in relation to this category.
2) and 3) Referrals and documents to and from Minister, Director General, agencies, any other personnel, agents and consultants in relation to the subject
There are no referrals or documents to and from any Ministers of the Crown and Director- Generals about the subject.
I have identified the following documents as falling within the rest of categories 2 and 3:
1. Email from Chris Wheeler to the South Australian Ombudsman about FOI complainants dated 4 October 2006
2. Email from Chris Wheeler to Justice Tasmania about FOI complainants dated 4 October 2006
3. Email from Chris Wheeler to the Queensland Ombudsman about FOI complaints dated 4 October 2006
4. Email from Northern Territory Ombudsman about FOI complainants 4 October 2006
5. Email from Chris Wheeler to Western Australia about FOI complainants dated 4 October 2006
6. Email from Chris Wheeler to Victorian Ombudsman about discussion paper on FOI complainants 4 October 2006.
7. Email from Western Australia with feedback on FOI discussion paper dated 3 October 2006
8. Email from Northern Territory Ombudsman with feedback on FOI complainants discussion paper dated 2 October 2006
9. Chris Wheeler email to Information Commissioner in the UK about FOI applicant dated 21 September 2GO6
10. Email from Chris Wheeler to the Judicial Commission about vexatious complainants 27 September 2006
11. Email from Chris Wheeler to Victorian Ombudsman about FOI applicants discussion paper dated 27 September 2006
12. Email from Justice Tasmania re FOI Act 26 September 2006
13. Email from Chris Wheeler to Western Australia re difficult FOI applicants dated 26 September 2006
14. Email from Chris Wheeler to the Information Commissioner Northern Territory re difficult FOI applicants dated 26 September 2006
15. Email from Chris Wheeler to the Queensland Information Commissioner re difficult applicants dated 26 September 2006
16. Email to Justice Tasmania about FOI applicants dated 26 September 2006
17. Email from Chris Wheeler to South Australian Ombudsman about FOI applicants dated 26 September 2006
18. Email from Chris Wheeler to various people asking for feedback on CSO paper dated 21 September 2006
19. CSO Seminar Series presentation 20 September 2006
20. CSO Seminar Series presentation slides
21. Email from Chris Wheeler to Dr Grant Lester about difficult FOI applicants dated 15 September 2006
22. Email from Victorian Ombudsman about the FOI discussion paper dated 30 August 2006
23. Email from Helen Mueller to difficult complainant project participants calling for a discussion paper on FOI and Privacy complainants dated 23 August 2006
24. Email from Chris Wheeler to Northern Territory Ombudsman dated 4 October 2006.
I have determined to release documents number 18, 19 and 20.
I have determined the remaining documents listed above are exempt pursuant to clause 9 of Schedule 1 to the FOI Act. …
4) All reports to Minister, Director-General, other agency and department, including any other personnel relating to the subject
There have been no reports made by this office in relation to the subject and no documents are held by this office in relation to the above category of documents.
5) and 6) All documents to the Deputy Ombudsman, Mr Chris Wheeler, in relation to his speech commissioned and given at the Crown Solicitor’s seminar series on 20 September 2006 relating to the subject and all documents from the Deputy Ombudsman, Mr Chris Wheeler, in relation to his speech on 20 September 2006
I have identified the following documents as falling within this category:
25. Emails between John McDonnell and Chris Wheeler about upcoming CSO seminar 15 September 2005
26. Emails between John McDonnell and Chris Wheeler about upcoming CSO seminar 18 September 2005
27. Email from Chris Wheeler to John McDonnell attaching speech and presentation 15 September 2006
I have determined to release documents 25, 26 and 27.
You have also requested that the documents should include the following:
i) internal research material
I have identified the following documents as falling within this request.
28. Multiple FOI Applications/Review Applications
29. Table of McGuirk Administrative Decisions Tribunal cases.
30. Table of Cianfrano Administrative Decisions Tribunal cases.
31. Administrative Decisions Tribunal FOI Decisions
32. Multiple Privacy Applications/Review Applications
33. Table of GA Administrative Decisions Tribunal cases.
34. Table of NZ Administrative Decisions Tribunal cases
35. Administrative Decisions Tribunal Privacy Decisions
I have determined that documents 28 and 32 are exempt documents pursuant to clause 9 of Schedule 1 to the FOI Act. These two documents are internal working documents that reveal the opinions and thinking of the project participants during the course of preparing the discussion paper on difficult FOI complainants and applicants. The reasons for my determination are the same as those discussed under points 2) and 3). While the project is still ongoing, the project participants are entitled to a degree of confidentiality in their deliberations about the topic of FO1 complainants and applicants.
I have determined to release documents 29, 30, 31, 33, 34 and 35.
ii) supporting documents to Mr Wheeler's presentation at the Crown Solicitor's Office Seminar Series on 20 September 2006
36. Email from Chris Wheeler to Judge Kevin O'Connor about seminar presentation dated 15 September 2006
I have determined to partially release document 36 subject to deletions pursuant to section 25(4) of the FOI Act.
The material deleted from document 36 relates to the personal affairs of people other than you and would in my opinion constitute an unreasonable disclosure of those affairs. This material is exempt pursuant to clause 6 (1) of Schedule 1 to the FOI Act which states that a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
iii) discussion papers and calls for feedback on discussion papers.
These documents are referred to above under points 2) and 3).
iv) project budget
v) drafts of the framework manual
vi) feedback on the framework manual
vii) drafts of the research proposal and project scoping
viii) feedback on the research proposal and project scoping
ix) scripts standard letters and terminology
x) training material
xi) seminar and workshops
xii) complaint handler's survey
xiii) meetings and discussion notes
There are no documents held by this office in the above categories iv) to xiii) that relate to the subject of dealing with difficult FOI complainants and FOI applicants.
7 The applicant lodged an application for an internal review of the determination. The original determination was affirmed with additional exemptions claimed in relation to some of the documents. The applicant applied to this Tribunal for external review of the determination.
The Legislation
8 Under section 16 of the FOI Act a person has a right to apply for access to an agency’s documents in accordance with the Act. The agency must determine whether or not the person will be granted the access sought. It may do so only on grounds specified in the FOI Act. The objects of the FOI Act make it clear that as far as possible the public should have the right to obtain access to government records.
9 Section 61 of the FOI Act places the onus of proving that a determination to refuse access to documents is justified on the agency that makes that determination. One ground on which the agency may refuse access to a document is that the document is exempt pursuant to section 25 of the FOI Act. An exempt document is defined by section 6 to include a document referred to in Schedule 1 of the FOI Act. The agency has a discretion to exercise under section 25. It “may” provide access to the document. It is not bound to refuse access if a document is exempt.
10 Clause 6 of Schedule 1 of the FOI Act provides:
- 6 Documents affecting personal affairs
(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).
(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.
11 Clause 7 of Schedule 1 of the FOI Act provides:
- 7 Documents affecting business affairs
(1) A document is an exempt document:
(a) if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person, or
(a1) if it contains matter the disclosure of which would disclose the commercial-in-confidence provisions of a government contract (within the meaning of section 15A), or
(b) if it contains matter the disclosure of which:
- (i) would disclose information (other than trade secrets or commercial-in-confidence provisions) that has a commercial value to any agency or any other person, and
(ii) could reasonably be expected to destroy or diminish the commercial value of the information, or
- (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and
(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.
12 Clause 8 of Schedule 1 of the FOI Act provides:
- 8 Documents affecting the conduct of research
(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose the purpose or results of research (including research that is yet to be commenced or yet to be completed), and
(b) could reasonably be expected to have an unreasonable adverse effect on the agency or other person by or on whose behalf the research is being, or is intended to be, carried out.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning research that is being, or is intended to be, carried out by the agency or other person by or on whose behalf an application for access to the document is being made.
13 Clause 9 of Schedule 1 of the FOI Act provides:
- 9 Internal working documents
(1) A document is an exempt document if it contains matter the disclosure of which:
(a) would disclose:
- (i) any opinion, advice or recommendation that has been obtained, prepared or recorded, or
(ii) any consultation or deliberation that has taken place,
(b) would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of:
(a) matter that appears in an agency’s policy document, or
(b) factual or statistical material.
14 The Ombudsman relies on statements by Ms Adofaci. She annexed a schedule of the withheld documents and set out the Ombudsman’s position as follows:
- 10. The documents listed in Annexure F are documents created by the NSW Ombudsman and those agencies participating in the Unreasonable Complainant Conduct Project. The project, led by the NSW Ombudsman, involves consultation with agencies within NSW and around Australia to examine current issues and strategies for dealing with unreasonable complainants and the development of a practice manual and training package to assist agencies in improving their capacity to manage unreasonable complainants and the impact such complainants have on agency operations.
11. In relation to documents 1-17, 21-24 and 28 and 32 the NSW Ombudsman claims that the documents are exempt documents under clause 7 of Schedule 1 as being documents affecting the business affairs of the NSW Ombudsman.
12. The information contained in documents 1-17, 21-24 and 28 and 32 has a commercial value to the NSW Ombudsman and the release of the documents could reasonably be expected to diminish the commercial value of the information.
13. The premature disclosure of the information through the release of exempt documents to the applicant would expose the NSW Ombudsman to a commercial disadvantage. Since the inception of the research project and particularly arising out of the training provided to agencies by the NSW Ombudsman it has become apparent that the training packages and the expertise of NSW Ombudsman staff in providing the training and developing a manual has commercial value and agencies have expressed to the NSW Ombudsman a preparedness to pay for the training and assistance offered by the NSW Ombudsman.
14. The compilation of the information and the preparation of the training packages has involved the expense of considerable time and money on the part of the NSW Ombudsman and participating agencies. The NSW Ombudsman has significant experience in the conduct of and development of training packages for agencies within NSW and around Australia and the NSW Ombudsman has previously sold its training materials and expertise. In relation to the unreasonable complainant project the NSW Ombudsman has received expressions of interest in the training packages and materials from agencies around Australia and the NSW Ombudsman is currently conducting the pilot programme for the training materials around Australia and agencies are paying for their staff to attend the training.
15. The NSW Ombudsman has also determined that the documents referred to in annexure F at numbers 1-17 inclusive, 21-24 inclusive, 28 and 32 were documents affecting the conduct of research and were therefore exempt documents pursuant to clause 6 of Schedule 1 of the Freedom of Information.
16. The exempt documents referred to in Annexure F at numbers 1-17 inclusive, 21-24 inclusive, 28 and 32 are internal working documents prepared in the course of a research project that is being facilitated by the NSW Ombudsman in conjunction with national Ombudsman agencies. The research project relates to the conduct of agencies in the handling of complaints by unreasonable complainants.
17. The research project commenced in 2006. A current timeline for the project is annexed hereto and marked Annexure G; the research project is currently expected to be completed in September 2008.
18. The purpose of the exemption in clause 8 is to ensure that an application for access to documents under the FOI legislation does not provide a means for poaching or plagiarising sensitive and confidential research proposals. The subject matter of the research project is sensitive and involves the analysis and identification of individuals perceived by agencies to be acting unreasonably and the operational issues that arise for agencies in dealing with difficult complainants.
19. Disclosure of the information contained in the exempt documents at this stage of the research project could have an unreasonably adverse effect on the conduct of the research project by the NSW Ombudsman. The nature of the adverse effect is that the release of the information contained in the exempt documents would disclose not only the purpose, methodology and preliminary results of the research but also undermine the integrity of the research project as the information contained in the exempt documents is raw data requested and provided without analysis and interpretation within the context of the project.
20. Disclosure of the information and data contained in the exempt documents could also lead to speculation as to the effect and interpretation of the data and impact upon the process to be undertaken by the NSW Ombudsman in consultation with participating agencies in the analysis of the information and the development of strategies. We would also be concerned that the release of the research information could facilitate the poaching of our research proposal and the preliminary data we have collated and allow others to appropriate our efforts.
21. In relation to documents 1-17 inclusive as referred to in Annexure F to this affidavit the NSW Ombudsman determined that those documents were internal working documents and were therefore exempt documents pursuant to clause 9 of Schedule 1 of the Freedom of Information Act.
22. In relation to documents 21- 24 inclusive as referred to in Annexure F to this affidavit the NSW Ombudsman determined that those documents were internal working documents and were therefore exempt documents pursuant to clause 9 of Schedule 1 of the Freedom of Information Act.
23. In relation to documents 28 and 32 as referred to in Annexure F to this affidavit the NSW Ombudsman determined that those documents were internal working documents and were therefore exempt documents pursuant to clause 9 of Schedule 1 of the Freedom of Information Act.
24. Clause 9 of Schedule 1 protects from release under FOI legislation documents concerning the decision making and policy making functions of an agency if their disclosure would be contrary to the public interest and recognises that government agencies require some degree of confidentiality in order to function smoothly and efficiently.
25. The release of the exempt documents would disclose opinions, advice and recommendations made by the NSW Ombudsman and the heads of those agencies participating in the unreasonable complainant conduct project and obtained, prepared and recorded in the course of their participation in the project.
26. Developing systems, processes and agency competence in complaint handling is a core function of the NSW Ombudsman. Whilst there is an acknowledged public interest in ensuring transparency and accountability in government there are also significant arguments for non-disclosure of the exempt documents in this matter. The project on unreasonable complainant conduct is in its preliminary stages and no findings, conclusions or recommendations have been made. The exempt documents were created for the purpose of consultation and to assist in the preparation of a discussion paper and a training manual. They contain preliminary advice, opinions and proposals the release of which could impede the progress and finalisation of the project. .
27. Given that the research project is not complete … and the documents contain preliminary advice, opinion and information there is a need to protect the integrity and viability of the decision making processes of government. Furthermore it is not in the public interest to release the information at this stage of the research project as it would significantly affect the efficient and economical conduct of the NSW Ombudsman project.
28. In relation to document 36 an exemption is claimed over the deleted part of the document on the ground of personal affairs pursuant to clause 6 of Schedule 1. The object of clause 6 is to protect the private information of third parties who may be referred to in agency documents but who may be unaware that their private affairs stand subject to exposure by a claim for access made under the FOI Act. The information the subject of the exemption is information from which a person could be identified and it is the view of the NSW Ombudsman that its disclosure would be unreasonable in the circumstances of this matter.
15 Ms Adofaci also provided a confidential affidavit in which she set out the financial details relating to the Unreasonable Complainant Conduct Project.
The Applicant’s case
16 The applicant points to policy documents relating to the Ombudsman's charter. He says that the Ombudsman is a publicly funded Office without a commercial nature. He concedes that it has a number of functions but argues that the project that involves identifying those individuals who have been identified by Director General's of undisclosed agencies as behaving in an unreasonable manner and creating a table of their various cases at the Tribunal is outside the scope of the Ombudsman's charter. He submits that the Ombudsman is not in the business of creating training packages or of selling those packages on a commercial basis.
17 He says that in any event the ‘unreasonable characters’ would all know who they are and as all Tribunal decisions and cases are available on the Tribunal’s website there is nothing sensitive or confidential about their details.
Findings
Documents 1-17, 21- 24, 28 and 32
18 For a document to be exempt under clause 7(1)(b) it must contain information that has a commercial value to any agency or any other person, and its release could reasonably be expected to destroy or diminish the commercial value of the information. I considered the law in relation to this exemption in my reasons for decision in Watt v Forests NSW [2007] NSWADT 197. It serves no purpose to repeat it here.
19 The first arm of this clause requires a positive finding that the relevant information has a commercial value. Only after that finding is made is it necessary to consider whether disclosure could reasonably be expected to destroy or diminish the commercial value of the information.
20 I have considered all the material presented on behalf of the parties. I am satisfied that the Ombudsman has accurately described the documents that the applicant seeks however I am not satisfied on the evidence before me that the information contained in documents 1-17, 21-24 and 28 and 32 has a commercial value to the Ombudsman. While I accept that the confidential evidence filed on behalf of the Ombudsman establishes the commercial value of the project, I have no basis on which I could conclude that the correspondence contained within these documents falls into that category. It follows, in my view, that these documents are not exempt documents pursuant to Clause 7 of Schedule 1 of the FOI Act.
21 It is therefore necessary that I consider the arguments presented by the Ombudsman in support of its contention that these documents are internal working documents for the purposes of clause 9(1) of Schedule 1 of the FOI Act. The purpose of the exemption is to protect documents concerning the decision-making and policy-making functions of an agency. The provision is designed to protect the pre-decisional processes but only if, on balance, it is contrary to the public interest to release the information. It is not designed to protect pre-decisional processes regarding purely administrative decisions, or the basis for those decisions.
22 For an agency to claim that documents are exempt under clause 9, all provisions of the clause must be met. The first arm of this clause requires a positive finding that the relevant information comprises an opinion, advice or recommendation that has been obtained, prepared or recorded, or a consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making function. I have considered each of these documents and I am satisfied that they satisfy this arm of clause 9.
23 It is therefore necessary that I consider whether the public interest in non-disclosure outweighs the public interest in disclosure. As I have indicated above, I am satisfied that the project has a commercial nature. The evidence also shows that the project is ongoing. The fact that the decision-making process is still on foot is a public interest factor against disclosure: Law Society of NSW v General Manager, WorkCover Authority of NSW (No 2) [2005] NSWADTAP 33 affirmed in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84. The desirability of preserving confidentiality of intra-governmental communications prior to making a decision may also be a facet of the public interest: McKinnon v Secretary, Department of Treasury [2006] HCA 45.
24 In my view it would be contrary to the public interest to release these documents at the moment. These documents were prepared in the course of a project that is incomplete. For the reasons argued, I accept that it is contrary to the public interest to release these documents. I note, however, that the public interest against disclosure of these documents may well fall away once the project has been completed.
Documents 36
25 The Ombudsman asserts that material that has been deleted from document 36 is exempt on the ground that it contains information concerning the personal affairs of any person pursuant to clause 6 of Schedule 1. I have examined this document and I am satisfied that the excluded material is information from which a person could be identified. I also accept that its disclosure would be unreasonable in the circumstances of this matter. In the circumstances of this matter I am satisfied that this is information concerning the personal affairs of a person and is therefore exempt pursuant to clause 6 of Schedule 1.
The override discretion
26 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 the Supreme Court confirmed that the Tribunal has discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it. The Tribunal’s President summarised the current thinking in regard to the exercise of this discretion in his recent decision in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. He specifically considered whether exempt matter should be released and observed that the Tribunal has a broad, unfettered discretion to release exempt documents, matching that of the agency. The President reviewed a number of authorities that have considered the issue and stated at paragraph [24]:
- 24 At this early point in the exercise of this power, the following principles to guide the exercise of the discretion have emerged:
(1) The Tribunal must first ascertain whether the matter is exempt matter.
(2) The Tribunal should only exercise the power to decline to refuse disclosing exempt matter where there are strong grounds justifying the overriding of the exemption.
(3) The question of whether there are strong grounds should take account of the objects of the FOI Act as expressed in s 5.
(4) Even in the case of matter that falls within one of the ‘restricted documents’ categories of exemption (see cll 1 (Cabinet documents), 2 (Executive Council documents) and 4 (Documents affecting Law Enforcement and Public Safety) of Schedule 1) the only absolute exemption arises where the Minister has granted a certificate pursuant to s 59.
(5) In the case of restricted documents, particular account should be taken of the concern addressed by s 5(2)(b), i.e. whether or not a restriction of access is ‘reasonably necessary for the proper administration of government’.
27 I have considered the arguments presented by the parties on the issues applicable in the exercise of this discretion. I do not consider that the applicant has raised considerations sufficient as to warrant the general release of the exempt documents under section 25 of the FOI Act.
28 It follows that the determination to refuse to release documents 1-17, 21-24 and 28 and 32 to the applicant and to withhold some material from document 36 is the correct and preferable decision on the evidence before me. Accordingly, that determination should be affirmed.
DECISION
- The determination under review is affirmed.
0
6
1