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 Energy and Mining|
This report concerns an audit undertaken by Ombudsman SA to monitor compliance with the provisions of the Criminal Law (Forensic Procedures) Act 2007 (CL(FP) Act) during the period of 1 July 2019 to 30 June 2020.
The audit identified very few instances of non-compliance. In particular, the Deputy Ombudsman noted that:
The report made a number of recommendations which the Commissioner of Police has indicated he accepts or will consider further.
|South Australian Tourism Commission|
The applicant sought access to documents relating to his voluntary participation as a trackside official at the Adelaide 500, formerly the Clipsal 500. Four documents were identified in scope and all related to complaints about his performance as an official, made by senior motorsport officials of Motorsports Australia.
Of Interest, the Ombudsman considered whether the documents about motor sports operations on the track and incidents on the trackside concerned the business affairs (clause 7(1)(c)) of the third party, a not for profit sporting body. The Ombudsman concluded that the documents did not concern the business affairs of the third party.
|Central Adelaide Local Health Network|
In this matter the applicant, Mr Blair Boyer MP, made his application under the Freedom of Information Act 1991 acting as an agent on behalf of Mr Clause Burg. The application was made for documents to assist Mr Burg through a misdiagnosis of cancer. The initial application was made in June 2019 and Mr Burg passed away in September 2019. The agency issued a determination in December 2019.
The agency identified 138 documents in scope of the application which totalled 1080 pages in length. The agency determined to release the documents in part. Information was considered exempt on grounds that the information related to the personal affairs of individuals other than the applicant and also on grounds that information was considered to form parts of internal working documents of the agency. The applicant sought a review of the information that the agency considered to form parts of internal working documents which were claimed to be exempt pursuant to clause 9 of schedule 1 of the FOI Act. This information consisted of 88 pages in full and 364 pages in part.
The Ombudsman considered the agency’s submissions to be lacking. In order for documents to be exempt as an internal working document, release of the documents must, on balance be contrary, to the public interest. The Ombudsman considered that disclosure of information in this instance was of substantial public interest. The information in issue related to the potential failure of an agency in providing services related to the health and wellbeing of a member of the public, and the consequences of the potential failure were of a serious nature. In the absence of any compelling factors that indicated the release of information would be contrary to the public interest, the Ombudsman varied the agency’s determination to the effect that all information claimed to be exempt pursuant to clause 9 should be released to the applicant in full.
|Department for Health and Wellbeing|
The applicant sought access to a copy of briefing material prepared by the agency for the purposes of the 2019 hearing held by SA Parliament’s Estimates Committee. The applicant subsequently clarified that he sought access to all documents contained in folders the agency’s Chief Executive took to the hearing.
Following a double deemed refusal by the agency, the applicant sought external review by the Ombudsman. During the external review, the agency claimed that the documents were exempt on the basis of clause 17(c) of the FOI Act because public disclosure of them would infringe the privilege of Parliament. The Ombudsman agreed that was the case and confirmed the agency’s refusal to provide access to the documents.
On external review, the Ombudsman noted that the concept of Parliamentary privilege has not been codified in South Australia. Article 9 of the UK Bill of Rights 1688 protects the proceedings of Parliament and applies in South Australia. Applying South Australian case law, the Ombudsman took the view that documents would be exempt under clause 17(c) of the FOI Act if they contain information that is so closely and directly connected to the business of Parliament that their disclosure would undermine the level of autonomy that Parliament is entitled to when conducting its business. That business is investigating, deliberating and legislation.
The applicant submitted to the Ombudsman that it was highly unlikely that all the documents prepared by the agency were utilised by its Chief Executive during his appearance before the Estimates Committee and questioned whether unused documents would be protected by Parliamentary privilege. However, the Ombudsman took the view that preparation by a witness to give evidence before Parliament was so closely and directly connected to the business of Parliament that documents created in the course of such preparation are protected by Parliamentary privilege.
|Minister for Health and Wellbeing|
In this matter the applicant, Mr Picton MP, made an application under the Freedom of Information Act 1991 requesting access to any and all documents regarding the new Women’s and Children’s Hospital. Following a double deemed refusal, the agency purported to issue a belated determination identifying 24 documents within the scope of the applicant’s request. The applicant sought an external review by the Ombudsman in relation to three of the documents in issue.
The agency submitted two of the documents to be exempt pursuant to clause 1 but did not identify a sub-clause. The Ombudsman considered that the agency’s submissions were not justified, specifically noting that although Cabinet may have noted the contents of the documents, this falls short of constituting a deliberation or decision.
The third document in issue was submitted to be exempt pursuant to clause 9(1). The Ombudsman considered the agency’s submissions to be lacking, noting that only one public interest factor had been identified. Having particular regard to the public interest in health service capability and government expenditure, the Ombudsman found that on balance, disclosure of the document would not be contrary to the public interest.
The Ombudsman therefore reversed the agency’s determination such that the documents in issue be released in full.
In this matter the applicant made an application under the Freedom of Information Act 1991 requesting access to all documents relating to her arrest, including the body cam footage of the two arresting officers. In its determination to the applicant, the agency did not specify whether any documents were found to be within the scope of the applicant’s access request, but determined not to release any documents pursuant to clause 12(1) in conjunction with sections 44 and 45 of the Police Complaints and Discipline Act 2016.
During the external review the agency revised its position, submitting that several of the arrest documents were not considered to be exempt and that the body cam footage was considered to be only partially exempt. Upon being requested to provide explanation as to its altered position, the agency advised that section 45(1) of the Police Complaints and Discipline Act 2016 was no longer considered to be applicable to several of the documents noting that authorisation had been given to disclose the documents in accordance with the authority of the Commissioner of Police.
The Ombudsman determined that the agency’s revised position that a portion of the body cam footage remained exempt pursuant to clauses 4(2)(a)(v) and 4(2)(a)(vi) was justified. In reaching this conclusion the Ombudsman noted in particular the high public interest in preserving the security of a police complex and ensuring that police officers are able to effectively carry out their duties.
The Ombudsman also determined that the agency’s position to refuse access to the complaint files pursuant to clause 12(1) in conjunction with section 45 of the Police Complaints and Discipline Act 2016 was justified.
|Yorke and Northern Local Health Network|
The applicant, Mr Chris Picton MP, made an application under the Freedom of Information Act 1991 requesting access to any and all State reports regarding the accreditation, safety and/or quality of State Government-managed aged care facilities. As an incidental matter SA Health published 44 audit reports of aged care facilities that were made publically available on its website. These reports were treated as falling within the scope of the applicant’s application for access. After consultation with the applicant, the Ombudsman’s external review considered ten of the audit reports to be in issue.
The published reports contained numerous redactions which were purported to be made for the purpose of protecting the personal affairs of third parties and the information was considered exempt pursuant to clause 6 of schedule 1 of the FOI Act. During the external review process the agency revised its position and claimed that information was exempt as it related to the personal affairs of third parties, and also as the information concerned the operations of agencies.
The issue of the documents relating to the personal affairs of third parties predominantly concerned the need to protect the privacy of aged care recipients. The agency submitted that as the audit reports related to aged care facilities in country towns, any information related to patients attracted greater sensitivity as the information could readily identify patients even if it was anonymised. The Ombudsman accepted the agency’s view to an extent, however found that the agency’s redaction of information went beyond what was necessary to protect the privacy of third parties. In considering whether disclosure of the information would be unreasonable, the Ombudsman considered multiple factors. A significant factor the Ombudsman considered was that the information related to the ongoing scrutiny of the quality of care provided to aged care recipients, and as such the information carried significant contemporaneous relevance. The Ombudsman considered that information should be further released insofar as possible whilst maintaining a level of confidentiality to protect the privacy of aged care recipients.
The agency also claimed that the audit reports contained information that if disclosed, could have a negative impact on the conduct of tests, examinations or audit performed by the agency, and as such considered that information was exempt pursuant to clause 16(1)(a)(i) and (ii) of schedule 1 of the FOI Act. The Ombudsman considered that clauses 16(1)(a)(i) and (ii) did not apply in this instance as the clauses did not cover the issues raised by the agency. The Ombudsman also noted that in order for either clause to apply, it would also require that disclosure of information would, on balance, be contrary to the public interest. The Ombudsman considered that due to the ongoing issues in aged care health facilities, the agency had not provided a satisfactory justification that disclosure would be contrary to the public interest.
|Department of Treasury and Finance|
In this matter the applicant sought external review of a determination of the Department of Treasury and Finance which refused access to a number of documents and released other documents in part concerning the 2019-20 Federal Budget. The agency released 21 documents in full, 9 in part and refused access in full to 19 documents. The agency claimed that material was exempt under clauses 1(1), 5 and 6(1).
The Ombudsman determined that the agency’s position to refuse access to documents made pursuant to clause 5 was not justified. Clause 5 stipulates that a document is exempt if it affects inter-governmental relations. The agency stated that release of three documents would cause damage to the relationship between the Commonwealth Treasury and State and Territory Treasuries. The Ombudsman found that the submissions made by the agency did not satisfy the position that release of the documents would be contrary to the public interest.
The Ombudsman also determined that the majority of information claimed to be exempt under clause 6(1) was not exempt. The exemptions were made following the general practice of the Commonwealth Treasury, however the Ombudsman found that this practice was not in line with the FOI Act.
With respect to clause 1(1) the Ombudsman determined that the agency had justified the exemptions claimed as the documents were draft documents submitted to Cabinet or the documents would otherwise disclose information concerning any deliberation or decision of Cabinet.
|District Council of Coober Pedy|
In this matter the applicant sought an external review of a determination of the District Council of Coober Pedy to release one document concerning his personal affairs. The agency had previously received two separate access applications from other parties and found that one of the documents in issue in both applications contained the applicant’s personal affairs. The applicant was consulted and, despite his objection to disclosure, the agency determined to release the document to the two original applicants.
The Ombudsman determined that the document in issue concerned the applicant’s personal affairs, noting that the information contained therein related to the personal qualities/attributes of the applicant and contained allegations of criminal and improper conduct, the truth of which has not been established by judicial process.
The Ombudsman also determined that although the information contained in the document had been posted on a public forum, disclosure of the document would be unreasonable. The document contained a comment left by a member of the public in response to an online article, but did not contain the article itself. The Ombudsman concluded that to release the comment absent its original context could be misleading and lead to false assumptions as to the accuracy of the contents of the comment.
The Ombudsman therefore varied the agency’s determination such that the document in issue was found to be exempt pursuant to clause 6(1).
|South Australian Tourism Commission|
In this matter the applicant sought external review of a decision of the South Australian Tourism Commission to refuse him access to documents concerning a proposal he had submitted for Juventus Football Club to tour Adelaide in 2019, and the agency’s refusal to support Juventus FC at an event at Adelaide Oval. The agency released in full all but two documents within scope of the request and partially released the remaining two documents with redacted material which it claimed was exempt under clauses 7(1) and 16(2) of Schedule 1 to the FOI Act.
The Ombudsman determined that, pursuant to clause7(2) of Schedule 1, a document is not exempt under clause 7(1) where the agency claims release would have an adverse effect on its own business affairs and no other party’s business affairs would be adversely impacted by the proposed release.
The Ombudsman also determined that the agency was not able to rely in the exemption set out in clause 16(2) in relation to the documents in issue as their disclosure would not prejudice the competitiveness of the agency in carrying out commercial activities. The Ombudsman found that the activities of the agency which would be disclosed if the redacted material was released were not of a commercial character.
The Ombudsman did consider however that both documents in issue were internal working documents within the meaning of clause 9 of Schedule 1 and that disclosure of the redacted material would, on balance, be contrary to the public interest. The Ombudsman therefore upheld the agency’s determination.
|Department for Health and Wellbeing|
In this matter Mr Chris Picton MP sought access to documents from the Department for Health and Wellbeing. The request was for any documents held by any health entity, including the Chief Executive, regarding upgrades and/or additional resourcing for cardiac services at the Queen Elizabeth Hospital, from 18 March 2018.
The agency identified three documents within scope of the application, each of which comprised a minute from the agency’s Chief Executive to the Minister. The agency claimed that the first and third documents contained exempt matter, and that the second document was exempt in its entirety. In the case of all three documents, the agency sought to rely on two exemption clauses, namely that the documents were Cabinet documents (clause 1) and internal working documents (clause 9). By the time the applicant sought external review, the agency had abandoned its clause 9 claim but maintained its claim that the documents were exempt Cabinet documents. It also revised its position in respect of the second document, stating that access could be given to part of the document whilst maintaining that the remaining material was exempt under clause 1.
The Ombudsman provided his provisional determination to the parties, noting that the agency had not discharged its burden under section 48 of the FOI Act, which provides that the burden of establishing that its determination was justified. The agency had not provided any evidence that the documents were exempt as copies of, parts of, or contained extracts from, documents that had been specifically prepared for submission to Cabinet (or drafts of such documents). Throughout the process, the agency had provided different reasons for its position that the documents were exempt. These included that the documents contained information concerning a deliberation or decision of Cabinet, or could disclose information concerning Cabinet, or contained figures that had been submitted to Cabinet as part of budget submissions. None of these justified the claim that the documents were exempt under clause 1(1)(c). In the absence of any submissions from the agency on the provisional determination, the Ombudsman issued his final determination, reversing the agency’s determination and providing the applicant with full access to all three documents.
|Adelaide Hills Council|
The applicant in this external review was an interested party to a Freedom of Information application made by another person to the Adelaide Hills Council (the agency) for information relating to a noise complaint.
The agency identified one document, the complaint, within scope and determined to partially release the document. The content of the complaint was redacted due to being outside the scope of the FOI application; the applicant’s mobile, business telephone and email address was redacted pursuant to clause 6(1) of Schedule 2 of the Freedom of Information Act 1991 (the FOI Act); only the applicant’s name was disclosed.
Where a document contains information concerning the personal affairs of any person, section 26(2) of the FOI Act requires the agency to take such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6. Accordingly the agency consulted with the applicant. Concerned by the agency’s determination to disclose their name, the applicant sought an internal review by the agency. The original determination was confirmed.
The applicant sought an external review by the Ombudsman. In ordinary circumstances, identifying information such as names and telephone numbers are not themselves information relating to the personal affairs of an individual. However, it has been held by the District Court of South Australia that in instances where disclosing such identifying information has the effect of identifying the person as a complainant, this may constitute disclosure of their personal affairs.
Given the applicant’s concern about their identity as the complainant being known, the emotional and physical toll the disclosure determination had on the applicant and their family and the potential effect on the applicant’s welfare, the Ombudsman determined that disclosure of the applicant’s name would amount to the unreasonable disclosure of the applicant’s personal affairs. The Ombudsman reversed the agency’s determination such that the applicant’s name was required to be redacted from the document.
|Adelaide Venue Management Corporation|
Mr Casey Briggs (the applicant) sought access to documents about any combustibility reports or documents about cladding on Adelaide Convention Centre buildings. The cladding of concern is Aluminium Composite Cladding (ACP cladding), which when containing high quantities of polyethylene can be flammable.
The Adelaide Venue Management Corporation (the agency) refused access to the documents on various grounds.
In the course of the Ombudsman’s external review the agency revised its position, agreeing to the release of a number of documents but claiming clause 4(2)(a)(v) (disclosure could reasonably be expected to endanger the security of a building or structure) in relation to the remaining documents. In relation to information about the cladding itself, it now only claimed that the documents revealing the specific buildings in which the cladding was contained, the location of the cladding on those buildings and description of that cladding was exempt. The agency provided confidential submissions and evidence to support this claim.
The Attorney-General intervened, informing the Ombudsman of her assessment of what the public interest required. The Attorney-General’s assessment was consistent with the revised position of the agency and its concerns about identifying the location of the cladding.
The Ombudsman upheld the Attorney-General’s assessment in part, but considered that he had cogent reasons to depart from her assessment in respect of the identification of the specific buildings on which the ACP cladding could be found. The basis for this was that the identity of those buildings was already in the public domain, particularly because the agency had previously released to the applicant letters containing this information.
|Department of the Premier and Cabinet|
The applicant sought access to documents regarding discussions between the Department of the Premier and Cabinet (the agency) and a land development company (the interested party) in relation to land at Moana. This matter involved two novel procedural issues:
In regard to the first issue, the Ombudsman considered that it was not within his jurisdiction as an external review authority to compel or require the applicant to return or destroy documents that had been accidentally released to him in the course of the original determination. Rather, the Ombudsman considered that this would need to be addressed by the agency, the applicant, and the interested party.
The second issue arose when the agency proposed to issue an additional determination under section 19(2a) of the FOI Act, and in doing so, release the remaining document in issue to the applicant. However, the Ombudsman was of the view that as the agency had already issued its original determination, it could no longer make a determination under section 19(2a). The Ombudsman concluded that if the agency were to issue a determination, purportedly under section 19(2a), it would do so without the protections of the FOI Act. Finally, the Ombudsman considered whether to try to effect a settlement between the parties, in accordance with section 39(5)(c) of the FOI Act. However, having regard to the interested party who objected to the release of the remaining document, the Ombudsman proceeded to consider the exemption clauses originally claimed by the agency.
|District Council of Tumby Bay|
In this matter the agency refused to deal with the applicant on the basis that the application formed part of a pattern of conduct amounting to an abuse of a right of access (section 18(2a) of the Freedom of Information Act 1991). The situation was unique due to the time elapsing between the application in 2018 and the pattern of conduct it was a part of in 2013 to 2014. In this case, the Ombudsman considered that it was reasonably open to the agency to form the view that the application formed part of the pattern of conduct that amounted to an abuse of conduct. The Ombudsman therefore confirmed the agency’s determination but made a number of qualifying remarks about the applicability of the refusal of access. In particular, the Ombudsman noted that:
|Minister for Health and Wellbeing|
In this matter Mr Chris Picton MP (the applicant) sought access to documents from the Minister of Health and Wellbeing (the agency). The request was for any documents between the Minister and/or Minister’s office and Ms Georgina Downer and/or the Liberal for Mayo campaign.
The agency identified three documents within scope of the application. Two documents were released with information concerning a third party redacted as information concerning personal affairs. This issue was straightforward and the Ombudsman was satisfied with the agency’s decision.
The third document redacted an email attachment which was declared to contain information from confidential intergovernmental communications between the State and Commonwealth government. The Ombudsman rejected that the disclosure of the information contained in the attachment would be contrary to the public interest. In coming to this conclusion, the Ombudsman drew attention to the fact that the attachment had already been released to a member of the public, Ms Georgina Downer. He noted that once a document is released to a member of the public, any control over the distribution of that document is forgone. Accordingly he arrived at the view that the agency had already acted contrary to the claimed confidentiality of the document, and that as a result he was not satisfied that any part of the document was exempt.
|Office of the Premier|
(2019/01163; 2019/01165; 2019/01206; 2019/01207)
The applicant made 11 applications for documents relating to the Adelaide Oval hotel development. This external review considered 4 applications simultaneously due to significant overlap of documents. In the course of the external review, the Ombudsman considered and made comment on the agency’s consultation practices.
The agency did not issue determinations in response to the applicant’s original or internal review applications. The agency explained that the deemed refusal had occurred due to consultation with interested parties. It appeared to the Ombudsman that the agency had adopted the following approach:
According to the agency, it had adopted this approach to exhaust the review rights of the interested parties before issuing determinations to the applicant. It was the agency’s view that it could not issue a determination to an applicant and interested parties at the same time as to do so would release the documents to an applicant before the review rights of an interested party had expired.
The Ombudsman concluded that while this approach was well-intentioned, it was not in accordance with the Freedom of Information Act 1991. The FOI Act requires that agencies and external review authorities consult with interested parties in certain circumstances. However, this consultation does not operate to exhaust the review rights of those parties. Rather, agency should advise all parties of the determination at the same time but delay the provision of the documents for the duration of the relevant review period, allowing any interested parties to seek internal or external review, depending on the stage or status of the matter.
In the Ombudsman’s view, issuing a determination to the interested parties alone may prioritise their views over that of the applicant, and may allow the submissions of those parties to sway the views of the agency before the applicant is aware of the agency’s determination.
The Ombudsman also considered the following:
|Office of the Treasurer|
The applicant sought access to documents regarding the termination of employment contracts in the Public Service.
The agency identified four documents within scope of the applicant’s request and determined the documents to be exempt under Schedule 1 to the FOI Act. In submissions in response to the Ombudsman’s external review, the agency contended that, notwithstanding its earlier determination, the majority of one document was outside the scope of the applicant’s request and that the Ombudsman’s jurisdiction to conduct external review was limited to those parts of the document that the agency considered to be within scope. The Ombudsman rejected this submission The Ombudsman maintained that he was obliged to review the determination as issued by the agency.
Pursuant to section 39(9) of the FOI Act the Attorney-General (being the Minister administering the FOI Act for the purpose of that subsection) wrote to the Ombudsman with advice as to what the public interest required in relation to disclosure of two of the documents under review. The Ombudsman is required to uphold a Minister’s assessment under subsection 39(9) unless there are cogent reasons for not doing so. The Ombudsman determined there were cogent reasons for not upholding the Attorney-General’s assessment in relation to an attachment to one of the documents which had been published on a Government website. With the exception of the attachment, the Ombudsman upheld the agency’s determination.