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.

Department for Environment and Water (2019/07561)

The applicant sought access to documents relating to koala numbers, and koala culling and sterilisation plans in South Australia. The Ombudsman disagreed with the agency’s application of a number of exemption clauses under the Freedom of Information Act 1991 (the FOI Act), and varied the agency’s determination.

The Ombudsman also commented on the agency’s failure to justify its determination, and stated that its lack of submissions and proper consideration of exemption clauses under the FOI Act was unreasonable enough to warrant comment by him in his report. He further recommended that the agency’s FOI officers undertake additional training to improve their understanding of the FOI Act. The Ombudsman also commented on the applicant’s unreasonable conduct in providing his provisional report to the media, which in his view, diminished the applicant’s right to procedural fairness.

Department of Human Services (2019/02090)

Although the agency’s determination was confirmed, the Ombudsman considered that it was in the public interest to publish this external review due to the significance of the subject matter and the fine balance of public interest factors considered therein.

The application related to a youth anti-radicalisation program, the Living Safe Together Intervention Program (the LSTIP). The LSTIP is funded by the Commonwealth and operated by individual states. According to the LSTIP website, the purpose of the program is to ensure that ‘Australian State and Territory agencies have the capacity to identify, assess and deliver individualised plans for people who are at risk of becoming involved with violent extremism, to reconnect them with their family, friends and local community’.

The applicant applied to the agency for the number of referrals made to the program and whether certain individuals had been referred. The agency identified 8 documents within the scope of the application but failed to issue a determination or internal review determination within the timeframes of the Freedom of Information Act 1991 (the FOI Act).

The Ombudsman considered the application of clause 5(1)(a)(i) and 5(1)(a)(ii) together, as the agency had submitted that damage to intergovernmental affairs was reasonably expected to result from the disclosure of confidential communication.

Having regard to:

  • the purpose of the documents
  • the particular sensitivity of the information and the purpose of the LSTIP
  • the relationship between the agency and its interstate and Federal counterparts
  • and guidelines shared between the agency and its counterparts which prescribed that referral numbers should not be publicly disclosed,

the Ombudsman was satisfied that disclosure could reasonably be expected to damage intergovernmental relations, and would divulge confidential intergovernmental communication.

Turning to consider whether disclosure would be contrary to the public interest, the Ombudsman acknowledged that the public interest factors in the matter were finely balanced. On the one hand:

  • public awareness and confidence in effective anti-radicalisation measures
  • and transparency and accountability in an era of wide-ranging anti-terrorism laws

were considered to be strong factors in favour of release.

On the other hand:

  • the particular sensitivity of the program
  • and the vulnerability of participants and their communities (who may have been identified or misidentified as a result of disclosure)

were considered to outweigh factors in favour of disclosure.

The Ombudsman concluded that release would be contrary to the public interest and that the documents were exempt by virtue of clause 5(1)(a)(i) and 5(1)(a)(ii). The Ombudsman did not consider it necessary to consider the remaining exemption clauses claimed by the agency.

Department of Treasury and Finance (2019/00516)No summary available.
Department of Treasury and Finance (Safework SA) (2019/02612)

The applicant sought access to a report that had been provided to SafeWork SA following the failure of a personnel hoist at a worksite where the applicant’s employee’s had been present. The agency refused access to the report in full on the basis that it was exempt by virtue of clause 12, in conjunction with section 271 of the Work Health and Safety Act 2012. That is, the report was subject to a secrecy provision.

In the course of the external review, the Ombudsman sought submissions from the agency as to whether the exceptions to section 271 were relevant in the circumstances, and in particular, whether release of the report would assist in the regulator’s functions under the Work Health and Safety Act. The agency provided submissions in response, advising that it did not consider that the exceptions applied in this instance.

Although the agency’s determination to refuse access was confirmed, the Ombudsman noted that an agency must to do more than state the effect of a secrecy provision in isolation. Rather, an agency should grapple with the effect and intention of the secrecy provision in the context of the relevant statute.

Department of Treasury and Finance (2019/02113)

The applicant sought documents from the agency in relation to KordaMentha’s review and subsequent administration of the Central Adelaide Local Health Network. The agency did not grant access to all documents and the applicant sought external review.

Ten documents were at issue in the external review. The agency claimed that the documents were variously exempt pursuant because they were Cabinet documents (clause 1(1)(b), (c) & (f)), unreasonably disclosed a person’ personal affairs (clause 6(1)), and impugned on the privilege of Parliament (clause 17(c)). The Ombudsman confirmed the agency’s determination in respect of seven documents and varied the determination of the agency in respect of three documents.

Some of the specific observations made by the Ombudsman include:

  • an email may constitute a ‘briefing paper’ if it is specifically prepared for use by a Minister in relation to submissions to Cabinet
  • a document advising about the processes of Cabinet may not be exempt as a Cabinet document. Where, however, that document contains opinion, advice, recommendation, consultation or deliberation about such a decision, it may be an exempt as an internal working document (clause 9)
  • a briefing note used by an MP or an MLC in Parliament may be exempt from disclosure under the FOI Act if it can be shown to have a nexus to the proceedings of Parliament, including those of a Parliamentary Committee

Department for Health and Wellbeing (2019/00115)

The applicant sought access to documents held by the agency regarding the re-establishment of elective surgery procedures at the Repatriation General Hospital site.  The agency identified five documents within the scope of the application. It claimed they were exempt under clause 1(1)(a) of Schedule 1 of the Freedom of Information Act 1991 (the FOI Act). Clause 1(1)(a) applies to documents specifically prepared for submission to Cabinet (whether or not so submitted).

The Ombudsman noted that the four of the documents were specifically prepared for the incoming Minister of the new Government in March 2018. The fifth document related directly to the other four documents in content and purpose. While the documents were marked “Sensitive: SA Cabinet”, there was nothing else suggesting that the documents had been prepared for submission to Cabinet. Rather they were apparently intended to brief the incoming Minister.

The Ombudsman noted that the classification of documents as “Sensitive: SA Cabinet” by itself did not equate to those documents being exempt under the FOI Act. Document classification is calibrated towards risk management of sensitive material rather than to meet the criteria of Schedule 1 of the FOI Act. The Ombudsman emphasised that an agency must show that the purpose of drafting the documents was to submit that documents to Cabinet, whether or not they were submitted. In this case, it had not.

While the Ombudsman did not accept that the documents were Cabinet documents exempt by clause 1(1)(a) of the FOI Act, the Ombudsman held that the documents were internal working documents of the agency and therefore exempt pursuant to clause 9 of Schedule 1 of the FOI Act. The Ombudsman placed considerable weight on the public interest associated with the conventional confidentiality of such documents.

Consequently, the Ombudsman agreed that the documents were wholly exempt but varied the basis on which exemption was claimed.

Department of Treasury and Finance
(2018/09633)

The applicant sought access to documents held by the agency in relation to infrastructure funding and the 2018-19 Commonwealth Budget, between 19 March 2018 and 30 May 2018. The agency identified a number of documents in scope, of which documents 6 and 8 were in dispute in this review.

The agency claimed that document 6 was exempt pursuant to clauses 1(1)(e), 1(1)(f) and 5 of Schedule 1 to the Freedom of Information Act 1991 (FOI Act).

In considering whether document 6 was exempt pursuant to clause 1(1)(f), the Ombudsman found no evidence to support a finding that  the document was ‘specifically prepared for the use of a Minister in relation to a matter submitted, or proposed to be submitted to Cabinet’.

In considering whether document 6 revealed a deliberation or decision of Cabinet, the Ombudsman had regard to the decisions of the District Court of South Australia in Department of State Development v Pisoni [2017] SADC 34 and of the South Australian Civil and Administrative Tribunal in Premier and Cabinet v Dan van Holst Pellekaan (van Holst Pellekaan) [2018] SACAT 56.

The Ombudsman adopted the test set out by Member Stevens in van Holst Pellekaan, comprising the following two questions:

  1. Has there been a relevant deliberation or decision of Cabinet?
  2. If so, do the documents contain matter the disclosure of which would disclose  information concerning that deliberation or decision?

The Ombudsman accepted that the answer to the first question was affirmative. However, there was no evidence that disclosure of document 6 would reveal information concerning that deliberation or decision of Cabinet. The Ombudsman reiterated his observation that the classification of a document as “Sensitive: SA Cabinet” did not, in itself, render document exempt under clause 1.

The Ombudsman rejected the agency’s submission that the document was exempt pursuant to clause 5. Noting that the Federal Minister concerned agreed with the Ombudsman’s provisional views, the Ombudsman considered that document 6 contained no matter that could reasonably be expected to damage intergovernmental relations if disclosed nor divulged information from a confidential intergovernmental communication.

The agency claimed that document 8 was wholly exempt pursuant to clause 1(1)(a) of Schedule 1 of the FOI Act. Noting that the document was specifically prepared for submission to Cabinet, the Ombudsman confirmed the agency’s determination regarding document 8.

Department for Innovation and Skills (2019/01255)

The applicant sought access to a copy of Mr Nicholas Handley’s curriculum vitae held by Department of Industry and Skills as it was then named (the agency). The agency refused access to the curriculum vitae pursuant to clause 1(1) and clause 6(1) of Schedule 1 of the FOI Act. On external review, the agency submitted to the Ombudsman that it considered the curriculum vitae was a part of, or extract from, a Cabinet submission (clause 1(1)(c)), that it disclosed the deliberation of Cabinet (Clause 1(1)(e)) and that its disclosure would unreasonably disclose the personal affairs of Mr Handley (clause 6(1)).

The Ombudsman varied the determination to give partial access to the document. The Ombudsman noted that a document attached to a Cabinet submission does not attract exemption under clause 1(1) merely because it is attached. The Ombudsman was not satisfied that any part of clause 1(1) applied to the document.

The Ombudsman identified that some content found within the curriculum vitae had also been placed in the public domain by Mr Handley. The Ombudsman was satisfied that the curriculum vitae did contain information concerning Mr Handley’s personal affairs and that its disclosure would be unreasonable, with the exception of content that is also in the public domain.

The Ombudsman also considered that disclosure of the curriculum vitae would found an action for breach of confidence, but that content already found in the public domain did not contain that quality of confidentiality. The Ombudsman therefore considered that the curriculum vitae was also partially exempt pursuant to clause 13(1)(a).

The Ombudsman concluded that the portions of the curriculum vitae which could be found in the public domain must be disclosed, but confirmed that the remainder of the document was exempt.

Department of Treasury and Finance (Safework SA) (2018/11929)

The applicant allegedly suffered injury during the course of council works outside of her home.  She sought access to all documents generated by the agency in the course of its investigation into that incident.

The agency submitted that many of the documents were wholly or partially exempt as documents subject to secrecy provisions in other legislation (clause12(1)) or as containing personal affairs (clause 6(1).

The Ombudsman considered that as the information in issue was obtained by SafeWork SA in the course of administering the Work, Health and Safety Act 2012 (the WHS Act) the effect of disclosure of the information should be assessed in accordance with the provisions of that Act.  The Ombudsman found that the agency was required to consider to whom the information in the documents (that it claimed were subject to clause 12(1) of the FOI Act) related, to ascertain whether section 271 (3)(a) of the WHS Act applied.

The Ombudsman was satisfied that by applying for access to the documents the applicant had consented to the disclosure of information relating to herself, and therefore it was not an offence to disclose the information which related to the applicant, pursuant to section 271(3)(a) of the WHS Act.

The Ombudsman also considered that some of the documents were generated by the agency itself (rather than obtained or gained by the SafeWork inspector in 'exercising any power or function' under the WHS Act.) The Ombudsman considered that most of the information in the documents generated by the agency was of purely an administrative nature and could be disclosed without offending section 271(1) of the WHS Act.

The Ombudsman accepted the agency’s claim that some of the documents contained the personal affairs of third parties and therefore that information was exempt pursuant to clause 6(1).

The Ombudsman varied the agency’s determination such that it release a further 5 documents to the applicant.

Southern Adelaide Local Health Network (2018/10751)

The applicant sought access to information concerning the engagement of medical locum service providers by the Southern Adelaide Local Health Network (the agency) between 2010 and 2017. The agency identified 33 documents within the scope of the application and determined to partially release 1 document and refuse access to the remaining 32 documents on the basis that they were exempt by virtue of clause 6(1), 7(1)(a), 7(1)(b), 13(1)(a) and 13(1)(b). As the applicant agreed to exclude personal details of agency and locum staff, consideration of clause 6(1) was limited.

In the course of the external review, the agency withdrew the claimed exemption of clauses 7 and 13 over the contracts between the agency and a service provider and submitted that the documents were instead exempt pursuant to clause 16(2). The Ombudsman varied the determination and concluded that clause 16(2) did not apply to the contracts, reasoning that that while agency was permitted under the Health Care Act 2008 to engage in commercial activities, the public services that the agency provided did not take on a commercial quality simply because part of their operation had been outsourced to an external provider.

While the contracts between the service provider and the agency provided that certain information was to be treated confidentially, the Ombudsman considered that the expectation did not apply to invoice documents between the parties as the wording of the relevant confidentiality clause referred to the privacy of individuals. As such, the Ombudsman concluded that the invoices were not properly exempt by virtue of clause 13(1)(a) or 13(1)(b). However, given the breadth of the information across the invoices, the Ombudsman concluded that the documents were properly exempt by virtue of clause 7(1)(b).

The Ombudsman accepted that a portion of the remaining documents were properly exempt by virtue of clause 13(1)(a) as they contained the information of individual locum doctors that had been directly provided to the agency by the service provider. Other parts of the remaining documents were considered properly exempt by virtue of clause 7(1)(c) due to the breadth of the information contained therein.

Department of Planning, Transport and Infrastructure (2018/09937)

The applicant sought access to documents about the proposed right hand tram turn at the corner of King William Street and North Terrace. Following the agency’s belated determination giving access to some documents and parts of documents, the applicant was only aggrieved by the agency’s refusal to release one document. The agency claimed that document was wholly exempt as a document affecting personal affairs (clause 6(1)) and an internal working document (clause 9(1)). The Ombudsman also considered whether document was exempt as a document affecting business affairs (clause 7(1)(c)) given an interested party’s earlier objections to disclosure. The Ombudsman was not satisfied that the document contained information concerning anyone’s personal affairs. In reaching this conclusion, he had regard to the document’s contents and context in which employees’ names, email addresses and telephone numbers appeared, noting that they all formed part of correspondence created in connection with the performance of the employees’ employment duties. Additionally, the Ombudsman was not satisfied that disclosure of the document would, on balance, be contrary to the public interest, could reasonably have an adverse effect on the business affairs of any party, or would prejudice the future supply of information to the Government or an agency. In so doing, the Ombudsman considered the obligations on public sector employees, as well as businesses' financial interests in dealing with the government and agencies. The Ombudsman reversed the agency’s determination with respect to the document under review.