CITATION: McGuirk v NSW Ombudsman (No 3) [2007] NSWADT 269 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Gerard Michael McGuirk
NSW OmbudsmanFILE NUMBER: 053250; 063028 HEARING DATES: On the papers SUBMISSIONS CLOSED: 25 June 2007
DATE OF DECISION:
21 November 2007BEFORE: 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 1974CASES 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 108REPRESENTATION: In person
S Cohen, solicitorORDERS: 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:
2 In his application which is the subject of matter number 063028 (“the 063028 application”) Mr McGuirk sought:
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.
“Part 1 of Application
The document to which I am seeking access under this part is…
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- Case
- [2007] NSWADT 269
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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