McGuirk v NSW Ombudsman (No 2)

CITATION: McGuirk v NSW Ombudsman (No 2) [2006] NSWADT 212

DIVISION: General Division

PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
NSW Ombudsman

FILE NUMBER: 053250; 063028

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 07/07/2006

DATE OF DECISION:
07/20/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - statutory exemption - Freedom of Information Act - access to documents - statutory exemption

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17

REPRESENTATION:
APPLICANT
In person
RESPONDENT
NSW Ombudsman

ORDERS: 1. The matters are remitted to the Ombudsman pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 for reconsideration in a manner consistent with the findings of the Tribunal’s Appeal Panel in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17; 2. The matters are listed for further directions on 12 September 2006 at 9:30 am.

REASONS FOR DECISION

1 Mr McGuirk has applied to the Office of the Ombudsman under the Freedom of Information Act 1989 (“the FOI Act”) seeking access to documents held by that office. The Ombudsman asserted that the documents sought fall within an exemption offered by section 9 and Schedule 2 of the FOI Act. Mr McGuirk sought review of the Ombudsman’s determinations in the Tribunal.

2 The matters were adjourned pending finalisation of an appeal in the decision in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17 (“the ICAC matter”). The issues in that matter are similar to those in these applications. The decision in the ICAC matter was finalised on 26 April 2006. The Tribunal’s Appeal Panel’s decision is now on appeal to the Supreme Court.

3 On 20 June 2006 Mr Cohen applied for the matters to be stood over generally pending determination of the Supreme Court matter. Mr McGuirk opposed Mr Cohen’s application. Following completion of submissions by each of the parties, I determined that the application for adjournment should be refused and I invited the parties are to make written submissions with respect to the further conduct of the matter.

4 Both Mr Cohen and Mr McGuirk have submitted that the proper order in these matters is that they be remitted to the Ombudsman pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 for reconsideration in a manner consistent with the findings of the Tribunal’s Appeal Panel in the ICAC matter. In light of the Appeal Panel’s decision I agree with that approach.

5 Mr McGuirk has requested that the remittal be on the basis that the determination by the Ombudsman be strictly in accordance with both the letter and the objects of the FOI Act, the FOI Procedures Manual, Third Edition 1994 issued by the NSW Premier’s Department and the NSW Ombudsman’s FOI Policies and Guidelines, Second Edition July 1997. While I agree that this is the correct approach to be taken by the Ombudsman, I do not consider that it is necessary to issue such a direction.

Orders

1. The matters are remitted to the Ombudsman pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 for reconsideration in a manner consistent with the findings of the Tribunal’s Appeal Panel in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17.
2. The matters are listed for further directions on 12 September 2006 at 9:30 am.

McGuirk v NSW Ombudsman (No 2) was a case in which the appellant sought access to documents under the Freedom of Information Act 1982 (NSW). The appellant sought information from the NSW Ombudsman regarding a complaint made against the appellant. The case was heard in the Administrative Appeals Tribunal of New South Wales.

The legal issue before the Tribunal was whether certain documents were exempt from disclosure under the statutory exemption provisions of the Freedom of Information Act 1982 (NSW). The appellant argued that the documents were not exempt from disclosure and that the Ombudsman had failed to provide adequate reasons for withholding them. The Ombudsman argued that the documents were exempt from disclosure because they contained sensitive information that could harm the appellant's reputation and privacy.

The Tribunal found that the Ombudsman had failed to provide adequate reasons for withholding the documents and that the exemption provisions of the Freedom of Information Act 1982 (NSW) did not apply. The Tribunal concluded that the documents were not exempt from disclosure and that the Ombudsman was required to provide the appellant with access to them. The Tribunal also found that the Ombudsman had not acted lawfully, reasonably or fairly in withholding the documents and that the appellant's rights under the Freedom of Information Act 1982 (NSW) had been breached.

The Tribunal remitted the matters to the Ombudsman for reconsideration in a manner consistent with the findings of the Tribunal's Appeal Panel in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17. The Tribunal also listed the matters for further directions on 12 September 2006 at 9:30 am.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	McGuirk v NSW Ombudsman (No 2) [2006] NSWADT 212
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT NSW Ombudsman
FILE NUMBER:	053250; 063028
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/07/2006
DATE OF DECISION:	07/20/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - statutory exemption - Freedom of Information Act - access to documents - statutory exemption
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17
REPRESENTATION:	APPLICANT In person RESPONDENT NSW Ombudsman
ORDERS:	1. The matters are remitted to the Ombudsman pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 for reconsideration in a manner consistent with the findings of the Tribunal’s Appeal Panel in McGuirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17; 2. The matters are listed for further directions on 12 September 2006 at 9:30 am.