Kerr v Roads v Traffic Authority (No 2) - [2006] NSWADT 310

CITATION: Kerr v Roads v Traffic Authority (No 2) [2006] NSWADT 310

DIVISION: General Division

PARTIES: APPLICANT
Joseph Kerr
RESPONDENT
Roads and Traffic Authority

FILE NUMBER: 053303

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 07/07/2006

DATE OF DECISION:
11/03/2006

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: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Kerr v Roads and Traffic Authority [2006] NSWADT 145
Schlebaum (No 3) -v- Director General, Department of Community Services & Anor [2002] NSWADT 128

REPRESENTATION:
APPLICANT
In person
RESPONDENT
P Salem, Solicitor

ORDERS: 1. The Roads and Traffic Authority is to provide Mr Kerr with a copy of the documents referred to in paragraphs 11 and 12 of these reasons; 2. The decision of the Roads and Traffic Authority is otherwise affirmed.

REASONS FOR DECISION

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 documents as falling within the scope of Mr Kerr’s application and Mr Kerr was provided with a copy of a number of those documents. Access to the remaining documents was refused on the basis that they were exempt from production under Clause 1 of Schedule 1 of the FOI Act.

4 Mr Kerr sought review of the RTA’s determination to refuse him access to those documents and also expressed concern about the adequacy of search. My decision in relation to the application is recorded as Kerr v Roads and Traffic Authority [2006] NSWADT 145. I affirmed that part of the RTA’s decision which relied on Clause 1 of Schedule 1 of the FOI Act (Cabinet documents) but I also formed the view that the RTA had taken an unreasonably narrow view of Mr Kerr’s request and remitted the matter for reconsideration.

5 The RTA conducted a further search to identify whether any other documents that it held came within the scope of the FOI request. It advised Mr Kerr of its determination that two further reports had been identified as relevant. Those documents…

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 310
Decision Date: 03/11/2006

CaseChat Overview and Summary

In Kerr v Roads and Traffic Authority (No 2), the respondent sought access to certain documents under the Freedom of Information Act. The applicant was the Roads and Traffic Authority. The dispute arose when the applicant refused the respondent's request for access to specific documents. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the applicant had adequately searched for the documents in question. The respondent argued that the applicant's search had been insufficient, thereby failing to comply with the requirements of the Act. The applicant contended that it had conducted a comprehensive search and located all relevant documents.

The court held that the applicant had not adequately searched for the documents, thus breaching the Act. It found that the search conducted by the applicant was not thorough enough and failed to locate certain documents that the respondent had requested. Consequently, the court ordered the applicant to provide the respondent with the documents in question and affirmed the rest of the applicant's decision.

In summary, the Supreme Court of New South Wales found that the applicant had not adequately searched for the documents as required by the Freedom of Information Act. The court ordered the applicant to provide the respondent with the documents in question, while affirming the rest of the decision. This ruling underscores the importance of conducting thorough searches to ensure compliance with the Act.

Orders

Orders of the court

1. The Roads and Traffic Authority is to provide Mr Kerr with a copy of the documents referred to in paragraphs 11 and 12 of these reasons; 2. The decision of the Roads and Traffic Authority is otherwise affirmed.

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 v Traffic Authority (No 2) [2006] NSWADT 310
DIVISION:	General Division
PARTIES:	APPLICANT Joseph Kerr RESPONDENT Roads and Traffic Authority
FILE NUMBER:	053303
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/07/2006
DATE OF DECISION:	11/03/2006
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:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Kerr v Roads and Traffic Authority [2006] NSWADT 145 Schlebaum (No 3) -v- Director General, Department of Community Services & Anor [2002] NSWADT 128
REPRESENTATION:	APPLICANT In person RESPONDENT P Salem, Solicitor
ORDERS:	1. The Roads and Traffic Authority is to provide Mr Kerr with a copy of the documents referred to in paragraphs 11 and 12 of these reasons; 2. The decision of the Roads and Traffic Authority is otherwise affirmed.