Publications

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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Latest publications

March 2018: City of Onkaparinga – Misconduct and maladministration in public administration
The Ombudsman received an ICAC referral alleging misconduct and maladministration in public administration in relation to the management of a project concerning reform of the information and communication technology systems (the ICT Reform Project) of the City of Onkaparinga (the council).

It was alleged that the Elected Members had been encouraged to select a particular vendor without a competitive tender process and without efficiencies in the vendor’s product being demonstrated, despite the estimated costs being extremely high. It was also alleged that Mr Mark Dowd, Chief Executive of the council, has a background in Information Technology, was driving the ICT Reform Project and had misrepresented information in order to have procurement with the vendor approved. In undertaking this investigation, it was not the Ombudsman’s role to adjudicate or determine whether negotiations with the vendor should proceed.

Information provided to the Ombudsman demonstrated that the council administration had been researching ICT reform options since 2014 and that several external assessments had concluded that reform will result in a more effective and efficient system for the council. It became evident to the Ombudsman that a decision had not yet been made to enter into a procurement agreement with the vendor. Rather, the matter had been put to the Elected Members at a Special Council Meeting, where a resolution was made to enter into negotiations directly with the vendor on the basis that there was no other comparable vendor in the market offering a product suitable to the council’s needs.

The Ombudsman found that not holding a competitive tender process in this case did not amount to maladministration in public administration, for the following reasons:

  • a practice, policy or procedure of the council had not resulted in substantial mismanagement of public resources on the basis that:
  • the council’s Procurement Policy recognises there may be circumstances where a competitive tender process is not suitable and provides a process by which application of the Procurement Policy may be waived
  • although the projected costs are high, the council administration had undertaken sufficient research which had been provided to the Elected Members for their consideration
  • ultimately the Elected Members democratically considered and determined whether to proceed with negotiations with the vendor
  • the Elected Members still have the opportunity to make a final decision in relation to the actual procurement of the vendor’s product
  • given that no procurement had taken place and no public money had been expended on procurement, it was unnecessary for the Ombudsman to consider whether there had been an irregular or unauthorised use of public money
  • there was no indication that Mr Dowd’s conduct amounted to mismanagement or substantial mismanagement. The Ombudsman considered that Mr Dowd, in accordance with his obligations as Chief Executive, had ensured that extensive research had been undertaken so that the Elected Members were provided with sufficient information in order to make an informed decision.

Further, the Ombudsman found that Mr Dowd’s conduct did not amount to misconduct. Mr Dowd had complied with his obligations under the Employee Code of Conduct. The Ombudsman noted that Mr Dowd’s previous experience in the IT Industry may be beneficial to the council in relation to selecting an appropriate product and it did not appear that Mr Dowd had personal ties to the vendor company.

May 2018: ISG Audit Report – Assessing State Government Agencies’ Implementation of the Information Sharing Guidelines for Promoting Safety and Wellbeing
The ISG Audit Report represents a year long investigation into seven state government agencies’ efforts to deliver on a direction by State Cabinet regarding a key policy initiative aimed at protecting some of our most vulnerable citizens. The Information Sharing Guidelines for Promoting Safety and Wellbeing (ISG) defines a process for agencies to share information where there are current or anticipated threats to safety and wellbeing. The aim is that by agencies sharing information and working together at the first sign of risk, harm can be prevented.

The audit found agencies within the scope of the audit had failed to follow the direction issued by State Cabinet to implement the ISG, with the Department for Correctional Services efforts being “entirely inadequate”.  The report makes a number of recommendations for improvement and sets timeframes for agencies Chief Executives to report back to the Ombudsman on progress.

April 2018: University of Adelaide
The applicant sought access to documents relating to a misconduct investigation by the agency for which the applicant was the complainant.  The agency identified 60 documents within the scope of the access application.  It refused access to 7 documents and provided partial access to a further 7 documents, providing full access to the remaining 46 documents.  During the Ombudsman’s external review, he considered clause 9 (internal working documents), clause 10 (legal professional privilege), clause 6 (personal affairs) and clause 8 (documents relating to research).

The Ombudsman varied the agency’s determination, finding that some of the information in 8 of the 14 documents should be released.  In particular the Ombudsman considered the public interest in releasing documents related to research and the meaning of ‘legal advice’ as it applied to legal professional privilege.  The Ombudsman commented that the agency’s submissions were puzzling, given the agency strongly argued against releasing some of the information within the 14 documents, even though it had already released the information willingly within the other 46 documents which it released as per its original determination.

March 2018: Central Adelaide Local Health Network
The applicant sought access to contracts between the agency and St Andrews Hospital in relation to the use of the Da Vinci surgical robot located at St Andrews. The agency’s principal officer made a determination to extend the time for dealing with the application beyond the 30 day deadline on the basis that consultation with interested parties was required.

The Ombudsman noted that the applicant had not sought access to a large number of documents and the application did not necessitate a search through a large quantity of information. In fact only a single document fell within the scope of the application. The Ombudsman further commented that the agency would only have to consult with a single interested party, namely St Andrews Hospital.

On external review the Ombudsman was not satisfied that the determination to extend the time for dealing with the application was justified. It appeared that the determination had been made because the agency’s FOI officer had not been receiving satisfactory responses to her requests for information from agency staff. The Ombudsman observed that the applicant should not have to bear the delay caused by the agency’s internal management of his application and varied the agency’s determination.

March 2018: Department for Education and Child Development – Removal from Family Day Care register
The Ombudsman received a complaint from an educator who had been removed from the Department for Education and Child Development’s Family Day Care register.  The educator complained that the decision had been unreasonable and that procedural fairness had not been afforded.  The Ombudsman investigated and determined that the agency had failed to afford procedural fairness because there was an unreasonable delay in informing the educator of the allegations against her in writing, and the department had failed to inform that the complainant about one of the allegations which was found to be substantiated.

The Ombudsman recommended that the department provide a written apology to the educator and amend its policy to include time-frames in which the steps of an investigation should be undertaken, and a requirement that educators be informed of the nature of the allegations against them in as much detail as possible whilst not disclosing any confidential information.

March 2018: Kangaroo Island Council – Failure of council to assess complaint in accordance with Code of Conduct for Council Members Procedure
The complaint by Mr John Ayliffe alleged that media comments made by the Mayor of Kangaroo Island Council, Mr Peter Clements, constituted breaches of clauses 2.2-2.5, 2.6 and 2.8 of Part 2 of the Code of Conduct for Council Members (the Code of Conduct).

The Deputy Mayor of the council conducted an assessment of the complaint and then proposed mediation between Mr Ayliffe and Mayor Clements to resolve the matter.  Mr Ayliffe indicated that he was reluctant to attend a mediation session.  He suggested that he had suffered damage to his reputation.  The matter was then referred by council to the LGA Mutual Liability Association for their consideration.  The council later dismissed the complaint on the grounds that it was frivolous and/or vexatious.

In summary the Ombudsman found that:

  • the council’s procedure was not followed in that Mr Ayliffe declining the offer of informal resolution, the complaint should have been referred for independent investigation as required by the procedure.
  • If, as asserted by the council, the complaint was dismissed for being frivolous and/or vexatious Mr Ayliffe should have been given reasons for that assessment and an opportunity to respond before the final decision to dismiss was made (as required by principles of procedural fairness which the council procedure adopts).
  • Mr Ayliffe had clearly and appropriately outlined his complaint with reference to six provisions of the code and he was entitled to receive a more detailed explanation for it being dismissed than that there was no case to answer.

Recommendations
That within two months of the date of the final report, the council:

  1. Issue a public written apology to the complainant for the incorrect handling of his Code of Conduct complaint
  2. The council reconsider the assessment of the complaint and either provide Mr Ayliffe with proper reasons for it being dismissed or refer it for independent investigation

 

February 2018: Attorney-General
The applicant sought access to documents about any complaints made, or investigations conducted, in relation to himself. The agency identified eight documents within the scope of the access application. It refused access to five documents in full on the basis that they were subject to legal professional privilege (documents 1 to 3) or otherwise available (documents 4A and 4B), and one document in part because it contained personal affairs information (document 4C). The applicant did not pursue access to documents 4A and 4C. The Ombudsman was satisfied that documents 1 to 3 were exempt under clause 10(1), and that the agency was entitled to refuse access to document 4B (an ABN Lookup) under s20(1)(b) as it was available in accordance with a legislative instrument other than the FOI Act. Accordingly, the Ombudsman confirmed agency’s determination. That said, the Ombudsman commented that the agency did not appear justified in refusing access to document 4A (a court judgment), despite its availability online.

December 2017: Department for Correctional Services and Central Adelaide Local Health Network (South Australian Prison Health Service) – Wrongful placement and delay in providing medication

At the time of the complaint, the complainant was a remand prisoner. The complainant’s admission process occurred at Yatala Labour Prison, where he was assessed by both the Department for Correctional Services (DCS) and the South Australian Prison Health Service (SAPHS).  As a result, it was known to both agencies that the complainant is Aboriginal, has a history of self harm and attempted suicide and diagnosed depression for which he takes prescribed medication. The complainant was deemed to be a high risk prisoner and was then transferred to Holden Hill Police Cells. The complainant made his complaint to the Ombudsman on the fourth day when he still had not been provided his medication. The complainant explained that he was not coping with his placement at Holden Hill Police Cells and made threats of suicide.

The Ombudsman found that DCS had acted in a manner that was wrong within the meaning of section 25(1)(g) of the Ombudsman Act by accommodating the complainant at Holden Hill Police Cells and that the delay in SAPHS providing the complainant’s medication was in accordance with a  policy and practice that is unreasonable within the meaning of section 25(1)(c) of the Ombudsman Act. In undertaking the investigation it became apparent that DCS had failed to retain official records in accordance with the State Records Act and therefore the Ombudsman also found that DCS had acted in a manner that was contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act.

February 2018:  Department of the Premier and Cabinet
The applicant sought access to documents relating to job creation schemes funded by the SA Government. The agency identified two documents falling within the scope of the application and refused access to both on the basis that they were exempt documents, having been specifically prepared for submission to Cabinet or containing matter the disclosure of which would disclose information concerning any deliberation or decision of Cabinet.

On external review, the Ombudsman took the view that there were in fact 11 documents, four of which related to one Cabinet submission and the remainder of which related to another submission. The Ombudsman concluded that while the agency had justified its claim in relation to 10 of the documents, it had not done so in respect of the remaining document; this document consisted merely of statistical material and did not disclose information concerning a deliberation or decision of Cabinet.

February 2018:  District Council of Grant
The applicant sought access to all information pertaining to two specific addresses for the period 1 July 2013 to 1 April 2015.  The agency identified 67 documents falling within the scope of the applicant’s request.  The agency relied on section 20(1)(b) and clauses 6(1), 7(1)(a), 7(1)(b), 9(1)(a)(i) and 10(1) to refuse access to 61 documents, or parts thereof, while six documents were released in full.

The Ombudsman determined to vary the determination to enable greater access to documents. This determination primarily turned on the fact that much of the redacted information could easily be inferred by collectively considering other documents released to the applicant or publicly available.

The Ombudsman commented on the agency’s failure to sufficiently consult with interested parties given the amount of information it had determined to release and indicated that documents should be considered collectively when determining what may be released and refused. This ensures that what is refused in one instance is not inadvertently revealed elsewhere.

The Ombudsman also commented on a submission that FOI legislation should not be used to gain access to information about a development application when the Development Act 1993 itself did not require disclosure of the application.

January 2018:  Health and Community Services Complaints Commissioner – Mistake of law in assessing complaint
The Ombudsman received a complaint from a medical practitioner in respect of a determination by the Health and Community Services Complaints Commissioner under the Health and Community Services Complaints Act 2004.  The medical professional complained that the Commissioner determined to take no further action in respect of his complaint concerning a health provider, whom he alleged had attempted to procure an unlawful abortion for a patient and had unlawfully directed or incited him to facilitate the procedure.

The Ombudsman conduct an investigation and determined that the Commissioner’s determination to take no further action was based in part on a mistake of law within the meaning of section 25(1)(f) of the Ombudsman Act 1972.  In this regard, the Ombudsman determined the Commissioner had misdirected himself as to the standard of proof applicable under the HCSC Act.  The Ombudsman declined to set aside the determination of the Commissioner on the basis that he was not satisfied that the Commissioner would have reached a different determination had the Commissioner not misdirected himself.

January 2018:  TAFE SA – Maladministration in public administration
The Ombudsman received an ICAC referral alleging maladministration in public administration and substantial mismanagement of public resources in relation to a former director’s conduct in handling a staff misconduct complaint investigation and awarding a Total Voluntary Separation Package (TVSP). Whilst the former director had the complaint investigated internally by TAFE SA the Ombudsman’s view was that the former director’s conduct amounted to mismanagement in their official functions and duties because they:

  • did not provide the alleged perpetrator with all the evidence against them to properly answer the allegations
  • sought to terminate the employment of the alleged perpetrator without having complied with section 54(3) of the Public Sector Act 2009 (SA)
  • authorised converting the suspension with paid leave to suspension without pay without having sought legal advice as to whether TAFE SA had authority to do that
  • offered the alleged perpetrator a TVSP at a cost of $105,320.80 where the review of a restructure which would have seen the abolition of the alleged perpetrator’s role was put on hold and a TVSP would not normally have been offered in these circumstances
  • advised the alleged perpetrator of the intention to terminate their employment for misconduct then subsequently offered them a TVSP.

The Ombudsman determined that the former director’s mismanagement in their official functions and duties was substantial because:

  • of the significant cost of the TVSP
  • the significant errors throughout TAFE SA’s investigation of the staff misconduct complaint
  • a TVSP was offered despite the fact that the restructure was placed on hold at the time
  • the former director took action against the alleged perpetrator without legal advice despite the action having significant consequences for the employment of the alleged perpetrator
  • the handling of the matter put TAFE SA in a poor bargaining position with respect to the alleged perpetrator who had made some admissions to TAFE SA in relation to their conduct.

The Ombudsman’s view was that the former director committed maladministration in public administration for the purposes of section 5(4)(a)(i) of the ICAC Act. In light of the above circumstances the Ombudsman also considered  that there was a substantial mismanagement of public resources for the purposes of section 5(4)(a)(ii) of the ICAC Act. The Ombudsman declined to make recommendations because the former director is no longer employed by TAFE SA.

January 2018:  Improper section 51 clearance arranged by council employee – Maladministration/Misconduct
The Ombudsman found that an employee of council, council employee A, inappropriately arranged clearance under section 51 of the Development Act 1993 in relation to an application for subdivision lodged by council employee B.  Various conditions had been imposed on the application for subdivision by the council, and the effect of arranging section 51 clearance was that the council could then no longer pursue council employee B for non-compliance, or unsatisfactory compliance, with the conditions.

Council employee A was found by the Ombudsman to have breached clauses 2.2, 2.3 and 2.4 of Part 2 of the Code of Conduct for Council Employees, in addition to section 109 of the Local Government Act 1999, and therefore committed misconduct in public administration for the purposes of the Independent Commissioner Against Corruption Act 2012 (the ICAC Act).  It was also found that council employee A committed maladministration in public administration for the purposes of the ICAC Act.  The Ombudsman therefore found that council employee A acted contrary to law for the purposes of section 25(1)(a) of the Ombudsman Act, and recommended that the agency consider taking disciplinary action against the employee.

October 2017: Kangaroo Island Council – Breach of Whistleblowers Protection Act 1993
The Ombudsman received two complaints concerning the Kangaroo Island Council’s decision to disclose information concerning a confidential complaint about the council’s Chief Executive Officer.  It was submitted that information published by the council about that complaint had the effect of disclosing the identity of a whistleblower, contrary to the provisions of the Whistleblowers Protection Act.  The Ombudsman conducted an investigation and determined that the complaint concerning the council’s Chief Executive Officer amounted to an ‘appropriate disclosure of public interest information’ for the purposes of the Whistleblowers Protection Act.  The Ombudsman found the council’s disclosure of the complainant’s identity absent their consent contravened section 7(1) of the Whistleblowers Protection Act and was accordingly contrary to law within the meaning of section 25(1)(a) of the Ombudsman Act.  The Ombudsman recommended that the council apologise to the complainant and take appropriate action to remove reference to the complainant’s identity in its public documents.  The Ombudsman further recommended that the council revise its policies to better reflect the operation of the Whistleblowers Protection Act.

January 2018:  City of Adelaide
The applicant sought access to documents relating to any certificate issued by the agency under the Expiation of Offences Act 1996. Section 13 of that Act requires agencies that issue expiation notices to provide certificates to the Fines Enforcement and Recovery Officer if they wish that officer to take action to enforce payment of fines.

The agency refused to deal with the application on the basis that it was part of a pattern of conduct that amounted to an abuse of the right of access or was made for a purpose other than to obtain access to information. On external review the Ombudsman confirmed the agency’s determination and concluded that it was reasonable for the agency to have formed this opinion. In reaching this conclusion the Ombudsman took into account the fact that the application was the 15th made by the applicant to the agency in a period of 13 months; each of the 15 applications constituted requests for access to documents relating to the enforcement of a single parking fine issued to the applicant by the agency; 10 of the 15 applications constituted requests for access to documents relating to the certificate provided to the Fines Enforcement and Recovery Officer; and that the requests appear to have been intended to assist the applicant to establish that the Fines Enforcement and Recovery Officer had been taking enforcement action against expiation notice recipients without requiring agencies to comply with section 13 of the Expiation of Offences Act.

October 2017:  City of Victor Harbor – Disclosure of confidential information – Cr Peter Charles
The Ombudsman received an ICAC referral alleging misconduct in public administration by an elected member who disclosed confidential information included within a special council meeting agenda prior to the meeting being convened.  The Ombudsman found that the elected member should reasonably have known that the information was confidential and by disclosing it he breached clauses 3.2 and 3.3 of the Code of Conduct for Council Members and therefore committed misconduct in public administration within the meaning of section 5(3) of the ICAC Act.  The Ombudsman recommended that the elected member 1) undertake training relevant to confidentiality provisions and 2) issue a public apology to the council in relation to the disclosure of the confidential information.

January 2018:  Department of Planning, Transport and Infrastructure
The applicant sought access to documents concerning the discussion of toll roads and road user charging held by the Department of Planning, Transport and Infrastructure.  The agency submitted that documents falling within the scope of the applicant’s request were variously exempt under clauses 1(1), 3, 5 and 9 of the FOI Act.

The Ombudsman considered the agency’s submissions at external review and determined to vary the agency’s determination so as to release one document in full and four documents in part to the applicant.  In his determination the Ombudsman weighed, among other things, the public interest in the community being able to meaningfully contribute to debate on matters of general public concern with the public interest in ensuring confidence and trust between state and federal governments.

December 2017: Adelaide Hills Council
The applicant sought access to the number of property inspections undertaken and number of notices issued by the council, broken down by postcode, in relation to fire safety form July 2014 to June 2015.  The agency made a decision to deal with the application, relying on section 18(1) of the FOI Act.  The agency considered that dealing with the application would substantially and unreasonably divert the agency’s resources from their use by the agency of its functions.  The Ombudsman determined that the agency had misinterpreted the application for access and had considered a large number of documents to be within the scope of the application (specifically, documents relating to each property inspection and a copy of each of the notices issued).  The Ombudsman determined that the application seeks only the number of these documents, not the documents themselves.  Further, due to section 4 of the FOI Act, the agency was taken to hold a document which lists these numbers, even though that information is stored electronically.  The Ombudsman also determined that the agency was prohibited from relying on section 18(1) of the FOI Act as the agency had not taken reasonable steps to assist the applicant to amend his application such that it would not be an unreasonable diversion of the agency’s resources.  The Ombudsman therefore reversed the agency’s determination.

December 2017: City of Mount Gambier – Failure to disclose business interests – Mayor Andrew Lee
The Ombudsman received an ICAC referral about allegations involving the conduct of Mayor Andrew Lee of the City of Mount Gambier relating to his involvement in a State-funded trip to China and his subsequent acquisition of an interest in a South Australian winery.  The matter was subject of an article in the Advertiser on 30 January 2017, since which time it has attracted significant attention.  There were two allegations that were investigated.  First of misconduct by Mayor Lee in conducting personal business while representing the council when attending the Shandong business delegation in China in 2016.  The Ombudsman found no evidence of personal business being conducted; therefore, there was no finding of misconduct.  The second allegation concerned Mayor Lee’s use of his mayoral position to gain a personal benefit by acquiring shares in the Rymill Coonawarra winery.  The Ombudsman found no evidence of inappropriate use of mayoral position in the acquisition; therefore, there was not finding of misconduct.

June 2017:  TAFE SA – Wrongful failure by the TAFE SA Board to keep records
The Ombudsman received an ICAC referral following an Ombudsman report to him from an FOI review. The referral raised the possibility that TAFE SA, the TAFE SA Board or the Chair committed misconduct or maladministration in public administration by failing to keep accurate records of its proceedings in December 2014. The Ombudsman formed the view that the TAFE SA Board is not a public authority for the purposes of section 5(4) of the ICAC Act; therefore it is not subject to a finding of misconduct or maladministration. Further, neither the Chair of the TAFE SA Board nor TAFE SA committed misconduct or maladministration in public administration within the meaning of sections 5(3) and 5(4) of the ICAC Act.

The investigation also examined the possibility that TAFE SA committed an act that was unlawful, unreasonable or wrong under the Ombudsman Act 1972 by failing to keep accurate records of its proceedings in December 2014.

The Ombudsman’s opinion is that the agency, in failing to record decisions or deliberations relating to the abolition of a senior Executive position and the termination of Mr A’s appointment in December 2014, acted in a manner that was wrong for the purposes of section 25(1)(g) of the Ombudsman Act. The Ombudsman recommended that: 1) TAFE SA review its Board of Directors Meeting Procedures and Protocols and Information Management – Creation and Capture of Official Records policy and amend them to provide guidance as to the circumstances under which in camera sessions will be held and when discussions and decisions will be documented in separate minutes, and 2) that the revised policies include a requirement that any decision or deliberation must be documented as a formal record as per relevant legislation.

December 2017:  City of Unley – Misconduct in public administration breach of confidentiality – Cr Bob Schnell
The Ombudsman received an ICAC referral alleging misconduct in public administration by an elected member who it alleged improperly revealed confidential information to a journalist.  The Ombudsman found that all elected members and some council staff had received a legal briefing from solicitors Kelledy Jones in relation to a planned Development Plan Amendment and that the elected member had contacted the journalist and revealed the information.  The Ombudsman found that the elected member ought reasonably known the information was confidential because it was legal advice and discussed personal details of elected members by name and whether each should declare a conflict of interest.  The Ombudsman found that the elected member breached clause 3.3 of Part 3 of the Code of Conduct for Council Members and on that basis committed misconduct in public administration for the purposes of section 5(3)(a) of the ICAC Act, and the provisions of section 63(2) of the Local Government Act which requires compliance with the Code of Conduct for Council Members.  The Ombudsman recommended that the elected member 1) undertake training in respect of confidentiality 2) apologise to the council in person at a council meeting for disclosing confidential information and 3) be reprimanded by the council by means of a public statement.

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
Subject to review by the South Australian Civil and Administrative Tribunal

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
Redacted Annexure

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.