Dawson v Ministry of Transport

[2007] NSWADT 2

CITATION:	Dawson v Ministry of Transport [2007] NSWADT 2
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Charles Dawson RESPONDENT Ministry of Transport
FILE NUMBER:	063230, 063308
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 December 2006
DATE OF DECISION:	9 January 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989
REPRESENTATION:	APPLICANT In person RESPONDENT T Unsworth, Solicitor
ORDERS:	The applications are to be set down for a further planning meeting in respect of the outstanding matters on Thursday, 8 February 2007 at 10a.m.

REASONS FOR DECISION

1 Mr Dawson applied pursuant the Freedom of Information Act 1989 (“the FOI Act”) to the Ministry of Transport for access to certain documents. He sought:

All documents which:
Are a report or advice to Government by an external consultant;

Advise on planning Lower Hunter public transport infrastructure or services (including any related information of a descriptive character eg patronage surveys); and

Were commissioned in relation to the project which the Minister for Transport in March 2005 described as an "Integrated Transport Plan".

2 The Ministry identified a number of documents that fell within the scope of Mr Dawson’s application and determined to refuse access to these documents. Mr Dawson sought an internal review of the Ministry’s decision however the Ministry declined to undertake the internal review on the basis that his application was out of time. Mr Dawson contends that that assertion is wrong. However, he made a second application in identical terms.

3 The Ministry determined the second application in May 2006. It identified documents as falling within the scope of Mr Dawson’s second application as:

“1. 125 page document entitled "Public Transport in the Lower Hunter" prepared by McCormick Rankin Cagney (MRC) dated September 2005

2. .20 page Consultancy Agreement between the Ministry of Transport (MoT) and MRC;

.1 page Letter from Mr Guy Thurston (MRC) to Mr Lyall Kennedy (MoT) dated 12 March 2005;

.4 page Response from Kennedy to Thurston dated 22 March 2003.”

4 The Ministry asserted that the documents held are exempt from disclosure pursuant to Clause 1 of Schedule 1 of the FOI Act and determined to refuse Mr Dawson access to these documents.

5 Mr Dawson sought an internal review of the Ministry’s decision and was subsequently provided with three documents, which are no longer at issue, and an untitled 10-page advice, by MRC, dated 25 May 2005, concerning bus priority measures in Hunter St Newcastle (“the MRC advice”). The Ministry asserted that the MRC advice had been wrongly described in its earlier correspondence with Mr Dawson as having 125 pages and dated September 2005.

6 Mr Dawson has sought a review of the Ministry’s determinations. He has challenged the adequacy of the search undertaken by the Ministry and he also contends that it is not believable that the MRC advice, comprising 10 pages and dated May 2005, could be accidentally misdescribed as a 125-page document entitled "Public Transport in the Lower Hunter" that was dated September 2005. He contends that the decision maker must have had a different document in mind when making the decision and he seeks that document.

7 These matters came before me for hearing on 16 October 2006. Following the hearing I remitted the matter for reconsideration by the Ministry. The matter was subsequently listed for a planning meeting on 22 November 2006.

8 At the planning meeting it was agreed that the Ministry would provide the document to the Tribunal by 6 December 2006 and that I will decide on the papers whether the document is within the scope of Mr Dawson’s FOI request.

9 The Ministry has provided a copy of the document in question to the Tribunal. I have examined the document to ascertain whether I agree with the Ministry’s assertion that it does not fall within the scope of Mr Dawson’s request.

10 In my view there is no doubt that the document generally falls outside the scope of Mr Dawson’s request because it is not the work of an external consultant. However, an annexure to the document falls within scope. That annexure is the MRC advice that has already been provided to Mr Dawson.

11 I note that Mr Dawson has foreshadowed that if I were to make the finding that I have in fact made, he will consider making a further FOI application to the Ministry to seek access to this document. He maintains that the issue of the adequacy of the search undertaken by the Ministry remains outstanding.

12 In the circumstances the appropriate approach is to list the present matters for a further planning meeting to determine their future conduct.

Orders

The applications are to be set down for a further planning meeting in respect of the outstanding matters on Thursday, 8 February 2007 at 10a.m.