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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July 2018: Adelaide Hills Council – Breach of council member code of conduct
A complaint was received from the Adelaide Hills Council that one of its elected members may have breached clauses 3.2 and/or 3.4 of the Code of Conduct for Elected Members by not following its Records Information Management Policy in relation to dealing with an email. Upon investigation it was discovered that part of the email was missing from the original email and that council therefore only had a partial record. I determined that, whether inadvertent or deliberate, there had been a lack of care and diligence by the elected member who had therefore breached clause 3.2 of the Code. I recommended the elected member receive training in the requirements of the State Records Act 1997 (SA) and council’s Records Information Management Policy. However, I declined to investigate breaches of clause 3.4 of the Code because I did not consider that the elected member was attempting to authorise or perform, or purport to exercise or perform, a power, duty or function that he was not entitled to exercise as an elected member.
August 2018: City of Victor Harbor – Failure to declare a conflict of interest
The Ombudsman investigated whether Cr Peter Charles failed to appropriately declare and deal with a conflict of interest when a previous report by the Ombudsman was received and considered by the council. While Cr Charles ultimately left the chamber while three of four recommendations were considered, he was present when the first recommendation was considered and voted to received the report.
The Ombudsman considered that while Cr Charles did not have a material or actual conflict of interest, he had a perceived conflict of interest given that an impartial, fair-minded person could reasonably perceive that he had a conflict of interest given that:
- the subject matter of the final report related to him
- the report made findings about his conduct
- the report made recommendations that required him to take particular action.
The Ombudsman considered that Cr Charles should have informed the meeting of his interest and should have stated why he thought it appropriate for him to remain in the chamber and vote on the matter.
The Ombudsman considered that Cr Charles breached the conflict of interest provisions of the Local Government Act and Part 3 of the Code of Conduct and acted in a manner that was contrary to law for the purposes of the Ombudsman Act. The Ombudsman recommended that the council require Cr Charles to attend training relevant to the conflict of interest provisions.
August 2018: City of Onkaparinga
The applicant sought access to documents relating to the agency’s Fringe Benefits Tax returns over a three year period. The agency provided access to one document in full and provided partial access to the remaining documents. The agency relied upon various exemption clauses, including clause 16 of Schedule 1 to the FOI Act, which deals with documents concerning the operations of agencies. The majority of the redacted information related to the agency’s employees, including their names, position descriptions and team identifiers. However, the agency also redacted information related to car services and businesses.
On external review, the Ombudsman accepted the agency’s submissions that release of the employee’s details could reasonably be expected to have a substantial adverse impact on the management by the agency of its personnel. The Ombudsman also determined that release of the employee’s details would be contrary to the public interest, noting in particular that the FOI Act is concerned with transparency and accountability of the agency as a whole and that by releasing most of the information relating to the Fringe Benefits Tax, the agency had already substantially promoted transparency and accountability. The Ombudsman concluded that to release the names and details of individual employees would likely cause detriment to those employees and would affect the agency as a whole, whilst not meaningfully furthering the objects of the FOI Act. However, the Ombudsman varied the agency’s determination to release the information related to car services and businesses.
August 2018: SA Police
The applicant sought access to documents relating to a police attendance at his property. The agency refused access to any such documents on the basis that disclosure of the same would constitute an offence against the Police Complaints and Discipline Act 2016 (the PCD Act). The agency determined that the documents were therefore exempt under clause 12(1) of the FOI Act. This clause states that a document is exempt if it contains matter the disclosure of which would constitute an offence against an Act.
On external review the Ombudsman confirmed the agency’s determination. The Ombudsman accepted the agency’s advice that a complaint had been made about the police attendance at the property and that that complaint had been made under the PCD Act. Section 45(3) of that Act states that a person who receives information knowing that information is connected with a matter that forms or is the subject of a complaint under the PCD Act must not disclose that information and prescribes a maximum penalty of $2,500 or six months imprisonment for such a disclosure. Had the agency’s FOI officers disclosed the documents to which the applicant was seeking access, they would have committed an offence under section 45(3). The information in those documents was therefore exempt pursuant to clause 12(1).
August 2018: Yorke Peninsula Council – Breach of council member code of conduct
The Ombudsman received a complaint from the Yorke Peninsula Council that Councillor Stock had failed to comply with a finding of inappropriate behaviour by an independent investigator that had found Cr Stock to be in breach of the Code of Conduct for Council Members.
The original complaint was made by Deputy Mayor Hoyle about Cr Stock’s conduct at a meeting on 15 April 2017. Deputy Mayor Hoyle alleged that Cr Stock may have breached six clauses of the Code of Conduct. The complaint was investigated by EMA Legal who determined that Cr Stock had breached two clauses of the Code of Conduct by failing to act in a way that generates community trust and confidence in the council and failing to endeavour to maintain a respectful relationship with all councillors. EMA Legal recommended that Cr Stock make a public apology to the Council. The Council accepted the report of EMA Legal at the Council meeting on 14 February 2018 and a motion was passed requiring Cr Stock to apologise. Cr Stock advised the Council via her lawyers that she did not intend to apologise and did not believe she was required to.
The Council therefore referred the matter to the Ombudsman for investigation. The Council also indicated that Cr Stock may have further breached the Code of Conduct by divulging confidential information at a Council meeting.
Clause 3.18 of the Code of Conduct states that ‘a failure to comply with a finding of inappropriate behaviour (by the Council, independent investigator or Ombudsman) under Part 2 is also grounds for a complaint under this Part’ . In my view, by refusing to apologise, Cr Stock had failed to comply with the finding of inappropriate behaviour that had been made by EMA Legal. Cr Stock had also failed to comply with clause 2.6 of the Code of Conduct by failing to comply with the council resolution requiring her to apologise. Cr Stock had therefore breached the Local Government Act by failing to observe the Code of Conduct.
I also investigated whether Cr Stock divulged confidential information at a Council meeting in breach of clause 3.3 of the Code of Conduct. In my view, while Cr Stock could have exercised greater discretion, I do not consider that she divulged confidential information.
I recommended that the Council issue a reprimand to Cr Stock for breaching clause 3.18 of the Code of Conduct.
May 2018: Kangaroo Island Council – Breach of council member code of conduct
Mayor Clements of the Kangaroo Island Council referred to the Ombudsman a complaint he received from Cr Liu in which it was alleged that Cr Willson failed to declare a conflict of interest for agenda item 13.2 at the council meeting on 14 February 2017. Cr Liu submits that Cr Willson has an interest in a property in the vicinity of the proposed road upgrade for agenda item 13.2 that she failed to declare before participating and voting on the matter. The Ombudsman’s investigation found that Cr Willson failed to declare her interest and concluded that it was beyond dispute that if the road upgrade were to be undertaken the result would be beneficial in terms of improving drainage, driveability and safety of the road however, the wording of the motion did not guarantee that the upgrade would proceed. However, given that the wording was ‘high priority’, it was probable at the time that it would go ahead however, it was possible that the project was only a priority amongst others. Therefore on that basis the Ombudsman found that Cr Willson did not have a material conflict of interest in relation to agenda item 13.2. The Ombudsman’s investigation found that Cr Willson was found to have had an indirect, personal interest in the agenda item and that because of her property interest, Cr Willson’s interest met the substantial proportion test and that that interest was in conflict to the public’s interest. On that basis, the Ombudsman considered Cr Willson to have had an actual conflict of interest in agenda item 13.2. In regards to the perceived conflict of interest, the Ombudsman considered all facts of the matter and concluded that an impartial, fair-mined person apprised of the facts could reasonably take that Cr Willson had an actual conflict of interest and therefore a perceived conflict of interest in agenda item 13.12. The Ombudsman considered therefore that in failing inform the meeting of her interests in agenda item 13.2, Cr Willson did not comply with section 75A(1) of the Local Government Act and deal with that interest in accordance with section 75A(2) of the Local Government Act. The Ombudsman’s view was that Cr Willson breached the provisions of section 75A of the Local Government Act and Clause 3.13 of Part 3 of the Code of Conduct and thereby acted in a manner that was unlawful within the meaning of section 25(1)(a) of the Ombudsman Act.
July 2018: Northern Adelaide Local Health Network
The applicant sought access to documents relating to the establishment of a High Dependency Unit at the Modbury Hospital. The agency’s principal officer extended the time for dealing with the application beyond the 30 day deadline, on the basis that 2,225 documents had been generated during the relevant period, and as a result, dealing with the application within 30 days would unreasonably divert the agency’s resources from their use by the agency in the exercise of its functions.
While the Ombudsman noted that the agency held a large number of documents, which had been generated during the relevant period, the agency had conceded that it would not be necessary to search through all those documents to determine whether they fell within the scope of the application. The Ombudsman further noted that application was for access to documents generated over a relatively short period, being approximately two months, and that the application was for documents concerning a single subject matter. It was reasonable to expect that the agency would keep electronic records of the documents it held and that those records could be electronically searched. As such, on external review, the Ombudsman was not satisfied that the determination to extend the time for dealing with the application was justified. While the Ombudsman accepted that the agency had received a large number of access applications during the preceding months and appreciated that it might be operating under resource constraints, the applicant should not have to bear the delay caused by this. Section 14A of the FOI Act does not permit an agency to extend the time for dealing with a particular application on the basis that it lacks sufficient resources to process the number of access applications it receives.
July 2018: Department for Child Protection – Failure to address concerns regarding assessment of notifications
The Ombudsman received a complaint concerning the Department for Child Protection’s alleged failure to respond to concerns raised in respect of the safety and wellbeing of the complainant’s two children. The Ombudsman conducted an investigation and determined that between 2015 and 2017 the department received approximately nine notifications raising allegations of neglect and inappropriate discipline within the father’s home, all of which had been screened-out by the department as not meriting a child protection response. The Ombudsman observed that the agency’s files disclosed a discernible rationale for its assessment of the notifications, however this appeared never to have been communicated to the complainant. The Ombudsman formed the view that the department erred in omitting to address the complainant’s concerns regarding its assessment of the notifications when responding to a complaint made to the agency’s Complaints Unit. The Ombudsman recommended that the department write to the complainant to provide further information concerning its assessment practices and its cumulative assessment of the notifications.
April 2018: Town of Gawler – Breach of council member code of conduct
In accordance with clause 2.15 of the Code of Conduct for Council Members, Cr Koch of the Town of Gawler made a complaint to my Office about a potential Part 3 breach of the Code of Conduct by Cr Vallelonga. It is noted that a failure by a council member to report an alleged breach of Part 3 of the Code of Conduct may in itself represent a breach of Part 3 (Behavioural Code). Cr Koch alleged that at the council meeting on 28 February 2017, Cr Vallelonga failed to declare a conflict of interest in a matter before the council. It was alleged that Cr Vallelonga had business and property interests in the vicinity of the proposed project that he failed to declare before participating and voting thereafter on the matter. Although Cr Vallelonga later sought to re-phrase his comment in the local Bunyip newspaper, It is alleged that during discussions on the matter, Cr Vallelonga was heard to have said ‘this is a detriment to our business. My investigation found that after prompting by the council Mayor, Cr Vallelonga declared a perceived conflict of interest in the matter and stated that he would deal with that conflict by remaining in the meeting and participate in discussions on the matter. In conducting his investigation the Ombudsman found that potential impacts (loss or benefit) upon his business was at best speculative and that this was insufficient to conclude that he had a material conflict of interest in the matter. In regards to an actual conflict of interest, the Ombudsman was satisfied that Cr Vallelonga had an indirect pecuniary interest in the matter and that the removal of the left slip lane and construction thereof, could impact upon his business. The Ombudsman concluded that Cr Vallelonga’s narrow interest in the matter conflicted with those of the broader community. The Ombudsman was satisfied that Cr Vallelonga had an actual and perceived conflict of interest in agenda item 8.5 and therefore breached section 75A(2) of the Local Government Act by failing to act in a transparent and accountable manner as required by section 75A(1) of the Local Government Act. The Ombudsman formed a view that in failing to comply with the conflict of interest provisions under the Local Government Act, Cr Vallelonga breached Clause 3.13 of the Code of Conduct. The Ombudsman recommended that Cr Vallelonga issue a public apology to the council and undertake training in relation to conflicts of interest.
July 2018: District Council of Coober Pedy, Department of State Development and Minister for Mineral Resources and Energy — Coober Pedy Power Purchase Agreement
The Ombudsman received two referrals from the Independent Commissioner Against Corruption concerning alleged maladministration in public administration by the District Council of Coober Pedy, the Department of State Development and the former Minister for Mineral Resources and Energy, the Hon Tom Koutsantonis MP.
The Ombudsman’s investigation concerned the decision of the District Council of Coober Pedy to enter into a $198 million Power Purchase Agreement with a private supplier, Energy Generation Pty Ltd, in the absence of a competitive tender process, as well as certain actions of the Department of State Development and the former Minister for Mineral Resources and Energy that had the effect of subsidising the council in respect of its obligations under the agreement.
As a result of the investigation, the Ombudsman formed the view that the District Council of Coober Pedy committed maladministration in public administration through its negotiation and execution of the Power Purchase Agreement. The Ombudsman invited the Minister for Transport, Infrastructure and Local Government to consider taking action under the Local Government Act 1999 in respect of the council. The Ombudsman also formed the view that the Department of State Development and Mr Koutsantonis did not commit maladministration in public administration through their involvement in the project. However, the Ombudsman determined that the department erred in omitting to brief the former Minister in respect of certain matters. The Ombudsman recommended that the newly-created Department for Energy and Mining revise its briefing template to address this error.
Addendum: Addendum to the Ombudsman’s final report relating to an investigation into the District Council of Coober Pedy, the Department of State Development and the former Minister for Mineral Resources and Energy – July 2018
July 2018: Department of Planning, Transport and Infrastructure
The applicant requested documents relating to the evaluation of a proposal his company, Ebor Computing Pty Ltd, submitted in August 2017 in response to a tender that was advertised by the Department of Planning, Transport and Infrastructure (the department). The department determined there were three documents within the scope of the applicant’s request, and refused access to two documents relating to the evaluation process. The documents contained information relating to the evaluation of all proposals that were submitted in response to the tender.
During the external review process, the Ombudsman sought clarification from the applicant in regard to the scope of his request, in particular, whether he was seeking information relating to the evaluation of other proposals. The applicant confirmed he did not seek access to this information. As a result, the Ombudsman limited his consideration of the agency’s determination to information specifically relating to Ebor Consulting’s proposal, and commented that the agency could have avoided unnecessary consideration of information that the applicant did not wish to access. The Ombudsman also commented that the agency had failed to turn their mind to their obligation under section 20(4) of the FOI Act to give partial access to a document where it is appropriate to do so, noting that the agency had given access to information in one document that was identical to information contained within another document where access was refused in full.
July 2018: District Council of Robe – Breach of council member code of conduct
The Ombudsman received a complaint from the District Council of Robe that Cr Loxton had failed to comply with a finding of inappropriate behaviour by an independent investigator that had found Cr Loxton to be in breach of the Code of Conduct for Council Members. The independent investigator, EMA Legal, had investigated Cr Loxton’s conduct at the Council meeting on 13 June 2017 and determined that Cr Loxton had failed to act in a way that generates community trust and confidence in the Council; failed to show respect for others if making comments publicly; and failed to endeavour to establish and maintain a respectful relationship with all other Council members. In its report, EMA Legal recommended that Cr Loxton be required to apologise to the Mayor.
The Council accepted the report of EMA Legal at its meeting of 9 January 2018 and a motion was passed requiring Cr Loxton to apologise. At the Council meeting on 30 March 2018, Cr Loxton was provided with the opportunity to apologise. Cr Loxton advised the Council that he refused to make an apology to the Mayor. The Council therefore referred the matter to me for investigation.
Clause 3.18 of the Code of Conduct states that “a failure to comply with a finding of inappropriate behaviour (by the Council, independent investigator or Ombudsman) under Part 2 is also grounds for a complaint under this Part”. In my view, by refusing to apologise, Cr Loxton had failed to comply with the finding of inappropriate behaviour that had been made by EMA Legal. Cr Loxton had therefore breached the Local Government Act 1999 by failing to observe the Code of Conduct. I recommended that the Council issue a reprimand to Cr Loxton.
April 2018: SA Police
The applicant sought access to the first ten incidents from 1 January 2016 which involved taser footage including the corresponding incident reports. The agency identified 20 documents within scope of the applicant’s request, ten being taser footage and ten being corresponding incident reports.
Clauses 4(2)(a)(iii), 4(2)(a)(iv), 4(2)(a)(vi), 4(2)(b), 6(1), 6(2), 6(3a), 11(b), 16(1)(a)(iv) and 16(1)(b) of Schedule 1 to the FOI Act were relied upon by the agency. Access to all footage and two incident reports, which related to matters that were still pending before a Court, were refused entirely by the agency. The remaining incident reports were partially redacted to remove names, addresses, dates of birth and other similar personal details of third parties.
During the external review the agency withdrew its reliance on clause 11 as the related court matters had finalised by that stage. The applicant also confirmed that the eight partially released incident reports could be excluded from the external review. As a result ten taser footage documents and two incident reports remained in issue.
The Ombudsman formed the view that clauses 4 and 16 did not apply because the documents did not reveal anything that was not already known or assumed by the general population; therefore, disclosure could not reasonably be expected to have any adverse effect on law enforcement or public safety. The Ombudsman conceded with the agency that clause 6 applied quite broadly because any third party’s involvement in such an incident, whether as a victim, the accused or a witness, should be regarded as incidents of private concern to those individuals. However, the Ombudsman’s view was that where documents could be sufficiently redacted to ensure that it would not be possible to identify third parties, and the remaining information was something the applicant would still wish to have access to, they should be redacted and released in that form. The Ombudsman varied the agency’s determination such that six documents were refused entirely and the remaining six documents could be partially released following extensive redactions to all personal details, visual images that might tend to identify an individual (including images of a person’s property), and audio that might tend to identify an individual.
June 2018: Department for Correctional Services – Failure to amend record of gender
The Ombudsman investigated a complaint by a transgender prisoner, Ms Krista Richards (the complainant), that the Department for Correctional Services (the department) had failed to amend its records to reflect that she identifies as a female, resulting in a delay in her transfer to the Adelaide Women’s Prison (AWP). The complainant also raised concerns that the department had failed to amend the name on her cell door to reflect her chosen name. The Ombudsman’s view was that there were no proper grounds for the department’s refusal to amend its records and identify the complainant by her chosen name, and that it had been aware of these issues as early as 2015 yet failed to take steps to address them until after it had been notified of the investigation in September 2017. The Ombudsman did not, however, consider that the department had unreasonably delayed the complainant’s transfer to AWP. The department accepted the Ombudsman’s provisional recommendations prior to the finalisation of the investigation.
June 2018: Audit Survey Report – Assessment of state agencies’ complaints management systems
The Audit Survey Report documents the progress made by 13 key state government departments in developing their complaint management systems (CMS).
The report identified some improvements as well as some deficiencies in the CMS. Three recommendations were made: the renewal of the DPC Circular PC039 – Complaint Management in the South Australian Public Sector (including adherence to the Australian Standard on complaint management), improved complaint management and access for disadvantaged and vulnerable people and the development of departmental Strategic Planning goals to deliver service improvements linked to complaints.
June 2018: City of Victor Harbor – Misconduct in public administration
The Ombudsman received an ICAC referral alleging misconduct in public administration in relation to the conduct of two of its elected members.
It was alleged that Crs Andrews and Charles had misled the public by posting and commenting a ‘media release’ that Cr Andrews had drafted. The ‘media release’ informed the general public that the council had resolved to close the Whale Centre, which was untrue. I concluded that Crs Andrews and Charles breached clauses 2.5, 2.7 and 2.8 of the Code of Conduct for Elected Members because the ‘media release’ did not indicate that it was Cr Andrews’ private view that the Whale Centre would be closed but instead stated that the council voted to close the Whale Centre by discontinuing its funding, the ‘media release’ was not a ‘media release’ at all, the information conveyed to the media was wrong, they did not deal with the information in a responsible manner, nor did they endeavour to provide accurate information to the public.
It was additionally alleged that Cr Andrews used his council signature block on personal emails was in breach of clauses 2.5, 2.7, 2.8, 3.1 and/or 3.2 of the Code of Conduct for Elected Members. The personal emails were sent to government agencies in relation to the Granite Island Sculpture Park, a personal project of Crs Andrews and Charles. I did not consider that Cr Andrews had breached clauses 3.1 or 3.2 of the Code of Conduct for Elected Members because he was not acting in the performance of his official functions and duties when emailing government employees or promoting the launch of the Granite Island Sculpture Park. I did not consider that Cr Andrews had breached clauses 2.5, 2.7 or 2.8 of the Code because describing himself as a councillor in the emails were not inaccurate, the email content did not indicate a particular view or deal with information irresponsibly.
It was therefore determined that Crs Andrews and Charles breached section 63 of the Local Government Act and clauses 2.5, 2.7 and 2.8 of the Code of Conduct for Elected Members and on that basis committed misconduct in public administration for the purposes of section 5(3)(a) of the ICAC Act. I recommended that Cr Andrews and Charles offer a public apology and that Cr Andrews undertakes training in elected member responsibilities particularly how relationships with external parties, including media ought to be conducted.
May 2018: Department for Education
The applicant, an employee of the agency, sought access to documents concerning complaints from other employees concerning him, panel reports for teaching positions he had applied for and documents concerning psychological tests conducted by the agency. The agency released 16 documents in full, 20 in redacted form and refused access to four documents falling within the scope of the application. In refusing access, the agency relied on clauses 6(1) (personal affairs) and 16(1)(a)(i) and (ii) (operation of agencies) of Schedule 1 to the FOI Act.
On external review the Ombudsman confirmed the agency’s determination. The Ombudsman considered when information will be characterised as concerning other people’s personal affairs and the factors that are to be taken into account when determining whether it would be unreasonable for that information to be disclosed.
In relation to the psychological test information, the Ombudsman concluded that to release information that reveals the content of tests, or the assessment method for tests, would prejudice the effectiveness of those tests. The Ombudsman acknowledged that there is a public interest in persons who are subject to tests having access to information to promote accountability of the process, however the overwhelming public interest is in maintaining the integrity of tests designed to assess the suitability of persons to work with children.
April 2018: Public Trustee – Unreasonable management of finances
The Public Trustee was appointed the administrator of [X]’s affairs in 2015. The Ombudsman found that between 1 March 2016 – 10 October 2017, the Public Trustee had unreasonably failed to cancel a lease on a unit that the Office of the Public Advocate had determined [X] was not capable of returning to. As a result of the Public Trustee’s actions, [X] had been paying for both the lease in addition to nursing home accommodation for a period of almost two years. The Ombudsman recommended that the Public Trustee reimburse [X] for the payments made on the lease between 1 April 2016 – 10 October 2017. On 30 April 2018, the Public Trustee repaid [X] a total of $9,601.68.
May 2018: Flinders University
The applicant sought access to documents containing feedback provided to the agency in relation to a particular change proposal. The agency refused access to all documents falling within the scope of the application in reliance on various exemption clauses, including clause 13(1)(b) of Schedule 1 to the FOI Act, which deals with documents containing confidential information.
On external review the Ombudsman confirmed the agency’s determination. In doing so, the Ombudsman concluded that the documents contained matter obtained in confidence and that their disclosure (i) might reasonably be expected to prejudice the future supply of similar information to the agency and (ii) would, on balance, be contrary to the public interest. In reaching this view, the Ombudsman noted that, when inviting feedback, the agency had assured stakeholders that their responses would remain confidential. He also took the view that, should stakeholders form the view that any future feedback they might give would be disclosed under the FOI Act, they would be unlikely to provide such feedback. This would be contrary to the public interest in ensuring that the agency’s strategic planning and decision-making functions were as sound as practicable.
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.
That within two months of the date of the final report, the council:
- Issue a public written apology to the complainant for the incorrect handling of his Code of Conduct complaint
- 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.
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.
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.