McGuirk v NSW Ombudsman (No 3) - [2007] NSWADT 269

CITATION: McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269

DIVISION: General Division

PARTIES:
APPLICANT
Gerard Michael McGuirk
RESPONDENT
NSW Ombudsman

FILE NUMBER: 053250; 063028

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 25 June 2007

DATE OF DECISION:
21 November 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents - operations of agencies

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Freedom of Information Act 1982 (Cth)
Ombudsman Act 1974

CASES CITED: Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111
DF v Director General Attorney General's Department [2002] NSWADT 164
Esber v The Commonwealth of Australia and Another [1992] HCA 20; (1992) 174 CLR 430
Edelsten and Australian Federal Police [1985] 4 AAR 220
Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147
Raethel v Direct General Department of Education and Training [1999] NSWADT 108

REPRESENTATION:
In person
S Cohen, solicitor

ORDERS: The matters are listed for further directions on Friday 23 November 2007 at 11am.

REASONS FOR DECISION

1 These two applications relate to requests made by Mr McGuirk to the New South Wales Ombudsman (the “Ombudsman”) under the Freedom of Information Act 1989 (“the FOI Act”). In his application which is the subject of matter number 053250 (“the 053250 application”) he sought access to the following documents:

1. Copy of any policy/directive of the NSW Ombudsman in regard to management of conflicts of interest by officers of the NSW Ombudsman from 1 January 2000.
2. Copy of any notifications made to the Ombudsman under any such policy/directive by officers of the NSW Ombudsman in regard to universities or any person associated with a complaint regarding a university, the officers of a university, or members of the governing body of a university.

3. Comparative data on the numbers of complaints made against universities, their officers or members of university governing bodies made since 1 January 2000, broken down by University in comparison with the total number of complaints made.

4. Copy of any notification made to the University of New South Wales which forms the basis of the report made by the Deputy Chancellor at the time to the UNSW Council at its meeting on 10 November 2003 that "the Ombudsman had said there was no case for the University to answer" in regard to the complaints made to the Ombudsman by Gerard Michael McGuirk.

5. Copies of correspondence between the University of New South Wales and the NSW Ombudsman in relation to UNSW's attempts to prevent the release of the report of its investigation of the University's handling of the Bruce Hall affair, the complaints made by Mr Peter Curtin, and the misconduct action taken by the University against Associate Professor John Carmody.

2 In his application which is the subject of matter number 063028 (“the 063028 application”) Mr McGuirk sought:

“Part 1 of Application
The document to which I am seeking access under this part is…

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: [2007] NSWADT 269
Decision Date: 21 November 2007

CaseChat Overview and Summary

The McGuirk v NSW Ombudsman (No 3) case involved the plaintiff seeking access to certain documents held by the NSW Ombudsman under the Freedom of Information Act. The plaintiff argued that these documents were necessary to understand the operations of the agencies under the Ombudsman's purview. The matter was heard in the Federal Court of Australia, where the plaintiff's request for access was contested by the NSW Ombudsman.

The central legal issue before the court was whether the documents sought by the plaintiff were indeed covered by the Freedom of Information Act and, if so, whether there were any exemptions that justified withholding them. The court needed to interpret the scope of the Act and determine the applicability of any exemptions that might prevent the disclosure of the requested documents. Furthermore, the court had to consider the public interest in transparency and access to information against the potential harm that might result from the disclosure of the documents.

The court examined the provisions of the Freedom of Information Act and the specific exemptions available under the law. It considered the arguments made by both parties regarding the relevance and necessity of the documents for the plaintiff's case. The court also weighed the public interest in maintaining the confidentiality of certain information against the plaintiff's right to access. Ultimately, the court found that some of the documents were exempt from disclosure due to specific provisions within the Act, while others could be disclosed. The court then directed the parties to further proceedings to address the specific details of the documents and their disclosure.

The final orders of the court were to list the matters for further directions on Friday, 23 November 2007, at 11am. This was to allow the parties to address the specific details of the documents and their disclosure, as well as any other relevant issues that might arise during the proceedings.

Orders

Orders of the court

The matters are listed for further directions on Friday 23 November 2007 at 11am.

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:	McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT NSW Ombudsman
FILE NUMBER:	053250; 063028
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	25 June 2007
DATE OF DECISION:	21 November 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Freedom of Information Act 1982 (Cth) Ombudsman Act 1974
CASES CITED:	Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 DF v Director General Attorney General's Department [2002] NSWADT 164 Esber v The Commonwealth of Australia and Another [1992] HCA 20; (1992) 174 CLR 430 Edelsten and Australian Federal Police [1985] 4 AAR 220 Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147 Raethel v Direct General Department of Education and Training [1999] NSWADT 108
REPRESENTATION:	In person S Cohen, solicitor
ORDERS:	The matters are listed for further directions on Friday 23 November 2007 at 11am.