Kerr v Roads and Traffic Authority

[2006] NSWADT 145

CITATION:	Kerr v Roads and Traffic Authority [2006] NSWADT 145
DIVISION:	General Division
PARTIES:	APPLICANT Joseph Kerr RESPONDENT Roads and Traffic Authority
FILE NUMBER:	053303
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/10/2006
DATE OF DECISION:	05/18/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - cabinet documents - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - cabinet documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Ombudsman Act 1974 Road Transport Legislation Amendment (Public Transport Lanes) Bill 2003
CASES CITED:	Commissioner of Police v District Court of New South Wales & Anor (1993) 31 NSWLR 606 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 Neary -v- Treasurer of New South Wales [2001] NSWADT 161
REPRESENTATION:	APPLICANT In person RESPONDENT K Plowman, solicitor
ORDERS:	1. That part of the agency's decision which relies on Clause 1 of Schedule 1 to the Freedom of Information Act 1989 (Cabinet documents) is affirmed; 2. The matter is otherwise remitted pursuant to section 65(1) of the Administrative Decisions Tribunal Act 1997 for reconsideration by the agency; 3. The agency is to advise Mr Kerr of its determination with respect to Order 2 within 21 days; 4. This matter is re-listed for a further planning meeting on Tuesday 4 July 2006 at 9:30 am.

1 Mr Kerr applied under the Freedom of Information Act 1989 (“the FOI Act”), seeking access to a number of documents held by the Roads and Traffic Authority (“RTA”). The application related to a trial of a bus lane camera system known as the 'Bus Lane Monitoring System' (“the BLMS project”) that the RTA conducted during 2001 and 2002. At that time Mr Kerr discussed the BLMS project in an article that he wrote for The Sydney Morning Herald. Mr Kerr’s application was in the following terms:

“Specifically, I seek access to reports or assessment of the trials of the Public Transport Information and Priority System and reports or assessment of the trials of bus lane cameras placed in Sydney CBD streets.”

2 Mr Kerr later advised the RTA that he no longer required access to any documents relating to the Public Transport Information and Priority System. The application was therefore limited to the BLMS project.

3 The RTA identified 74 folios as falling within the scope of Mr Kerr’s application. Access to all 74 folios was refused on the basis that they were developed for the purpose of submission to Cabinet and therefore they were exempt from production under Clause 1 of Schedule 1 of the FOI Act. An internal review confirmed the determination.

4 Following an investigation by the NSW Ombudsman the RTA applied for a certificate from the head of the Cabinet Office to confirm that the documents were developed for the purpose of submission to Cabinet. The Cabinet Office provided a certificate in relation to only some of the documents. Documents 21-71 were not certified as Cabinet documents and Mr Kerr was provided with a copy of those documents.

5 In the course of completing the evidence in this matter the RTA located an email from a contractor to the BLMS project. A copy of that email has been provided as an annexure to an affidavit of Craig John Moran filed in the proceedings.

6 Mr Kerr has sought review under section 57(1) of the FOI Act of the RTA’s determination to refuse him access to documents 1-20 and 72-74. He has also expressed concern that there are other documents held by the RTA that were not identified in the 74 documents said by the RTA to be within the scope of his application that should properly have been considered to be captured by the FOI request. His application to the Tribunal also seeks review of that aspect of the determination.

Applicable legislation

7 Section 16(1) of the FOI Act provides that “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act”. Section 17 prescribes the form of an application for access to agency documents. Section 24 (1) relevantly provides that after considering an application for access, an agency shall determine whether access is to be given (whether immediately or subject to deferral) or refused, and if access is to be given, any charge payable in respect of giving access. Section 25(1)(a) relevantly provides that an agency may refuse access to an exempt document. Section 28(1)(a) requires an agency to give written notice to the applicant of its determination of his or her application. Section 28(1)(e) provides that if the determination is that access is refused, the agency must specify its reasons, and the findings on any material questions of fact, with a reference to the sources of information on which those findings are based. Section 61 provides that in any proceedings concerning a determination made under the Act by an agency, the burden of establishing that the determination is justified lies on the agency.

8 The FOI Act enshrines a “general policy of disclosure” of official information, reflected in its long title which relevantly describes it as, “[a]n Act to require information concerning documents held by the Government to be made available to the public, to enable a member of the public to obtain access to documents held by the Government …”: see Commissioner of Police v District Court of New South Wales & Anor (1993) 31 NSWLR 606 at 613 per Kirby P. It operates on the premise that there is a public interest in the public having access to Government information to facilitate the public’s ability to discuss, review and criticize government action. General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (“WorkCover”) per McColl JA at paragraph 147.

9 Section 5(3) of the FOI Act requires that it be interpreted and applied so as to further its objects, bearing in mind that while the Act gives a legally enforceable right to be given access to documents held by the Government, that right is subject to such restrictions as are reasonably necessary for the proper administration of the Government: section 5(2)(a) and (b). Determining whether documents should be disclosed involves balancing those two matters: WorkCover at paragraph 151.

10 Exempt documents are dealt with in Schedule 1 to the FOI Act. Clause 1 of Schedule 1 provides:

1 Cabinet documents

(1) A document is an exempt document:

(a) if it is a document that has been prepared for submission to Cabinet (whether or not it has been so submitted), or

(b) if it is a preliminary draft of a document referred to in paragraph (a), or

(c) if it is a document that is a copy of or of part of, or contains an extract from, a document referred to in paragraph (a) or (b), or

(d) if it is an official record of Cabinet, or

(e) if it contains matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

(2) A document is not an exempt document by virtue of this clause:
(a) if it merely consists of factual or statistical material that does not disclose information concerning any deliberation or decision of Cabinet, or

(b) if 10 years have passed since the end of the calendar year in which the document came into existence.

(3) Subclause (2) (b) does not apply to a document that came into existence before the commencement of this clause.

(4) In this clause, a reference to Cabinet includes a reference to a committee of Cabinet and to a subcommittee of a committee of Cabinet.

11 The RTA contends that it has conducted an adequate search of its records and no documents within the ambit of the FOI application have been located other than those identified. It also contends that it has correctly determined that the documents not produced to Mr Kerr are Cabinet documents and so exempt from production under the FOI Act.

Adequacy of search

12 The RTA relies on affidavits of Mr Craig Moran and Mr Graeme Pattison in relation to the adequacy of the searches carried out by the RTA. Mr Moran is General Manager Traffic Systems within the Traffic and Transport Directorate of the RTA. Mr Pattison is employed by the RTA as ITS & Project Development Engineer, Sydney Traffic Services.

13 Mr Kerr elected not to cross-examine either Mr Moran or Mr Pattison. The RTA argues that because he declined the opportunity to cross-examine as to the adequacy of the RTA's searches, Mr Kerr is not entitled to argue that those searches were deficient.

14 Mr Pattison’s evidence is that the BLMS project consisted of trials of bus lane camera detection devices in three locations in Sydney. The BLMS project was performed for the Traffic and Transport Directorate by Sydney Traffic Services. At that time Sydney Traffic Services was part of RTA Operations, which was the RTA's service delivery arm. RTA Operations offered products and services to the RTA and to external clients. Sydney Traffic Services performed the civil works required under the project and contracted with AspectTraffic Pty Ltd who in turn sub-contracted Peek Traffic Limited for the supply and installation of necessary systems.

15 Mr Pattison was responsible for the BLMS project within Sydney Traffic Services. His role involved supplying, installing and setting up the necessary equipment for the BLMS. He worked closely with Mr Moran in carrying out these functions and provided Mr Moran with documents and digital photographs, which were samples of the images captured by the detection devices. He stated that he was not requested to, and did not, prepare any report, beyond construction progress reports, or perform any assessment of the BLMS project on behalf of Sydney Traffic Services or the RTA. He is not aware of any such requested report or assessment being prepared either by Sydney Traffic Services, its contractors, or the Traffic and Transport Directorate.

16 Mr Pattison stated that in response to Mr Kerr’s FOI request he reviewed all material relating to the BLMS project that was in his possession. In performing this review, he did not identify any documents which he considered fall within the ambit of the FOI request. He further stated that he does not believe that any other person in Sydney Traffic Services would possess documents that fall within the ambit of the FOI request.

17 Mr Moran’s evidence is that the RTA conducted the BLMS project during 2001 and 2002 and that he was the Project Director responsible for the BLMS project for its entire lifespan. He provided a broad outline of the nature of the project and states that during the trial the contractor provided him with various documents, including photograph and video verification records, but that he did not seek and was not provided with any written report or assessment of the trials. He further states, as the RTA officer with responsibility for the BLMS project, that he does not believe that any other RTA officer sought or was provided with any such report or assessment. One possible exception is an email dated 17 October 2001 from Mr Stephen Gateley of AspectTraffic Pty Ltd. A copy of that e-mail is annexed to his affidavit.

18 Mr Moran states that he assessed the Project by observation but did not document the assessment in any way or prepare any written report, except that contained in a Cabinet memorandum. He does not believe that any other RTA officer would have prepared any such report or assessment.

19 Mr Moran stated that he is aware that other surveys and assessments conducted by the RTA in the location of the trial sites suggested that the installation of cameras decreased the number of motor vehicles using bus lanes illegally. However, he says that these surveys were not conducted as part of the BLMS project and do not contain any assessment of the project.

20 He concluded that the documents that have been identified are the only documents in the RTA's possession, which fell within the ambit of Mr Kerr’s FOI request.

The documents not produced

21 The RTA has identified documents comprising 74 folios as within the ambit of the FOI application. Of those documents, folios 21-71 have been produced to Mr Kerr. Copies of the documents not produced to Mr Kerr have been provided to the Tribunal. The RTA argues that it is clear from the face of each of the documents that they are exempt Cabinet documents for the purposes of the FOI Act. It describes the documents in the following terms:

Folios 1-17 constitute a Cabinet Minute

Folio 18 is a Cabinet Decision

Folios 19-20 constitutes a brief for Cabinet prepared by the RTA.

Folios 72-74 are briefing notes on the proposed Road Transport Legislation Amendment (Public Transport Lanes) Bill 2003.

22 The RTA contends that:

the Cabinet Minute contained in Folios 1-17 and the Cabinet Decision contained in Folio 18 are official records of Cabinet and so are exempt documents under clause l(d) of Part 1 of Schedule 1 of the FOI Act.

the brief for Cabinet contained in Folios 19-20 and the briefing notes contained in Folios 72-74 were prepared for submission to Cabinet and so are exempt documents under clause l(a) of Part 1 of Schedule 1 of the FOI Act.

23 Each of the documents comprising folios 1-20 and 72-74 are the subject of a certificate issued by the Director-General of the Cabinet Office under section 22 of the Ombudsman Act 1974. The certificate certifies that the documents in question are exempt Cabinet documents for the purposes of the FOI Act.

24 The RTA contends that while not determinative of the issue, the fact that the documents have been certified as being exempt Cabinet documents for the purposes of the Ombudsman Act on the basis that they exempt documents under the FOI Act is persuasive that the documents have been correctly determined by the RTA as exempt from production under the FOI Act.

Mr Kerr’s case

25 Mr Kerr is interested in the outcome of the trial of the use of technology in limiting illegal use by motorists of bus lanes. Bus lanes are designed to increase bus travel times by allowing buses their own area of road. Private vehicles are banned from using them except for short periods when turning through them into another road. There is difficulty in enforcing bus lanes. If police do the job they often have to pull motorists over within the lanes, undermining the value of having them.

26 In September 2002 Mr Kerr wrote an article for The Sydney Morning Herald in which he reported on the trial and referred to the view expressed by an RTA spokeswoman that the technology had proved effective, showing that it could reliably photograph the number plates of motorists using the bus lanes illegally.

27 There are two aspects to Mr Kerr’s application. Firstly, he asserts that the search undertaken by the RTA was inadequate. Secondly, he queries whether a Cabinet exemption still applies to those documents for which it is claimed, and seeks the release of any not validly holding that claim.

28 In relation to the adequacy of search issue, Mr Kerr contends that there are other documents that have been identified that are within the scope of his application. He referred to Mr Moran’s statement that “other surveys and assessments conducted by the RTA in the location of the trial sites suggested that the installation of cameras decreased the number of motor vehicles using bus lanes illegally. However, these surveys were not conducted as part of the BLMS project and do not contain any assessment of the project.” The RTA did not release documents from those surveys.

29 Mr Kerr disputes the RTA’s claim that they did not fall within the scope of his request. He says that those documents are assessments of the effect of the placement of the cameras and therefore fall within the scope of the FOI request. He disputes that a distinction should be drawn between, on the one hand, documents that assess the effectiveness of the cameras themselves, and, on the other hand, documents that assess the impact of the placement of the cameras at the trial sites. He contends that the wording of his application is broad enough to encompass both documents touching on the effectiveness of the cameras and documents discussing their effect on traffic behaviour.

30 In support of his contention that the RTA’s search was inadequate Mr Kerr also referred to the Second Reading speech on the introduction into Parliament of the Road Transport Legislation Amendment (Public Transport Lanes) Bill 2003. Mr Tony Stewart, on behalf of the Minister Mr Carl Scully, stated:

“Since 2001 the RTA has installed three bus lane camera trial sites on Oxford Street at Paddington, York Street in Sydney CBD and the Warringah Freeway at North Sydney to test the digital imaging technology and image-matching capability between two checkpoints.

The trial sites have indicated that a system incorporating digital camera-based technology and OCR software can effectively detect and record illegal use of bus lanes with a high degree of reliability.”

31 Mr Kerr also referred to Mr Moran's evidence that during the trial he was provided with documents, including photographs and video verification records, which were samples of the images captured by the detection device. He contends that these documents are also captured by his request and asks that they be released on that basis.

32 Mr Kerr says that it seems hard to accept that the RTA has nothing in writing that pertains to the effectiveness of this trial, which has been conducted over several years. He argues that if Mr Moran’s evidence is true, it seems to suggest that the RTA has accepted an email and photographs as proof that a contractor had met the terms of its contract.

33 Mr Kerr seeks an order that the RTA conduct a fresh search of its records, to determine whether other documents exist that should be considered within the scope of the application.

Findings and Decision

34 As indicated above, Mr Kerr’s FOI request sought access to “assessment of the trials of bus lane cameras placed in Sydney CBD streets.” He has been given a number of documents however access to others documents that have been identified as falling within the scope of the request have been refused. The RTA asserts that those documents are Cabinet documents and so exempt from production under the FOI Act. I have been given a copy of those documents and after considering them I am satisfied that the RTA has correctly determined this aspect of the matter. It is clear from the face of each of the documents that they are exempt Cabinet documents for the purposes of the FOI Act. Nevertheless, the RTA has discretion under section 25(1)(a) of the FOI Act to release a document that has been found to be exempt.

35 Section 28(1)(e) provides that if the determination is that access is refused, the agency must specify its reasons, and the findings on any material questions of fact, with a reference to the sources of information on which those findings are based. In this matter the RTA has merely stated that the documents are exempt. It provided no reasons for the determination to refuse access to the documents.

36 There will generally be sound public policy reasons for an agency to refuse to release exempt Cabinet documents. I agree with the views expressed by Britton JM in Neary -v- Treasurer of New South Wales [2001] NSWADT 161 where she stated:

“23 Section 25 gives the decision-maker discretion to release an exempt document. It does not follow that once it is established that a document is an exempt document that the decision-maker must refuse access to that document, although that will frequently be the case. To do so would in my view undermine the objectives of the Act. In exercising their discretion concerning exempt documents the decision-makers must take into [account] the objects of the Act as well as the public interest in, for example, preserving the integrity of Cabinet processes.

24 That said, it would be rare indeed for an exempt Cabinet document, especially one covered by a conclusive certificate to be disclosed to an FOI applicant. The reason for this is very simple. Our system of government depends for its integrity and proper functioning upon Cabinet being free to deliberate on the most crucial questions of the day in the confidence that those deliberations will be conducted frankly and with the best available information. Ministers need to be able to speak and listen openly and critically in order to arrive at the best possible decisions they are capable of reaching in the public interest. To do so the confidentiality of their discussions is essential and critical.”

37 The question of whether the Tribunal has any discretion under section 25(1)(a) of the FOI Act to release a document that has been found to be exempt has been raised in a number of matters before this Tribunal but has not been resolved at the Appeal Panel level. Section 25(1)(a) provides that an agency may refuse access to a document if it is an exempt document. Arguably, while this section gives the agency discretion to release an exempt document, the Tribunal is not exercising power under section 25 when it is determining an application. In Neary -v- The Treasurer, New South Wales [2002] NSWADT 261 the Tribunal’s President considered the issue in some detail and concluded at paragraph 83:

“ 83 Accordingly in my view it is not open to applicants for review to seek an order, purportedly in exercise of powers conferred by s 25, that a Minister or agency release an otherwise exempt document. That discretion remains entirely with the Minister or agency.”

38 I agree with that view, however if such discretion may be said to exist, I consider that it is not appropriate in the circumstances of this case to release the disputed documents in any event.

39 The remaining issues for determination relate to the adequacy of the search conducted by the RTA. These concern the scope of the FOI request and whether other documents that the RTA has identified fall within it. In my view, the RTA has taken an unreasonably narrow view of Mr Kerr’s request. The request does not simply relate to the assessment of the bus lane cameras but includes the assessment of the trials involving those cameras. I agree with Mr Kerr that this would include documents discussing the effect of the cameras on traffic behaviour.

40 I am not satisfied that the documents, photographs and video verification records that Mr Moran was given during the trial fall within the scope of the FOI request because they do not provide an assessment of either the trials or the cameras.

41 Mr Moran has indicated that other surveys and assessments conducted by the RTA give some indication of the effect of the cameras on traffic behaviour. In my view, any documents that give such an indication would fall within the scope of the in the FOI request.

42 That being the case, the appropriate order is for the matter to be remitted to the RTA for further consideration so that a search can be undertaken to ascertain whether it holds any other documents that fall within the scope of the FOI request and if so, to determine whether they are exempt from production under the FOI Act.

Orders

1. That part of the agency's decision which relies on Clause 1 of Schedule 1 to the Freedom of Information Act 1989 (Cabinet documents) is affirmed

2. The matter is otherwise remitted pursuant to section 65(1) of the Administrative Decisions Tribunal Act 1997 for reconsideration by the agency.

3. The agency is to advise Mr Kerr of its determination with respect to Order 2 within 21 days.

4. This matter is re-listed for a further planning meeting on Tuesday 4 July 2006 at 9:30 am.