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 are reports titled:

Sydney Transit Lane & Bus Lane Survey Travel Time & Vehicle Occupancy March 2002 (“Document 1”); and

Sydney Transit & Bus Lanes Travel Times, Vehicle Occupancy & Illegal Usage Annual Performance Survey Transport Planning Section July 2003 (“Document 2”).

6 Mr Kerr was provided with a copy of each of those reports. However, those parts of the reports that the RTA considered did not fall within the scope of Mr Kerr’s request were deleted. The deleted sections were described as “masked for relevance”.

7 Mr Kerr sought review of the RTA’s determination to refuse him access to the deleted parts of those documents. He contends that “masked for relevance” is not a claim for exemption. He referred to section 16 of the FOI Act which provides that “A person has a legally enforceable right to be given access to an agency's documents in accordance with” the FOI Act. He also asserts that under section 25 of the FOI Act an agency may refuse to provide access to a document that is identified as relevant to a request only if it is an exempt document, if obtaining the document would unreasonably divert the agency from its work or if it is publicly available elsewhere. He submits that there is no exemption claimed and so the documents should be released.

8 The RTA argues that it has provided Mr Kerr with those parts of the documents that are responsive to his request. It says that those parts of the reports described as “masked for relevance” are not responsive. It relies on the decision of the Tribunal’s Deputy President in the matter of Schlebaum (No 3) -v- Director General, Department of Community Services & Anor [2002] NSWADT 128 as authority for the principle that an agency need only produce those parts of a document that are responsive to the application. The Deputy President stated at paragraph 20 of her decision:

“20 On the basis of these provisions, I have concluded that a “document” refers to any record of information. There is nothing in either to FOI Act or the Interpretation Act 1987 to suggest that a “document” means the whole of a particular record. It must only be “paper or other material on which there is writing”. Consequently an FOI request can relate to part of a record and still be a “document”.”
9 I agree with the RTA’s submission. In my view the RTA need only provide Mr Kerr with those parts of the documents that fall within the scope of Mr Kerr’s application.

10 The RTA has provided copies of the complete documents to the Tribunal on a confidential basis so that they can be assessed to determine whether the masked material should be provided to Mr Kerr. I have considered those documents. Having done so I am satisfied that, with the exception of those parts of the documents referred to below, all the material within those documents that falls within the scope of Mr Kerr’s application has been provided to him.

Document 1

11 At page 47, Table 16 contains data that has been summarised in the released material at page 49. In my view those corresponding parts of Table 15 should also be released.

Document 2

12 At page 2, paragraph 2 of the executive summary contains material that has been provided in the released material at page 56. In my view the material in paragraph 2 that corresponds to the released material at page 56 should also be released.

Adequacy of the search

13 In my earlier decision in this application I stated at paragraph 39:

“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.”
14 I am satisfied that the RTA has taken my view into account in its reconsideration of the matter. In the circumstances I have no reason to believe that the RTA holds any other documents that fall within the scope of Mr Kerr’s request.

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.