Read a selection of the Ombudsman’s Freedom of Information external review determinations.

These determinations show the types of external reviews regularly conducted by the Ombudsman, and provide insight into the Ombudsman’s interpretation of the Freedom of Information Act 1991.

Adelaide Hills Council (2017/09234)

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 from July 2014 to June 2015. The agency made a determination refusing 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.

Central Adelaide Local Health Network (2016/08100)

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 of 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 been satisfied. When considering the public interest, the Ombudsman considered the 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. This determination is subject to review by SACAT.

Department of Planning, Transport and Infrastructure (2016/08734)

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.

Adelaide City Council (2017/05525)

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 lacked 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.

Department of State Development (2017/05319)

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 the 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 the 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, with the elements of the clause satisfied, the Ombudsman had no power to determine that access should be given. However, 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 the 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.

Minister for Transport and Infrastructure (2017/05339)Summary

Department of State Development (formerly the Department of the Premier and Cabinet (2017/00990)

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.

Attorney-General (2016/09259)Summary
Department of State Development (2017/05526)

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.

Minister for Sustainability, Environment and Conservation (2017/00863)

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 focussed 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.

Department of State Development (2017/02620)

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 the 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.

Department of State Development (2016/04164)

The applicant sought documents about the mineral lease application for the Kookaburra Gully Graphite Project, including inter-agency correspondence. The agency claimed various documents exempt as documents affecting personal affairs (clause 6(1)); documents affecting business affairs (clauses 7(1)(b) and 7(1)(c)); internal working documents (clause 9(1)); documents subject to legal professional privilege (clause 10(1)); documents containing confidential material (clauses 13(1)(a) and 13(1)(b)); and documents concerning operations of agencies (clause 16(1)). The Ombudsman’s determination turned on public interest considerations. The Ombudsman varied the determination to enable the documents to be released, after redacting legal advice or information that would reveal legal advice.

Department of Planning, Transport and Infrastructure (2016/07112)No summary available.
TAFE SA (2016/07951)

The applicant sought access to minutes and agendas of TAFE SA Board meetings, and access to those documents was refused by the agency in full. The Ombudsman considered whether the following exemption causes under the Freedom of Information Act 1991 (the FOI Act) applied to those documents: Clause 1(1)(e), Clause 2(1)(e), Clause 4(2)(a)(vi), Clause 5(1), Clause 6(1), Clause 6(2), Clause 7(1)(c), Clause 10(1) and Clause 16(1)(iv) - (v). Clause 1(1)(e) was considered in significant detail, and the Ombudsman highlighted that this clause has a specific purpose under the FOI Act, in that it is intended to protect the so called ‘Cabinet oyster’. It is not intended to apply to all documents submitted to Cabinet. The agency’s determination was varied by the Ombudsman, and it was proposed that the documents be released, with the exception of information within certain documents that was considered exempt under Clause 1(1)(e), Clause 6(1) and Clause 10(1).

Attorney-General's Department and Department of the Premier and Cabinet (2015/08536; 2015/09132)

The agencies refused access to documents in relation to a review by the Internal Consultancy Services Group of the General Code of Practice and the Late Night Trading Code of Practice established under the Liquor Licensing Act 1997, handed down on 30 April 2015. The agencies and interested parties claimed that the documents were exempt under clauses 1(1)(e), 4(3), 6(1), 7(1)(c), 8(1), 9(1), 13(1)(a) and 13(1)(b) of Schedule 1 to the FOI Act. The Ombudsman determined that some documents and parts of documents were exempt under clauses 1(1)(e), 7(1)(c), 9(1) and 13(1)(b), but that the considerable additional documents and parts of documents could be released in accordance with section 20(4) of the FOI Act. He varied the agencies’ determinations accordingly. The Ombudsman also considered the sufficiency of DPC’s searches for documents.

Environment Protection Authority (2014/08985)No summary available.
Southern Adelaide Local Health Network (2016/09030)No summary available.