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.

A Council (2018/10883)

The applicant sought an external review of the agency’s determination under section 18(2a) of the FOI Act to refuse to deal with her access application. This section permits an agency to refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access conferred by the Act, or is made for a purpose other than to obtain access to information.

On external review the Ombudsman observed that section 18(2a) is not to be used lightly but that it serves to strike a balance between the right of access to an agency’s documents and the resources used by the agency to provide that access. He also noted that in establishing that a particular application was part of a pattern of conduct, the agency could properly have regard not only to the number of FOI applications made by a particular applicant but also other conduct of the applicant when communicating with the agency.

The Ombudsman determined that there were sufficient grounds for the agency to have reasonably formed the view that this particular application was part of a pattern of conduct that amounted to an abuse of the right of access. In reaching this view, the Ombudsman took account of the fact that the applicant had made a number of access applications since November 2016. Many of the applications had similar or identical wording and were broad in scope. Each related to the operation of a single business operating in the council area. As well as making FOI applications, the applicant had otherwise corresponded extensively with the agency during the same period. Given these factors, the agency’s determination was confirmed.

Wattle Range Council (2018/11031)Summary

Town of Gawler (2018/03576)

The applicant sought access to a report commissioned by the agency about the rural areas of Gawler (the report) and associated correspondence. The agency claimed various documents exempt as documents affecting personal affairs (clause 6(1)), documents affecting business affairs (clause 7(1)(c)), internal working documents (clause 9(1)), and documents containing confidential material (clause 13(1)(a)). Although not relied on by the agency, having regard to existing confidentiality orders, the Ombudsman found the report exempt as subject to secrecy provisions under the Local Government Act 1999 (clause 12(1)). In addition, the Ombudsman accepted the agency's clause 9(1) claim to the extent that information in one document would disclose the contents of the report. The Ombudsman rejected the remaining claims of exemption. The Ombudsman also concluded that a contract entered into after 1 January 2005 could not be exempt under clause 7(1), given clause 7(3). The Ombudsman varied the agency’s determination to enable various documents to be released. The Ombudsman also commented on the agency's failure to engage in the public interest balancing process and noted that it had purported to make a determination to release some documents without having undertaken the required consultation.

Attorney-General's Department (2018/03527)

The applicant sought access to resolutions or decisions of the Legal Practitioners Conduct Board to lay charges or amended charges against him. The agency claimed that various documents were exempt as documents affecting personal affairs, internal working documents, documents subject to legal professional privilege, documents relating to judicial functions etc, documents the subject of secrecy provisions (in conjunction with section 73 of the Legal Practitioners Act 1981), and documents containing confidential material. The Ombudsman accepted that some documents or parts of documents were exempt as documents affecting personal affairs, documents subject to legal professional privilege and documents relating to judicial functions etc, but rejected the agency’s remaining claims of exemption. The Ombudsman varied the agency’s determination to enable some documents and parts of documents to be released. The Ombudsman also made observations about his obligations to consult interested parties.

Department for Education (2018/05763)

This determination has been affirmed by SACAT.

The applicant, a student teacher at a public high school, sought documents relating to allegations, made by students and staff, of inappropriate behaviour towards students during his teaching placement. The Department for Education refused access to the documents on the basis that they were exempt pursuant to clauses 6 (personal affairs) and 16 (1)(a)(iii) and (b) (adverse effect on management or assessment of personnel).

On external review, the Ombudsman determined that the documents contained personal affairs information of both the students who were reported to have made allegations of inappropriate statements by the applicant about other students, and the students about whom the statements were allegedly made. The Ombudsman considered the factors in determining whether it would be unreasonable to disclose this information and determined it would be unreasonable.

The Ombudsman determined that where allegations of this nature exist against an individual, the risk is not just to students at the campus at which the alleged behaviour is said to have occurred, but to any child who may come in contact with that individual. The Ombudsman considered that whilst staff members have oblations under the Public Sector Code of Ethics to report and assist in such matters, it could reasonably be expected that staff may be less likely to provide information with candour in relevant investigations where the contents of such information may become a matter of public knowledge. As such it could reasonably be expected that disclosure would have a substantial adverse effect on the management or assessment by the agency of the agency's personnel.

In assessing whether disclosure would be contrary to the public interest, the Ombudsman considered the public interest in people understanding the nature of allegations made about them in order to ensure they are afforded appropriate procedural fairness. The amount of information already known by the applicant was taken into account. The Ombudsman considered it was a significant public interest factor against disclosure that release could reasonably be expected to prejudice the Department for Education’s ability to obtain information relating to the behaviours of adults who work with children.

Central Adelaide Local Health Network (2018/06640)Summary

City of Onkaparinga (2018/05396)

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.

SA Police (2018/04625)

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).

Department of Planning, Transport and Infrastructure (2018/02781)

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.

Northern Adelaide Local Health Network (2018/06349)

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.

Department for Education (2018/01841)

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.

Flinders University (2018/02691)

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.

SA Police (2017/06579)

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.

University of Adelaide (2018/00025)

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 seven documents and provided partial access to a further seven 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 eight 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 that the agency strongly argued against releasing some of the information within the 14 documents, even though it had already released the information willingly within other 46 documents which it released as per its original determination.

Attorney-General (2017/12384)

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.

Department of the Premier and Cabinet (2017/10855)

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.

District Council of Grant (2017/06562)Summary

City of Adelaide (2017/11142)

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.

Department of Planning, Transport and Infrastructure (2017/00625)

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.