Mitchell v Dept for Administrative & Information Services (Workplace Services)

[2005] SADC 137

District Court of South Australia

(District Court Administrative and Disciplinary Division)

MITCHELL v DEPT FOR ADMINISTRATIVE & INFORMATION SERVICES (WORKPLACE SERVICES)

Judgment of His Honour Judge Robertson (ex tempore)

5 October 2005

ADMINISTRATIVE LAW - THE OMBUDSMAN - DISCLOSURE OF INFORMATION

Appeal from decision of the Ombudsman under Freedom of Information Act upholding a decision by Department of Administrative and Information Services - Appellant seeking production of document - refusal by Department to produce on grounds that document is exempt from production under the Act - document exempt as the disclosure of the contents would be an offence under Section 55 of the Occupational Health Safety and Welfare Act - appeal dismissed.

Freedom of Information Act 1991 s20, Schedule 1, Item 12(1); Occupational Health, Safety and Welfare Act 1986 s55, referred to.

MITCHELL v DEPT FOR ADMINISTRATIVE & INFORMATION SERVICES (WORKPLACE SERVICES)
[2005] SADC 137

JUDGE ROBERTSON
ADMINISTRATIVE AND DISCIPLINARY DIVISION

1. This is an appeal by Mr Barry Mitchell from a decision of the Ombudsman, Mr Biganovski, delivered on 19 April 2005, arising from a determination by the Department of Administrative and Information Services (DAIS) refusing an application by the Appellant for the production of information contained in two documents, pursuant to the Freedom of Information Act1991 (“FOI Act”).

2. The Ombudsman’s decision indicated that he was not satisfied that a different determination should be made than that which was made by DAIS initially, and on an internal review.

3. The documents containing the information which the Appellant is seeking and which are the subject of this appeal are:

   ●First, a statement made by an officer of SA Crate Pty Ltd to Mr Paul Ploenges, a Work Place Inspector of DAIS, and recorded in an Investigation Summary Report.

   ●Secondly, details set out in a Risk Assessment Check List dated 2 July 2004, prepared by SA Crate Pty Ltd.

4. SA Crate Pty Ltd was the former employer of the Appellant. The Appellant complained to DAIS regarding work safety issues whilst he was an employee of SA Crate Pty Ltd. As a result of that complaint Mr Ploenges, of DAIS, commenced an investigation.

5. With respect to the refusal to permit inspection of the two documents, the decision of DAIS was that both documents and their contents were exempt from disclosure. DAIS relied upon Section 20 of the FOI Act and Item 12(1) of Schedule 1 of that Act. DAIS concluded that the documents were exempt because they contained matters, the disclosure of which would constitute an offence against the Occupational Health, Safety and Welfare Act 1986 (“Occupational Health Act”). Pursuant to Section 55 of the Occupational Health Act it is an offence to disclose information if the information was obtained in the course of carrying out functions in or related to the administration, operation or enforcement of the Act, and the information provided was in return or a response to a request for information under the Act.

6. Since the decision of the Ombudsman, DAIS no longer maintains its objection to the release of the information contained in the Investigation Summary Report prepared by Mr Ploenges. As a result, the only issue on this appeal relates to the information contained in the Risk Assessment Check List prepared by an officer of SA Crate Pty Ltd.

7. The evidence indicates that the Risk Assessment Check List was prepared by SA Crate Pty Ltd and furnished to DAIS as a result of a request contained in an Improvement Notice issued pursuant to Section 39 of the Occupational Health Act. This Improvement Notice was issued by Mr Ploenges in the course of his duties as an Officer of DAIS and in accordance with the duties he was performing under the Occupational Health Act.

8. In my opinion, the Risk Assessment Check List is a document which is exempt pursuant to the provisions of Section 20 of the FOI Act and Item 12(1) of Schedule 1 to that Act. In my view, the disclosure of the information contained in that document would constitute an offence under Section 55 of the Occupational Health Act. I note that the employer, SA Crate Pty Ltd, who supplied the information contained in the Risk Assessment Check List, refuses to give its consent to disclosure of the information contained therein, pursuant to Section 55(1a) of the Occupational Health Act.

9. Section 20 of the FOI Act gives a discretion to DAIS in that it is not obliged to refuse access to a document which is classified as an exempt document. The Section gives to DAIS a discretion as to whether it should refuse access to a document where it is an exempt document. However, in my opinion, in circumstances where the document is an exempt document because the disclosure of the information contained therein would cause an offence to be committed under another Act, the exercise of the discretion to refuse to grant access was a proper and legitimate exercise of the discretion. In refusing to exercise the discretion to grant access, the discretion provided under Section 20 has not miscarried.

10. I find that there is no cogent reason to depart from the decision of the Ombudsman with respect to the Risk Assessment Check List document. Accordingly, I affirm the decision of the Ombudsman with respect to that document. The appeal is dismissed. The document and the information contained therein are exempt from disclosure under the FOI Act.