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 (2020/05327)

In this matter the applicant applied for a private mine plan. The agency determined the document was exempt pursuant to clause 12(1) and the Mining Act. The circumstances of the matter changed since the external review began and the Mining Act was no longer relevant. The agency indicated it had no objections to disclosure, however noted that it was possible the document contained information which was exempt pursuant to clauses 7 and 13, and that the Ombudsman should seek the interested party's views.

After seeking the interested party's views, the Ombudsman varied the agency's determination to disclose the document in part, with information exempt pursuant to clauses 6 and 7. The Ombudsman noted that he considered it unreasonable in this matter that the agency deferred the assessment of the document to the interested party.

SA Police (2020/05667)

The applicant sought access to, inter alia, documents which had been tendered during court proceedings to which he was a party. The agency relied upon section 18(1) in its submissions to the Ombudsman.

The Ombudsman observed that although the applicant may have been entitled to receive a copy of the documents sought in accordance with section 131 of the Supreme Court Act 1935, the present access application was made pursuant to the FOI Act and is therefore subject to the provisions of the FOI Act.

The Ombudsman found that, although the agency had not provided any indication as to the number of documents likely to be in issue, an exhibit list provided by the agency indicated a reasonable number of documents likely to be in issue, all of which could be easily identified and located. The Ombudsman concluded that the agency had not properly justified its reliance upon section 18(1) as required by section 48 of the FOI Act.

The Ombudsman varied the agency’s determination insofar as the agency refused to deal with a portion of the access application.

SA Police (2020/05319)

The applicant applied for documents relating to the enforcement of fines related to COVID quarantine measures. The agency determined to give partial access to four documents pursuant to clauses 6 and clause 12. Two of the documents contained body camera footage which was heavily redacted and blurred.

The Ombudsman confirmed the agency's determination to redact the body camera footage to the extent that it had. The agency had relied upon clause 12(1) of the FOI Act and the confidentiality section of the Emergency Management Act. The Ombudsman noted that the confidentiality section of the Emergency Management Act was more strict in its application than clause 6(1) of the FOI Act as it did not have an unreasonableness test.

District Council of Tumby Bay (2021/00210)

The applicant sought access to documents relating to the Port Spencer Project. In accordance with section 18(2a) of the FOI Act, the agency refused to deal with the access application, stating that it formed part of a pattern of conduct by the applicant that amounts to an abuse of the right of access.

The Ombudsman in his provisional determination highlighted the distinction between FOI processes and complaint processes, and commented that the applicant appeared to be confusing the two. The Ombudsman also noted that he had previously confirmed two past determinations of the agency to refuse to deal with applications in respect of the same applicant in 2014 and 2020. On both occasions, similar comments were made regarding the applicant’s repeated use of the FOI processes to prosecute complaints against the agency.

Despite these comments, the applicant’s response to the provisional determination commented on, and complained about, the agency’s perceived conduct at length. Not only did the applicant’s submissions not relate to the Ombudsman’s provisional determination, but the submissions in fact exhibited the very behaviour identified in the provisional determination as being problematic.

The Ombudsman confirmed the agency’s determination to refuse to deal with the access application.

Department for Health and Wellbeing (2020/04824)

The applicant sought access to documents relating to the total costs paid by the agency for legal services in relation to industrial matters. The agency initially requested that the applicant amend the scope of the application but failed to work with the applicant to do so. Accordingly, the matter became a double deemed refusal.

In its submissions to the Ombudsman, the agency advised that six documents had been identified as falling within scope of the access application. However, the agency later purported to issue a belated internal review determination to the applicant, stating that only one document was found to be within scope. The Ombudsman did not accept the agency’s revised views regarding scope and proceeded to consider all six documents initially identified.

The Ombudsman found that the agency failed to justify its reliance upon clause 6(1) noting that, insofar as individuals are named or referred to within the documents, the information relates to those people’s professional affairs rather than their personal affairs. The Ombudsman also considered it appropriate to comment on the conduct of the agency, in particular the agency’s failure to comply with section 39(7) of the FOI Act.

Department of the Premier and Cabinet (2020/02624)

The applicant sought access to documents relating to security sweeps and the discovery and acquisition of covert listening devices. The agency identified one document within the scope of the applicant’s request but submitted that only a small portion of the document fell within the scope of the access application. The Ombudsman advised his views that the FOI Act does not allow for a document to be partially out of scope. Rather, once a document has been identified as being within scope, access to that document may only be refused in accordance with section 20(4) of the FOI Act.

The Ombudsman encountered significant difficulties obtaining access to the document in issue as the agency was not willing to provide a copy of the document. After extensive discussion, the Ombudsman and agency reached an agreement that the Ombudsman would view the document in the presence of agency officials. Despite the Ombudsman’s view that the entire document was in issue, the agency only permitted access to the small portion it claimed to be within scope. The Ombudsman made multiple requests to view the entire document, none of which were successful.

In accordance with section 39(9) of the FOI Act, the Attorney-General advised the Ombudsman of her assessment of what the public interest requires in relation to the portion of document claimed to be within scope. With respect to the Attorney-General, the Ombudsman observed that it was not necessary to consider the public interest assessment noting that the first limb of the exemption clauses claimed had not been met. In relation to the balance of the document, noting that the agency failed to provide submissions specific to the rest of the document and refused to grant the Ombudsman access to same, the Ombudsman could only conclude that the agency had not justified its determination to refuse access to the balance of the document.

Environment Protection Authority (2021/00346)

The applicant lodged 14 separate access applications, 13 of which were identically worded but with different consecutive date ranges. The agency treated the 14 applications as one for the purpose of extending the time to deal with the applications in accordance with section 14A of the FOI Act. By determination dated 29 December 2020, the agency’s principal officer determined to extend the time within which the 14 applications were to be determined until 30 July 2021, an extension of six and a half months. The applicant sought an external review of the agency’s decision to combine the applications, and the extension of time imposed.

The Ombudsman advised that the agency’s decision to combine the applications is not a determination for the purposes of the FOI Act, and is therefore not reviewable, but may be relevant in considering the reasonableness of the length of the extension.

The Ombudsman was satisfied that the requirements of section 14A(1) were met, noting the agency’s estimation that the applications would capture approximately 900 documents and require in excess of 480 hours of staff time to deal with. In relation to the reasonableness of the extension, the Ombudsman considered a five month extension to be more appropriate than the agency’s determined six and a half months. The Ombudsman reached this conclusion noting that a five month extension of time would require the agency’s FOI officer to dedicate a little over half of their working time to dealing with the applications, an amount of work proportionate to the agency’s average annual FOI workload.

SA Forestry Corporation (2020/05758)

The applicant, a Senator for South Australia, sought access to documents relating to the international exportation of log by the agency from the Mount Lofty Ranges. Following a double deemed refusal, the agency purported to issue a belated determination identifying one document within the scope of the applicant’s request, but also providing the applicant with further information compiled specifically for the purpose of responding to the access application. In addition to seeking a review of the agency’s position that the document in issue is partially exempt, the applicant also requested that the Ombudsman verify the accuracy of the further information provided by the agency and conduct further searches for documents within scope. These issues were dealt with separately by the Ombudsman by way of a complaint file.

The agency initially submitted that portions of the document in issue are beyond the scope of the access application. The Ombudsman advised his views that the FOI Act does not allow for a document to be partially out of scope. Rather, once a document has been identified as being within scope, access to that document may only be refused in accordance with section 20(4) of the FOI Act. The agency advised in its response to the Ombudsman’s provisional determination that it did not object to this approach.

The agency further submitted the document in issue to be exempt pursuant to clauses 7(1)(c) and 16(2). The Ombudsman accepted that the document related to the commercial functions of the agency, but did not accept that disclosure would be contrary to the public interest. The Ombudsman also concluded that disclosure could not prejudice the competitiveness of the agency, noting that the agency ceded that it had no direct competition in relation to the specific commercial functions to which the document relates.

The Treasurer (2020/04757)

The applicant applied to the Treasurer for access to documents titled ‘Economic Impact of COVID-19’. The Treasurer found one document within scope and determined it was exempt in full, as the Treasurer considered that disclosure of the document would damage inter-governmental relations and that its disclosure would, on balance, be contrary to the public interest.  The applicant requested that the Ombudsman conduct an external review of the determination.

In the course of the external review, the Commonwealth Treasury submitted strong objections to disclosure, as did the Treasuries of multiple States and Territories. The submissions indicated that if the document were disclosed, the other Treasuries of Australia would be less willing to exchange information in future and that such a decline in willingness would cause damage to the relationship between the Commonwealth, States and Territories.

In considering the content of the document, the Ombudsman considered that there was a plausible factual basis for the potential damage to occur, which was particularly relevant in light of the ongoing need for co-operation between the States, Territories and Commonwealth in handling the COVID-19 pandemic. In contrast, whilst the Ombudsman recognised that there could be some potential benefit to the public in disclosing the content of the document, overall he considered that disclosure of the information would be of minimal benefit to the public interest of South Australia. Accordingly in light of the strong and clear objections, the Ombudsman was satisfied that disclosure of the document would, on balance, be contrary to the public interest and confirmed the Treasurer’s determination.