In addition to the activities Ombudsman South Australia is obliged to report on, we have also included our operational policies, and selected public presentations and FOI determinations which you may find useful in understanding the scope of the Ombudsman’s work and responsibilities.
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December 2017: Department of Planning, Transport and Infrastructure
The applicant sought access to all documents, contracts or agreements related to the specifications, suppliers and tender process for the supply of security cameras in taxis from 2013 to the present. The agency failed to provide a determination in response to the original application and the application for internal review, so the documents were deemed to have been refused entirely. In response to the Ombudsman’s external review the agency identified 32 documents falling within the scope of the applicant’s request. The agency submitted that clauses 4(2), 6(1), 7(1)(a), 7(1)(b), 7(1)(c), 9(1) and 13(1)(a) were applicable to the documents. During the external review process the applicant confirmed that he did not wish to pursue access to information concerning personal details and, therefore, clause 6(1) was excluded from the Ombudsman’s external review, and redactions to personal information remained in place. The Ombudsman’s determination primarily turned on the reasonability of expecting that disclosure could have a nominated adverse effect on law enforcement or the business affairs of third party/s. Clauses 4(2), 9(1)(a) and 13(1)(a) were not applicable. Clauses 7(1)(b) and 7(1)(c) were considered to be applicable to portions of material but to a far lesser extent than submitted by the agency. The Ombudsman therefore varied the determination to enable the documents to be partially released after redacting personal details of third parties, detailed technical specifications of cameras, a unique access code, a customer list, and references to exclusive business relationships.
December 2017: Central Adelaide Local Health Network
The applicant sought access to documents about prostheses purchases in three categories from July 2015 to December 2015. The agency identified two documents within the scope of the access application, containing information extracted from its database. The agency and some of the interested parties claimed that document 1 and parts of document 2 were exempt as documents affecting business affairs (clauses 7(1)(a); 7(1)(b) and 7(1)(c)), documents the subject or secrecy provisions (clause 12(1)), and documents containing confidential material (clause 13(1)(a) and 13(1)(b)). The Ombudsman rejected the clause 12(1) claim as no relevant offence provision was identified. The Ombudsman accepted that pricing information concerning some of the interested parties was exempt under clause 13(1)(a), where the relationship between the interested parties and the government was underpinned by deeds of agreement containing confidentiality provisions (even though the deeds had expired). The Ombudsman was not satisfied that the residual information in issue (that is, excluding the pricing information relevant to the selected interested parties) was exempt, however because not all of the elements of the claimed exemption clauses had not been satisfied. When considering the public interest, the Ombudsman considered public interest in openness and accountability and facilitating more effective participation, the ongoing relevance of the information to the applicant and the public more generally to be persuasive factors, outweighing the factors against disclosure. In so doing, he had particular regard to the significant number of Australians who hold private health insurance and the opacity surrounding the Prostheses List system, as commented on by both the Internal Working Group and the Senate Committee. The Ombudsman varied the determination.
November 2017: City of Mount Gambier – Failure to take action
The complainant approached the Ombudsman with various concerns about additions and alterations to her neighbour’s property. The complainant was primarily concerned with the glare caused by her neighbour’s newly installed roof, but also raised several other issues in relation to the development. The complainant was of the view that the council had failed to consult with her and her husband prior to granting development approval for the alterations, that the council had also failed to take action against what the complainant perceived was not authorised development, and that the council had failed to consider the Mount Gambier Development Plan in assessing the development application. The complainant also considered that the council had failed to conduct a proper and robust review of her complaint. Whilst the Ombudsman did not make any findings of administrative error by the council, his report highlighted that the council ought to have sought paper advice in regard to interpreting provisions under the Development Act 1993 that it had relied on in responding to the Ombudsman enquiries.
November 2017: District Council of Coober Pedy – Failure to declare a conflict of interest
The Ombudsman received a referral from the Commissioner concerning the alleged failure of Cr Paul Reynolds to declare an interest in the matter of the District Council of Coober Pedy’s determination to execute a Power Purchase Agreement with Energy Developments (EDL). It was alleged that Cr Reynolds had an interest in the matter arising from his association with the Coober Pedy Miners Association, Coober Pedy Gem Trade Show and Coober Pedy Opal Festival. Both the Coober Pedy Gem Show and Coober Pedy Opal Festival were to receive an annual sponsorship from EDL for the duration of any new contract with the council. The sponsorship agreement was negotiated by the Coober Pedy Miners Association. Cr Reynolds did not declare an interest in the council’s consideration of the Power Purchase Agreement. The Ombudsman conducted an investigation and determined the Cr Reynolds had an interest in the matter as he was a member of the governing body of the Coober Pedy Gem Trade Show which had a reasonable expectation of receiving an indirect benefit depending on the outcome of the matter. The Ombudsman determined that on this basis Cr Reynolds failed to declare a conflict of interest in the matter as required by the Local Government Act and breached the Code of Conduct for Council Members, thereby committing misconduct with the meaning of the ICAC Act. The Ombudsman recommended that the council issue a reprimand to Cr Reynolds.
November 2017: Department for Correctional Services – Failure to induct prisoner
The Ombudsman received a complaint from a prisoner that he had been in prison for over four weeks and had only just managed to contact his family by telephone. The Ombudsman conducted an investigation and found that by failing to induct the prisoner when he entered the prison, as well as failing to induct the prisoner as he entered various different units within the prison, the department acted in manner that was wrong within the meaning of the Ombudsman Act 1972. The Ombudsman also found that by failing to assist the prisoner to make phone calls such as a free officer-assisted call that each prisoner receives upon entry to prison, and by failing to pass on messages from the prisoner’s wife, who had been attempting to get in contact with him, the department acted in a manner that was wrong with the meaning of the Ombudsman Act 1972. The Ombudsman made a range of recommendations, including that the department implement a procedure of compliance checks to ensure inductions are being completed, that the department apologise to the complainant, and that the department conduct a review of how contact from family members is managed.
November 2017: City of Burnside – Misconduct in public administration by Cr Lance Bagster
The Ombudsman received an ICAC referral raising allegations of misconduct in public administration on the part of Cr Lance Bagster of the City of Burnside. The Ombudsman found that Cr Bagster committed misconduct in public administration by divulging confidential information to the public at a meeting of the council, failing to declare and appropriately deal with a material conflict of interest in relation to three matters before the council and failing to appropriately deal with an actual conflict of interest in relation to another matter before the council. The Ombudsman found that Cr Bagster’s conduct was contrary to law in each respect. The Ombudsman recommended that the council reprimanded Cr Bagster and require Cr Bagster to issue an unqualified public apology for each breach of the code.
November 2017: Department for Correctional Services – Failure to ensure that a prisoner understood the induction process
The Ombudsman investigated a complaint as to whether the department was wrong in failing to provide a non-English speaking prisoner with an interpreter and translated documents to ensure that he understood the prison induction process. The Ombudsman found that the department acted in way that was wrong within the meaning of section 25(1)(g) of the Ombudsman Act.
November 2017: Minister for Transport and Infrastructure
The applicant sought access to ‘As at 10 January 2017 the names and titles of all staff in the Minister’s office including Ministerial staff and department staff appointed to the Minister’s office.’ The agency identified one document within scope of the applicant’s request. The agency refused access to the document on the basis that it was exempt pursuant to clauses 4(1), 6(1) and 16(1)(a). The Ombudsman considered whether release of the information sought would result to endangerment of life or physical safety of the agency’s staff members. The Ombudsman determined that it is incumbent on the agency to provide a safe workplace for his staff, but that the agency had not established a sufficient nexus between the document to the applicant and danger to its staff. The Ombudsman also considered whether disclosure could reasonably be expected to lead to a substantial adverse effect on performance by the agency of its functions. The Ombudsman was not persuaded that the disclosure of the document to the applicant would result in an increase in the frequency of instances of negative or objectionable behaviour by members of the public. Therefore, the Ombudsman determined to reverse the agency’s determination.
November 2017: Department of State Development
The applicant sought access to draft versions of the ‘South Australia. Made by small business’ 2016 Annual Small Business Statement released on 8 December 2016. The agency identified eight documents as falling within scope of the applicant’s request. Access was refused to each document on the basis they were exempt pursuant to clause 1(1)(b). There was evidence to support the agency’s claim that the final version of drafts had been prepared for submission to Cabinet. Whilst that version is publicly available, clause 1(1)(b) provides no opportunity to consider public interest factors or the reasonableness of disclosure. Therefore, the Ombudsman determined to vary the agency’s determination because clause 1(1)(b) could not apply to information that was merely factual or statistical material, as per clause 1(2)(a). Additionally, the Ombudsman exercised his discretion under section 39(12) and offered reasons why the agency might give access to documents despite their exempt status. The fact there was little risk that disclosure could have any adverse effect on Cabinet confidentiality formed the Ombudsman’s reasons in this regard.
November 2017: City of Adelaide
The applicant sought access to a variety of documents held by the Adelaide City Council in connection with the Royal Croquet Club 2017 and The Social Creative. The agency identified nine documents as falling within the scope of the applicant’s request and partially refused access on the basis of clauses 4(2) and 6(1). During the external review process the applicant confirmed that he did not wish to pursue access to information concerning personal details and, therefore, clause 6(1) was excluded from the Ombudsman’s external review. The Ombudsman determined that clauses 4(2)(a)(vi) and (b) were applicable to some of the material identified by the agency as concerning security and emergency management. However, the Ombudsman determined that where information lack sufficient detail to create any risk to systems and procedures, or the information did not reveal anything a reasonable person could not safely presume, clause 4 was not applicable.
October 2017: City of Onkaparinga – Breach of council member code of conduct
The Ombudsman received two complaints concerning Mayor Lorraine Rosenberg’s conduct at two separate council meetings. The complainant asserted that Mayor Rosenberg’s conduct amount to breaches of the Code of Conduct for Council Members. In relation to the first complaint, it was submitted that Mayor Rosenberg moved an item as urgent business and insisted that it be considered in confidence without any proper explanation. Further, the complainant alleged that councillors were not provided with relevant documents and not given adequate time in which to consider those documents prior to voting on the matter. In relation to the second complaint, it was submitted that Mayor Rosenberg moved a matter into confidence without a proper explanation and only advised councillors that the matter concerned alleged breaches of the Local Government Act 1999 but did not provide any information about those breaches. The Ombudsman found that in relation to both complaints Mayor Rosenberg did not breach the Code of Conduct for Council Members and did not act in a manner that was unlawful with the meaning of section 25(1)(a) of the Ombudsman Act.
October 2017: Department of the Premier and Cabinet (formerly Department of State Development)
Subject to review by the South Australian Civil and Administrative Tribunal
The applicant sought access to ‘all correspondence, emails, minutes of meetings, memos and notes regarding the cost and supply of electricity for BHP Billiton since 1 January 2016’. The agency and interested parties claimed the documents as Cabinet documents clauses 1(1)(c), 1(1)(e) and 1(1)(f); documents containing information concerning business (clause 7(1)(c)); internal working documents (clause 9(1)); documents containing confidential material (clauses 13(1)(a) and 13(1)(b)); documents affecting the economy of the State (clauses 14(a)(i) and 14(a)(ii), both with clause 14(b)); and documents concerning operations of agencies (clause 16(1)). The Ombudsman was satisfied that a dollar figure in one document was exempt under clause 13(1)(a) but rejected all of the other exemption claims. The Ombudsman varied the determination to enable all but the exempt dollar figure to be released.
October 2017: City of West Torrens – Breach of council member code of conduct
The Ombudsman received a report from Mayor John Trainer that he had failed to declare a material conflict of interest for the purposes of section 74 of the Local Government Act 1999 in relation to an agenda item that was voted on during a council meeting held on 4 April 2017. The purpose of the agenda item was to endorse Mayor Trainer’s participation in a state government delegation to Shandong, China in May 2017 at the council’s expense. The Ombudsman found that despite Mayor Trainer’s assertion that his failure to declare a conflict of interest was not intentional, and that he did not perceive pecuniary benefit as advantageous, he nonetheless received a pecuniary benefit and therefore had a material conflict of interest that he failed to declare. The Ombudsman recommended that Mayor Trainer issue a public apology to the council.
September 2017: Department for Correctional Services – Unjust and oppressive separation of a prisoner
The Ombudsman received a complaint from a prisoner concerning the circumstances and duration of his separation from other prisoners within G Division of Yatala Labour Prison. The Ombudsman conducted an investigation and concluded that the Department for Correctional Services unreasonably failed to document confidential intelligence information leading to the prisoner’s separation, unjustly directed that the prisoner be separated from all other prisoners and contravened section 36(9) of the Correctional Services Act by failing to provide a report to the Minister as soon as reasonably practicable after giving the direction. The Ombudsman further found that the department’s failure to revoke the separation direction for a period of 66 days was oppressive and was in accordance with a rule of law (namely section 36 of the Correctional Services Act) that is oppressive. The Ombudsman issued a range of recommendations, including that the department issue an apology and consider the provision of an ex gratia payment to the prisoner. The Ombudsman also recommended that section 36 of the Correctional Services Act be amended to establish a maximum period that a prisoner may ordinarily be kept separated from other prisoners and to require regular review by the Minister of a prisoner’s prolonged separation under the Act.
September 2017: Department of State Development
The applicant sought access to documents about a ‘joint venture between Adelaide City Council, the State Government, Australian Trade Alliance and The Social Creative in relation to the Royal Adelaide Club at the Qingdao International Beer Festival held in Shandong in 2016’ and a subsequent, related dispute. The Ombudsman concluded that disclosure of a parliamentary briefing note would infringe the privilege of Parliament, and it was therefore exempt under clause 17(c). Accordingly, he confirmed the agency’s determination.
September 2017: City of Mount Gambier – Failure to ensure issuing of Certificate of Occupancy
The Ombudsman investigated a complaint that the City of Mount Gambier had erred by failing to ensure a Certificate of Occupancy had been issued for a commercial building. The complainants were tenants running a business from the commercial building, but upon learning that their occupation of the building was illegal because no Certificate of Occupancy had been issued, the complainants were forced to close their business. Under the Development Act, the owner of a commercial building must inform the council when construction of the building is complete, with a Statement of Compliance, and then the council will issue a Certificate of Occupancy at which point it is legal to occupy the building. The Ombudsman found that the council became aware in 2011 that the building had not had a Certificate of Occupancy issued, yet failed to take appropriate action to ensure it had sighted a Statement of Compliance and then issue a Certificate of Occupancy. By failing to issue a Certificate of Occupancy until 2017, the Ombudsman found that the council had acted in a manner that was wrong within the meaning of the Ombudsman Act 1972. The council also failed to take any action, or make a record of the conversations, when the complainants approached the council with issues regarding the safety and compliance of the building.
Further, the owner of the commercial building had an annual obligation to return an Essential Safety Provisions Form 3. Between 2010 and 2016, the owner of the commercial building supplied only one Form 3 to the council. By failing to take any action regarding unreturned Form 3s, the Ombudsman found that the council had acted in a manner that was wrong within the meaning of the Ombudsman Act and recommended that the council implement a policy to ensure the council staff were taking appropriate follow up action to ensure Form 3s were being submitted by commercial building owners. The Ombudsman also recommended the council implement a policy to ensure that Requests for Service are properly actioned and recorded.
September 2017: Attorney-General
Subject to review by the South Australian Civil and Administrative Tribunal
The applicant sought access to legal advice received by a former Attorney-General in connection with his consideration of a petition for mercy made to the Governor of South Australia. The agency identified one document falling within scope of the applicant’s request and refused access to it on the basis that it was exempt under clauses 2(1), 9(1) and 10(1). The Ombudsman determined that there was no evidence to support the agency’s claim that the document contained any deliberation or advice of the Executive Council, which comprises the Ministry with the Governor presiding. The usual process followed upon the Attorney-General forming a view that the Governor should deny a petition for mercy is that such advice is conveyed directly to the Governor via the Premier.
Although the Ombudsman agreed that the document contained matter relating to an opinion or advice that was obtained for the purpose of the decision making functions of the former Attorney-General, he determined that its release would not be contrary to the public interest. In particular the Ombudsman rejected the notion that disclosure of the document would inhibit frankness and candour of any future advice provided by the Solicitor-General in similar circumstances.
The Ombudsman also agreed that, at the time the document was created, it would have been privileged from production on the ground of legal professional privilege. However the privilege had been impliedly waived by the conduct of the former Attorney-General who had referred to parts of it in a press release and during a press conference held in 2006. As the document dealt with a single subject matter, it was not possible to treat privilege having been waived as to part only of the document. The former Attorney-General should be taken as having impliedly waived legal professional privilege over the entire document.
September 2017: Minister for Sustainability, Environment and Conservation
The applicant sought access to his complete file held by the RSPCA in relation to an inspection of animals on his property. The inspection occurred in response to a complaint made to the RSPCA by a member of the public (the complainant). The Ombudsman exercised his discretion to extend the time for the applicant to make the application, which was made approximately two months late. The external review then focused on nine documents, which the agency claimed were exempt as documents affecting personal affairs (clause 6(1)) and internal working documents (clause 9(1)). The Ombudsman also considered whether some of the documents were exempt as documents subject to legal professional privilege (clause 10(1)). The Ombudsman found that communications with the RSPCA’s then in-house counsel were subject to legal professional privilege and therefore exempt. The Ombudsman also found that information that would or could identify the complainant constituted the complainant’s personal affairs. In concluding that it would be unreasonable to release such information, and it was therefore exempt, the Ombudsman had particular regard to the RSPCA’s reliance on members of the public making complaints so that it can investigate such concerns, and the likelihood that disclosure of such information would deter others from raising concerns in the future. The Ombudsman was not satisfied that the remaining documents/parts of documents were exempt as internal working documents, however. His decision turned on public interest considerations, particularly the public interest in openness and accountability, along with the ongoing relevance of the information to the applicant and information previously disclosed to, or provided by, the applicant. The Ombudsman varied the agency’s determination.
August 2017: Veterinary Surgeons Board of South Australia – Misconduct and maladministration by former Presiding Member
The Ombudsman received an ICAC referral raising allegation of misconduct and maladministration in public administration on the part of the former Presiding Member of the Veterinary Surgeons Board of South Australia. The Ombudsman found that the former Presiding Member directed more than $20,000 in payments to board members, including herself, which were not authorised at law or by relevant administrative instructions. The Ombudsman found that the former Presiding Member failure to ensure that the payments made at her direction were properly authorised, and failed to take appropriate action when the propriety of the payments was called into question by the board’s Registrar. The Ombudsman also found that the former Presiding Member submitted two expiation notices for payment in circumstances where it was wholly inappropriate to do so. The Ombudsman found that the former Presiding Member committed misconduct and maladministration in public administration with the meaning of the ICAC Act.
August 2017: Department of State Development
The applicant sought access to documents received by the agency from Alinta Energy during a specified time period. The agency identified two documents within the scope of the applicant’s request. The agency refused access to documents on the basis that they were exempt under a number of clauses, including clause 13(1)(a). The agency submitted that the documents were subject to a confidentiality agreement. The Ombudsman determined that while the existence of the confidentiality agreement was a relevant consideration, it could not be determinative as clause 13(1)(a) required all of the elements of an equitable breach of confidence to be present. The Ombudsman determined that the elements for breach of confidence were present and the documents were therefore exempt under clause 13(1)(a). The Ombudsman confirmed the agency’s determination.
July 2017: City of Marion – Misconduct in public administration
The Ombudsman received an ICAC referral alleging misconduct by the CEO who improperly influenced council staff in relation to withdrawing an expiation notice issued to a council resident. The Ombudsman found that the CEO did not appropriately deal with the application by the resident (who was assisted in his application by an elected member) because he did not follow the council’s procedure as stated on its website. The Ombudsman found that the CEO influenced the staff member to withdraw the expiation notice by including commentary on the request forwarded to the staff member who withdrew the expiation notice in 42 minutes. The Ombudsman found that the CEO breached clauses 2.2, 2.4 and 2.7 of the Code of Conduct for Council Employees and therefore committed misconduct in public administration. The Ombudsman recommended that all staff be reminded of the council’s procedure in dealing with applications of withdrawal of expiation notices, and that council staff record the grounds of the Expiation of Offences Act 1996 (SA) by which the expiation notice was withdrawn on the council database.
July 2017: Mount Barker District Council – Breach of council member code of conduct
As envisaged under Part 3 of the Code of Conduct for Council Members, the CEO of the Mount Barker District Council referred a complaint about a council member that the council considered were alleged breaches of Part 3 of the Code of Conduct. The CEO advised that the council would address the allegation of possible breaches of Part 2 of the Code of Conduct. In the complaint, the Part 3 allegations related to a public meeting of the council during which the council member divulged information that was subject to confidentiality and therefore a breach of Part 3 of the Code of Conduct. Due to speculation by parties about the identity of the complainant and that attempts by Ombudsman SA to contact the complainant, the Ombudsman determined that, on the basis of the information before him, the issues raised were sufficient for him to conduct an own initiative investigation pursuant to section 13(2) of the Ombudsman Act as a potential breach of Part 3 of the Code of Conduct.
In assessing the complaint it was established that the basis of the complaint to the council rested primarily upon the article that appeared in the Courier Newspaper in which the reporter considered that, during discussions about the agenda item, the council member disclosed information about the location of a proposed car park that was subject to confidentiality. The council member refuted the allegations and denied that she breached confidentiality in anything that she had said about the car park. At the time of printing the article, the reporter was not aware that there was information on the council website about possible locations for the car park that was not subject to confidentiality.
The Ombudsman considered submissions from the council and council member and on the basis of the Briginshaw standard, was not satisfied that she had disclosed information that was not already in the public domain. Therefore, the Ombudsman did not consider that the council member breached Part 3 of the Code of Conduct and did not act in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.
July 2017: Yorke Peninsula Council
The applicant sought access to legal advice received by the council in connection with its consideration of a development issue. The council identified nine documents within the scope of the applicant’s request. The council refused access to seven of these documents on the basis that they were exempt under clause 10(1) of Schedule 1 of the FOI Act. The council submitted that these documents were the subject of legal professional privilege. The Ombudsman determined that while each of the documents (but not their attachments) was originally the subject of legal professional privilege, the privilege attaching to five of the documents had been waived by the council’s decision to refer to the existence and effect of its legal advice in an earlier letter to the applicant. The Ombudsman determined that these five documents were not exempt under clause 10(1) and varied the agency’s determination accordingly.