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…

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: [2006] NSWADT 145
Decision Date: 05/18/2006

CaseChat Overview and Summary

In the matter of Kerr v Roads and Traffic Authority, the applicant sought access to certain documents held by the defendant under the Freedom of Information Act 1989. The dispute centred on whether the agency's search for documents was adequate and whether certain cabinet documents were exempt from disclosure. The matter was heard in the Administrative Decisions (Judicial Review) Act 1997.

The primary legal issues before the court were whether the agency's search for documents was reasonable and adequate, and whether the documents in question were exempt from disclosure under the Freedom of Information Act. Specifically, the court had to determine if the agency's reliance on Clause 1 of Schedule 1 to the Act, which pertains to cabinet documents, was justified. The applicant argued that the agency's search was inadequate and that the documents should be disclosed.

The court held that the agency's search was adequate and that the documents were properly withheld under Clause 1 of Schedule 1. The court found that the agency had conducted a reasonable search and had provided sufficient justification for withholding the cabinet documents. However, the court also found that the agency's decision to withhold the documents was not in accordance with the law, as it did not consider relevant factors. As a result, the matter was remitted for reconsideration.

The court affirmed the agency's decision to the extent that it relied on Clause 1 of Schedule 1 to the Freedom of Information Act. However, the court also ordered that the matter be remitted for reconsideration by the agency, as the agency's decision did not comply with the law. The agency was directed to advise the applicant of its determination within 21 days, and the matter was re-listed for a further planning meeting.

Orders

Orders of the court

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.

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:	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.