White v NSW Department of Education and Training - [2009] NSWADT 154

CITATION: White v NSW Department of Education and Training [2009] NSWADT 154
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES:
APPLICANT
Christine Patricia White
RESPONDENT
NSW Department of Education and Training

FILE NUMBER: 083217

HEARING DATES: 13 January 2009

SUBMISSIONS CLOSED: 13 January 2009

DATE OF DECISION:
22 June 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents – adequacy of search

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

CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Department of Education and Training v Mullett
GJ v NSW Department of Education and Training [2008] NSWADT 310 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Young v Wicks (1986) 13 FCR 85

REPRESENTATION:
APPLICANT
In person
RESPONDENT
L Watson, solicitor

ORDERS: 1.The decision under review is affirmed insofar as it concerns the documents identified as pages 98, 99, 100 and pages 167 to 182.
2.The decision under review is set aside insofar as it relates to the documents identified as pages 94 to 96. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009.
3. The decision under review, insofar as it relates to documents from the DET’s Legal Services Directorate, is remitted to DET for reconsideration. That reconsideration is to be made in accordance with the amended scope of request, which excludes from the scope of the original request all documents which the review officer considers, on their face, to be likely to be subject to a claim of legal professional privilege. That reconsideration is to be completed by 31 January 2010.
4.The decision under review is dismissed insofar as it concerns the failure to provide access to documents said to have been identified as existing by the documents identified as pages 180 and 181.
5.The matter is to be listed for a further planning meeting at 9.30 am on Tuesday 11 August 2009.

1 The Applicant applied to the Department of Education and Training ("the DET") under the Freedom of Information Act 1989 ("the FOI Act”) seeking access to documents held by the DET. Her request was in the following terms:

1. Files ‘held' by HAHS that record meetings I had with staff, telephone conversations I had with Staff, letters that include information about me, minutes of meetings that referred to me or my affairs (e.g. meeting held at the school between parents and teachers following the banning of the P & C in 2005), emails referring…

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.

Continue reading White v NSW Department of Education and Training

Details

AGLC: White v NSW Department of Education and Training [2009] NSWADT 154
Case: [2009] NSWADT 154
Decision Date: 22 June 2009

CaseChat Overview and Summary

In the case of White v NSW Department of Education and Training, the applicant sought access to certain documents under the Freedom of Information Act. The dispute centred on the adequacy of the search conducted by the Department to locate documents responsive to the applicant's request. The matter was heard and determined by the Administrative Decisions (Administrative Review) Tribunal. The Tribunal was tasked with examining whether the Department had fulfilled its obligations under the Act by conducting a comprehensive search for documents that could be disclosed.

The central legal issues revolved around the interpretation and application of the Freedom of Information Act, specifically focusing on the Department's duty to conduct a diligent search for documents that might be disclosed. The Tribunal needed to determine whether the Department's search efforts were adequate and whether any identified shortcomings warranted setting aside the Department's decision and remitting it for reconsideration.

The Tribunal concluded that the Department had not conducted an adequate search for documents as required by the Act. It found that while some documents were appropriately identified, others were either overlooked or inadequately searched for. The Tribunal held that the decision concerning the documents on pages 94 to 96 and those identified by the Department's Legal Services Directorate should be remitted for reconsideration. Conversely, the Tribunal affirmed the decision regarding certain other documents, holding that the Department's actions in relation to those documents were satisfactory.

The final orders included affirming the decision concerning certain documents, setting aside and remitting other decisions for reconsideration by specific deadlines, and dismissing the application in relation to other documents. Additionally, the matter was scheduled for a further planning meeting to manage the progression of the case.

Orders

Orders of the court

1.The decision under review is affirmed insofar as it concerns the documents identified as pages 98, 99, 100 and pages 167 to 182. 2.The decision under review is set aside insofar as it relates to the documents identified as pages 94 to 96. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009. 3.The decision under review is set aside insofar as it relates to the documents identified by the DET's Legal Services Directorate as possibly falling within the scope of the FOI request. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009. 4.The decision under review is dismissed insofar as it concerns the failure to provide access to documents said to have been identified as existing by the documents identified as pages 180 and 181. 5.The matter is to be listed for a further planning meeting at 9.30 am on Tuesday 11 August 2009.

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:	White v NSW Department of Education and Training [2009] NSWADT 154 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Christine Patricia White RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083217
HEARING DATES:	13 January 2009
SUBMISSIONS CLOSED:	13 January 2009
DATE OF DECISION:	22 June 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - access to documents – adequacy of search
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 Department of Education and Training v Mullett GJ v NSW Department of Education and Training [2008] NSWADT 310 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT L Watson, solicitor
ORDERS:	1.The decision under review is affirmed insofar as it concerns the documents identified as pages 98, 99, 100 and pages 167 to 182. 2.The decision under review is set aside insofar as it relates to the documents identified as pages 94 to 96. That aspect of the decision is remitted for reconsideration by the DET pursuant to section 65 of the ADT Act. The redetermination is to be completed prior to 31 July 2009. 3. The decision under review, insofar as it relates to documents from the DET’s Legal Services Directorate, is remitted to DET for reconsideration. That reconsideration is to be made in accordance with the amended scope of request, which excludes from the scope of the original request all documents which the review officer considers, on their face, to be likely to be subject to a claim of legal professional privilege. That reconsideration is to be completed by 31 January 2010. 4.The decision under review is dismissed insofar as it concerns the failure to provide access to documents said to have been identified as existing by the documents identified as pages 180 and 181. 5.The matter is to be listed for a further planning meeting at 9.30 am on Tuesday 11 August 2009.