January hot FOI month in NSW ADT

Belying January's reputation for little action in the legal fraternity, the NSW ADT has so far this month handed down 7 FOI decisions and one privacy decision. Tribunal members were obviously keen to clean up some long standing matters - one decision (McGuirk v The Cabinet Office (2007) NSWADT 9) related to a matter heard 7 months ago.

Another decision is a clear illustration that the FOI and review processes available in NSW do not provide speedy resolution of requests for documents. There are plenty of examples on the record, but in Kiernan v NSW Police (2007) NSWADT 18, the process "worked" as follows:

• 10 January 2006 - FOI application lodged
• no determination made within required timeframe
• 2 February 2006 - application for internal review lodged
• no determination made within required timeframe
• 27 February 2006 - applicant lodges review application with ADT
• 12 April 2006 - ADT planning meeting - matter remitted to agency for determination
• 6 July 2006 - agency makes internal review determination
• 29 September 2006 - hearing on aspects of the request
• 16 January 2007 - ADT upholds the agency decision.

Judicial Member Pearson made no comment about the handling of the matter or any criticism of the agency.

Yet it is clear that the applicant took action to bring the matter to the Tribunal because of the agency's failure to comply with the legislated time frame for making a determination. The agency still took almost 2 months to make a determination after the Tribunal directed it to do so. This was 7 months after the application was lodged - the statutory timeframe is 21 days.

When provisions in an act that impose a statutory duty are ignored in this way, speedy complaint mechanisms need to be available.

And reviewers need to use whatever muscle they can to ensure agencies get the message and toe the statutory line. No comment in these circumstances doesn't assist the cause.