Ombudsman SA Annual Report 2009/2010 The Honourable President LEGISLATIVE COUNCIL Parliament House

The Honourable Speaker HOUSE OF ASSEMBLY Parliament House Adelaide

It is my duty and privilege to submit the South Australian Ombudsman’s 38th Annual Report for 2009-10 to the Parliament, as required by section 29(1) of the Ombudsman Act 1972.

Richard Bingham OMBUDSMAN

Level 5 East Wing Telephone 08 8226 8699 [email protected] 50 Grenfell Street Facsimile 08 8226 8602 www.ombudsman.sa.gov.au Adelaide SA 5000 Toll free 1800 182 150

1 Contents The Year in Review 3 Government Departments 7 Local Government 17 Other Authorities 30 Freedom of Information 40 About Ombudsman SA 55

Appendices 1. Financial Statement 57 2. Description of Outcomes - 58 Ombudsman Jurisdiction 3. Description of Outcomes - 60 FOI Jurisdiction 4. Speeches & Staff Development 61

2 The Year In Review

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Highlights Review of Integrity Structures Based on recent years’ experience, Workload On 5 May 2010, the Attorney General, this change will result in approximately 50 fewer complaints 2009-10 has been a busy and Hon John Rau MP, made a Ministerial per annum to Ombudsman SA. rewarding year for Ombudsman SA. Statement to Parliament in which

In particular: he foreshadowed a review of the organisations which comprise South Ombudsman Investigations · We received 8 834 approaches Australia’s public integrity system. My Section 22 confidentiality provision from members of the public. 5 635 office is one of those organisations, I observed in my Annual Report last (approximately 64 per cent) were and I made a submission to the year that the confidentiality provision dealt with by the provision of advice review. in section 22(1) of the Ombudsman or referral to a more appropriate Act prevents me from informing the body. I welcome the opportunity to reassess Parliament or relevant authorities the linkages and relationships · From those approaches we about a complaint, unless and until a between the public integrity bodies considered 3 199 matters in total - report is published. in this State, and to consider some 2 982 Ombudsman complaints and legislative and other initiatives which 217 FOI matters. This compares Over the past year this has proven would assist effective integrity to the 2 543 matters considered to be a real impediment to my work, oversight. I await the results of the in 2008-09, made up of 2 322 as it prevents me from providing review with interest. Ombudsman complaints and 221 information to others who have a FOI matters. legitimate and reasonable interest in Complaints about health an investigation. registration bodies Overall this represents a 25 per cent increase in matter numbers over the At the end of 2009-10, Ombudsman In my view it would be appropriate to previous year. Complaints about SA lost jurisdiction over a number modify the confidentiality provision Government departments increased of medical professional registration to provide a general discretion to by 37 per cent, those about local bodies which ceased to exist when the Ombudsman to inform others in government by 10 per cent, and those the Australian Health Professional the public interest about a complaint about other authorities by 65 per cent. Regulation Authority (AHPRA) came which does not proceed to a formal into existence under the national report. I am hopeful that this issue · In December 2009, we received registration scheme agreed by the can be addressed through the a reference from the Legislative Council of Australian Governments. Attorney General’s review of public Council to undertake a major integrity structures. investigation into issues affecting the Under the scheme, complaints which . are not resolved by AHPRA may City of Charles Sturt - be made to the National Health Parliamentary referral These workload demands have been Practitioner Ombudsman. The NHP A substantial part of my office’s met from within our existing budget Ombudsman was created as an investigative workload over the past allocation of $1.8 million, as described independent entity, working under year has involved the Legislative in Appendix 1. As a result the office the Commonwealth Ombudsman Council reference regarding the City has been working under some Act 1976, as amended by the Health of Charles Sturt. My office made pressure, and I record my thanks to Practitioner Regulation National Law good progress with the investigation, staff of the office for their efforts. Regulation 2010 for the purposes of with the vast majority of necessary the scheme.

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information having been collected could investigate under its Ministerial That case was one of the rare and most witnesses having been Direction. instances where an agency ultimately interviewed. has been able to present clear and However, the fact that my office might persuasive reasons for justifying However, on 16 June 2010 I agreed believe that a complaint would not refusal of access to information to suspend the investigation, pending amount to criminal conduct does not under the public interest test in the the resolution of Supreme Court affect our obligation to refer it to the internal working document exemption. action by the City of Charles Sturt. ACB. The arguments were appropriately The action challenged my jurisdiction targeted to specific information in to conduct the investigation on a Freedom of Information the document, and they were not number of bases, and alleged that I I noted in my Annual Report last generalised and speculative. had exceeded my jurisdiction by not year that I intended to publish permitting elected members of the appropriate FOI determinations on Report against the 2009-10 council to be legally represented at the Ombudsman office website. Business Plan their interviews. Publication of FOI determinations on In 2009-10, the Ombudsman SA our website is now a regular part of Business Plan identified three priority At the time of writing the matter our work, and I have abbreviated the initiatives. In accordance with these remains before the Court, with case summaries in this Annual Report initiatives: mediation intended to be conducted. accordingly. The investigation will be the subject · We successfully completed the of a separate report to the Legislative Another significant initiative has implementation of a new case Council in due course. been the regular presentation by management system, in partnership Ombudsman SA staff of one module with Justice Business Services Public interest disclosures in the accredited training program for and other small agencies in the As a potential recipient of public FOI officers, which is co-ordinated by Attorney General’s Department. interest disclosures under the the State Records Office. To complement this system, we Whistleblowers Protection Act 1993, completely reviewed our office I have an obligation to refer them to In relation to FOI determinations, procedures, and commenced a the Anti-Corruption Branch of SA again this year some agencies project to fully document all our Police if they may involve fraud or have sought to rely on generalised policies. corruption. 1 speculation about the adverse consequences of disclosure of a · We arranged a one week specialist Over the past year Ombudsman SA document, in seeking to refuse an training course for all staff in has tended to refer more complaints FOI application. In my view this is investigative practices, and we to the ACB than in the past. It is not not sufficient, and agencies need continued regular training in areas uncommon for the ACB to respond - to provide specific reasoning for such as administrative law and quite properly - that whilst a disclosure their determinations, based on the statutory interpretation. may meet the definition under the Act circumstances and contents of the of ‘public interest information’ that actual documents. · We commenced planning for relates to fraud or corruption, it could enhanced accessibility and outreach not amount to criminal conduct and However, I draw particular attention services. I am keen to ensure that thus is not something that the ACB to an external review involving the this occurs in collaboration with other Environment Protection Authority. integrity and complaints agencies,

1 See section 5(5) of the Whistleblowers Protection Act 1993

4 particularly those associated with Statistical information 2010-11 Business Plan the Attorney General’s Department, The new case management system, Ombudsman SA’s Business Plan since I believe this is more relevant and revised office procedures for 2010-11 identifies three priority for the community, and more cost incorporating target timeframes for initiatives: effective. completion of files, commenced operation on 15 March 2010. · To respond appropriately to the Other significant achievements in Information from the new system outcomes of the Attorney General’s 2009-10 included: will provide a more complete picture review of public integrity structures of our work, and future reports will · We conducted six regional seminars provide further detail on matters · To commence a program of systemic for local government on their such as timeframes within which audits responsibilities under the FOI Act investigations are completed. · To complete documentation of all · We introduced an internship program However, as this report covers a office policies and business rules. for law students from the University transitional period, some readers may of Adelaide and Uni SA. This has have difficulty identifying information I intend to report on progress in these proven to be very beneficial for both which they seek because some priorities in the Annual Report next the office and the students involved. elements of the statistical reporting year. framework has changed. This · We introduced new branding and an concerns particularly the classification enhanced website for Ombudsman of matters as Ombudsman complaints, SA the identification of issues within complaints, and the introduction of Over the past year we continued to new outcome categories. receive administrative support from the Attorney General’s Department, This report seeks to provide and I record my appreciation to explanations of changes where the Chief Executive Officer and his appropriate, and Appendices 2 and officers. 3 provide definitions of outcome categories. If you would like further explanation, please contact my office and we will be happy to assist.

Richard Bingham OMBUDSMAN November 2010

5 Summary Statistical Information

Ombudsman Jurisdiction 2007-08 2008-09 2009-10

Government Departments Local Government Other Authorities Total Government Departments Local Government Other Authorities Total Government Departments Local Government Other Authorities Total Open Cases Cases open at beginning of period 68 83 29 180 65 93 44 202 65 64 26 155 Cases opened during period 1365 594 376 2335 1148 624 348 2120 1569 685 573 2827 Total cases open 1433 677 405 2515 1213 717 392 2322 1634 749 599 2982

Less Closures Advice Given 450 293 174 917 525 350 189 1064 609 315 273 1197 Alternate remedy another body 35 12 31 78 Conciliated 2 2 Declined 35 21 15 71 50 64 41 155 90 40 34 164 Full Investigation 9 10 4 23 6 26 6 38 9 20 29 S25 Finding/Mistake of Law 1 1 S25 Finding/Unlawful 2 2 S25 Finding/Unreasonable 3 2 1 6 S25 Finding/Wrong 1 1 Not substantiated 116 52 32 200 Ombudsman comment warranted 1 1 2 Outside of jurisdiction 26 6 12 44 9 9 8 26 29 9 14 52 Preliminary Investigation 821 245 144 1210 545 194 122 861 376 124 77 577 Referred back to agency 169 71 53 293 Resolved with agency cooperation 95 25 13 133 Transferred to WorkCover Ombudsman 2 2 Withdrawn 27 12 12 51 21 14 11 46 41 32 20 93 Total Cases Closed 1368 587 361 2316 1156 657 379 2192 1575 706 549 2830 Still Under Investigation 65 90 44 199 57 60 13 130 59 43 50 152

FOI Jurisdiction 2007-08 2008-09 2009-10

Open Cases Cases open at beginning of period 50 54 37 Cases opened during period 214 167 180 Total cases open 264 221 217

Less Closures FOI advice given 145 92 106 FOI investigation 14 17 4 FOI review 53 84 29 FOI Application for Review withdrawn by applicant 9 FOI Application settled during review 3 FOI Determination confirmed 6 FOI Determination reversed 5 FOI Determination revised by Agency 2 FOI Determination varied 8 Transferred to WorkCover Ombudsman 1 Declined 1 2 Total Cases Closed 212 194 175 Still Under Investigation 52 27 42

Note: Explanations of the FOI and Ombudsman outcomes are in Appendices 2 and 3 respectively.

6 Government Departments

Department for Correctional disadvantaged persons are not If, however, you satisfy me that payment of Services prevented from exercising rights fees or charges would cause you financial hardship I must waive or reduce the fees Investigation into FOI fees and under this Act by reason of financial hardship’. and charges. In order for me to determine charges required from prisoners whether you are eligible to have the fees Complaint summary and charges reduced or waived based Regulation 5 of the Regulations on the grounds of financial hardship, A prisoner complained to my office provides that an agency must waive please provide any additional information/ after the department asked him to or remit the fee or charge where comments to support your claim. For pay a fee to access documents under the applicant satisfies the agency example, information about your income the FOI Act. Preliminary inquiries that they are a ‘concession card and expenses. revealed that the department had holder’ or ‘that payment of the fee or decided to charge the fee because charge would cause [them] financial The department’s willingness to the average balance in the prisoner’s hardship’. cooperate with my office resulted in a access account exceeded $200 over good outcome being achieved. a two-month period. A prisoner is not automatically eligible for waiver or remission of FOI fees Department for Correctional Ombudsman investigation or charges. Rather, it is for each Services Although the prisoner subsequently prisoner to satisfy the agency of their Unreasonable refusal to pay for withdrew his complaint, given the financial hardship if they seek waiver prescribed reading glasses or remission. potential impact on prisoners as Complaint summary a group I decided to conduct an own initiative investigation of the To assess whether or not payment The complaint was about the refusal department’s practices with respect to of a fee or charge would cause a by a prison to provide prescription FOI fees and charges under sections prisoner (or any other applicant) reading glasses to a prisoner on 13(2) and 18(1a) of the Ombudsman financial hardship within the meaning remand. The complainant advised Act. of regulation 5(b) of the Regulations, that: the particular circumstances of Sections 13(c) and 29(2)(b) of each case must be considered. · he had been sent to a private the FOI Act require applications An applicant may have access to optometrist by the SA Prison Health for access and internal review, sufficient funds to pay a fee or Service. The optometrist prescribed respectively, to be accompanied charge, and yet doing so may cause stronger reading glasses but he had by ‘such application fee as may be them financial hardship within the been advised that Prison Health prescribed’. meaning of regulation 5(b). does not supply or pay for glasses.

Section 53(2)(a) of the FOI Act states Outcome and opinion · the prison had denied his request that it pay for the new glasses that the Freedom of Information Following a meeting with, and input because he was not a sentenced (Fees and Charges) Regulations from, representatives of my office, prisoner. 2003 ‘must provide for such waiver, the department agreed to include reduction or remission of fees as the following paragraph in letters to may be necessary to ensure that applicants requesting payment of an application fee:

7 · he had been on remand for more it acted unreasonably in deciding its Department for Families and than one year, was due to attend response to the evaluation. Communities court in six weeks time and expected Unlawful disclosure of personal to be on remand for a further six to Ombudsman investigation affairs under the FOI Act eight months. After reviewing the file and In last year’s annual report I outlined some further submissions by the a matter involving release by the The department advised that: complainant, I agreed to conduct a full Department for Families and investigation of the complaint. Communities (Families SA) of · its normal practice is to fund information concerning the personal optometry appliances for sentenced Under section 12 of the Education affairs of a family member to a prisoners only. A Draft Guideline on Act 1972, the responsibility for the previous family member. I found that Prisoner Access to Specialist Health maintenance of a proper standard because release had occurred without Services proposes that eligibility for of efficiency and competency in prior consultation with the first family optometry services and appliances the teaching service rests with member, it was contrary to law under be limited to prisoners with a the Director General. In my view, the Ombudsman Act. sentence of six months or more. whilst a principal has responsibility for the operations of a school, This year I dealt with a similar · as the complainant was due to that responsibility is subject to the occurrence, albeit it must be said that appear in court in a short time, the overriding obligations of the Director the ramifications in this matter were decision not to supply his glasses General, and hence the department. far less serious than those detailed would be reviewed after that date. last year. I concluded that there was no Ombudsman investigation evidence to support a claim that the Complaint summary The complainant provided further department interfered improperly in A and B were once friends. A information which my office the decision-making process about was staying with B at a time when communicated to the department. the Family Unit, nor that the principal something particularly bad happened It then advised that a prison social was directed not to be involved with in A’s life. The relationship with A worker had obtained an undertaking enrolments for the Family Unit. and B subsequently soured. In due from a charity to pay half the cost of course, A obtained access, under the new glasses for the complainant. I concluded also that the actions the FOI Act, to all information about of the department in editing the A held by Families SA, of which Outcome and opinion evaluation report were not wrong, there was a considerable amount. but it appeared to me that the issues Whilst the issue was resolved through Amongst the many documents were could have been handled better. The the assistance of the charity, my several discrete references to B. B lack of transparency contributed informal view was that given the time became aware of the release of to the suspicion and tension which the complainant had spent on remand, the information as a result of being surrounded the decision-making the department should pay the full contacted by A via an internet social process about the future of the Family cost of the new glasses prescribed networking site. B was not contacted Unit, notwithstanding the efforts for him. by Families SA prior to Families of the department to explain the SA determining to release the situation to the school community. Department of Education and information. Childrens Services I also found that the department’s Improper interference in school- Ombudsman investigation decision about the model to based decisions be implemented for the future At least initially, there was debate Complaint summary administration of the Family Unit between my office and Families SA The complaint alleged that the was not unreasonable in the as to whether the references to B department’s head office had circumstances. actually concerned the ‘personal improperly interfered in decisions by affairs’ of B under the FOI Act. I the principal of the Rose Park Primary Outcome and opinion will not divulge the nature of the references here as I agreed to a School about the future operation I concluded that the department had request by Families SA that I not of the Family Unit, which was based not acted in a manner which was divulge the nature of the references in on the school’s property and was unlawful, unreasonable or wrong my report under the Ombudsman Act. managed by the school. In particular, within the meaning of section 25(1) it alleged that the department had of the Ombudsman Act. improperly changing the enrolment Whilst this put B at a disadvantage in terms of understanding my report, I practices for the Unit. I note that the complainant sought acceded to the request because: the release of the various versions of It further alleged that the department the evaluation report under FOI, and · the information not only concerned undertook to have an independent this issue came to my office under the personal affairs of B but also the evaluation of the Family Unit external review. The result of this personal affairs of A; conducted, that it improperly edited review is outlined in the FOI section of the report of that process, and that this Annual Report.

8 · Families SA strongly advised that if Department of Further misled the complainant’s daughter to B applied for the information under Education, Employment, Science believe she would have completed the FOI Act, the information would and Technology (TAFE SA) her course without the compulsory be subject to an exemption claim by Unreasonable refusal to issue subject. Families SA; and the complainant’s daughter her parchment. In my view, this failure was · B had the option of making an unreasonable, within the meaning of Complaint summary application for the information under section 25(1)(b) of the Ombudsman the FOI Act. If this happened, I may The complaint was lodged on behalf Act. be called upon in due course to of the complainant’s daughter. externally review a determination Department for Transport, of Families SA not to release the The complainant alleged that TAFE Energy and Infrastructure SA misled her daughter to believe information. If that occurred, it would Unreasonable failure to register a she had completed the requirements be preferable in the circumstances vehicle for me to make decisions about the of her IT course, only to be advised Complaint summary exemption status of the information prior to lodging her request form to after all parties (A, B and Families obtain her parchment that she had not The complainant sought to engineer SA) had been given the opportunity completed a compulsory subject. The and build a special off-road vehicle, to address me on the relevant issues. complainant requested TAFE SA to as a prototype for a production run of issue the parchment anyway. similar vehicles. He sought approval Outcome and opinion of the prototype for registration and The complainant also alleged that road use, for which purpose the It was my view that three references the course was falsely advertised, vehicle was required to satisfy the to B contained information concerning as the compulsory subject was not relevant design rules. the personal affairs of B, two of which offered to external ‘IT Flex’ students fall squarely within B’s ‘personal when her daughter enrolled in the The department initially approved qualities or attributes’, whether course. Further, the lecturer made no the project in principle in 2002, but real or perceived, and/or ‘personal reference to the compulsory subject in it subsequently maintained that the relationships’ (see the inclusive her daughter’s study plan. vehicle failed to meet the required definition of ‘personal affairs’ in vehicle emission standards and thus section 4 of the FOI Act). Ombudsman investigation could not be approved for registration. The consultation provision in TAFE SA acknowledged that there The complainant constructed a section 26 of the FOI Act applies to was no evidence that the student was second vehicle before the prototype documents that contain ‘information informed she needed to complete the had satisfied the registration concerning the personal affairs of any compulsory subject through a method requirements. person (whether living or dead)’. Prior other than IT Flex in order to complete to giving A access to the information the qualification. Her enrolment was Ombudsman investigation in the three references, the agency uncommon in seeking to complete did not take any steps to obtain the full qualification exclusively via It appeared to me that from the B’s views as to whether or not the external/on line modes of training, commencement of the project documents were exempt documents. and other students had enrolled in the in 2002, the complainant and compulsory subject as one of their the agency had had different It was therefore my opinion that the face to face classes. understandings about the level of release of the information without compliance required in relation to prior consultation with B was a breach TAFE SA advised the complainant vehicle emissions. It also appeared of section 26(2) of the FOI Act, that they were unable to issue her that the Statement of Requirements and therefore contrary to law under daughter her parchment, as she for the vehicle issued annually by the section 25(1)(a) of the Ombudsman had not completed the compulsory department from 2002 to 2007 failed Act. subject. to adequately deal with the issue.

Under section 25(2) of the Outcome and opinion The prototype’s apparent failure to Ombudsman Act, I recommended In my view, the decision not to award comply with the relevant Australian that Families SA provide B with an the parchment was reasonable. Design Rule was compounded by apology, and that the agency deal The student did not complete the the department not being able to promptly with any application B may compulsory subject and for TAFE test it, because its mass weight was elect to make under the FOI Act. SA to issue a parchment would have significantly less than that for which been in breach of the requirements the testing equipment was designed. of the Australian Quality Training The department held the view that it Framework. was always open to the complainant to have the vehicle tested elsewhere. However, I formed the view on the facts of the case that TAFE SA’s failure to provide information had

9 Outcome and opinion may not necessarily understand that Ombudsman investigation Following my investigation, the they are falsifying information when I confirmed with the department that department acknowledged the unique applying for a licence. the Register of Motor Vehicles is not nature of the project and its history, a register of ownership or a system and undertook to grant an exemption Outcome and opinion whereby legal title to a motor vehicle for the prototype to enable it to be The department conceded that if it may be ascertained or transferred. registered. However, the department had been processing the application required that all subsequent vehicles correctly, then it would never have However, it appeared to me that the constructed must satisfy the relevant been issued without the complainant Registrar had been put on notice design rules. first supplying a medical report. In that some information in the former light of this, and irrespective of the partner’s second application required In my view, the complainant was hasty fact that the applicant failed to provide checking, and if the Registrar’s in constructing a second vehicle truthful information on his application, existing statutory powers had been when it was clear that the prototype he was provided with a full refund. exercised, the difficulty which would not comply with the design rule More importantly the policy regarding occurred would have been avoided. relating to emissions. The department the processing of these applications In particular, the Registrar could have was clear in its communication with was refined and all staff were exercised the discretion to refuse the complainant on this point, and I instructed of these changes. registration pending verification of found that there was no administrative information provided by an applicant, error. The refund of money to the or on the basis that it was believed complainant in a sense became that information in the application was Department for Transport, the lesser issue. The fact that the inaccurate. Energy and Infrastructure department has now better processes Unreasonable refusal to grant full in place to stop unsuitable persons Outcome and opinion refund being issued with a licence was the Whilst the decisions taken were in major remedy achieved from this accordance with the law, I determined Complaint summary investigation. that the action of the department in The complainant was not a current accepting the subsequent application drivers licence holder and visited a Department of Transport, Energy from the former partner was local department office to reapply and Infrastructure unreasonable. for his licence. The application was Incorrect registration of motor processed and he was provided with vehicle Accordingly, I recommended that the a licence. department should reimburse the Complaint summary complainant’s legal costs, and as a Upon further checks by the The complainant was the owner of gesture of goodwill, the registration department it was identified that a vehicle, which her former partner fee paid by her in connection with the the complainant’s licence had been re-registered into his own name after original application. cancelled due to a medical condition. the breakdown of their relationship. The department required him to On being told that the vehicle was The department responded by supply a new medical report from no longer registered in her name, the reimbursing the funds, and by a medical practitioner, which he complainant applied to change the conducting a review of the Motor obtained. The medical report did not registration back into her name, and Vehicles Act 1959 and associated support his application and so the paid a necessary fee. In so doing, policies relating to the registration of department cancelled the newly re- she sought legal advice and incurred motor vehicles when the Registrar of issued licence. costs. Motor Vehicles has notice that there are competing claims for ownership of The complainant then decided that Her application included a completed a vehicle. he would seek a refund of the monies form entitled ‘Application to Amend he spent obtaining the licence. The a Registration or Licence Record’ It also consulted with several department refunded a small amount which noted: ‘This vehicle is not to be Customer Service Centres and of the money but kept the remainder registered in [the former partner’s] determined that ownership to cover administrative costs. The name due to legal proceedings’. disputes arising from New Owner complainant felt that the full amount She was advised that this would Re-registration applications were was owed to him. be effective to prevent the agency infrequent and generally had relatively from accepting any subsequent little impact. I was advised that a fact Ombudsman investigation applications for registration made by sheet concerning ownership issues Whilst the complainant failed to the complainant’s former partner. and general advice to the public declare on his licence application that would be created, and that this should he had any medical history relevant Subsequently, while not being the help to avoid the creation of false to the application, the department registered owner of the vehicle, the expectations as to the power of the acknowledged that its administrative former partner changed the vehicle Registrar, as occurred in this case. checking of such applications was registration back into his name. deficient. Applicants, particularly those with mental health issues,

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Department of Treasury and suggestions for providing additional Following some encouragement from Finance - Revenue SA information about land tax refund my office, the department advised me Administrative practices - land tax entitlements. in May 2010 that the well had been entitlements backfilled and replaced. Department of Water, Land and Complaint summary Biodiversity Conservation Outcome and opinion I received a complaint regarding Failure to enforce requirement to In this case, the complainant’s action Revenue SA’s failure to refund land backfill a leaky well brought to the department’s attention tax that was paid at settlement in a well that was leaking, and thus 2003. I found that the complaint was Complaint summary assisted it to meet its obligation to not sustained, and the complainant The complainant formed the view protect the state’s water resource. In was notified of the outcome. that excessive salinity in his well my view, the department’s processes However, in my view the complaint may have been caused by leaking should reflect and acknowledge the raised a question about whether from an adjoining landowner’s well, benefit in such matters being brought taxpayers were being fully informed of and he sought the assistance of the to its attention by members of the their entitlements. department to address the issue. public. Over the following 18 months he Ombudsman investigation became dissatisfied with the lack of In my view, the delay in this case response from the department, and he I conducted a preliminary investigation was unreasonable and wrong, within complained to my office. on my own initiative. I suggested to the meaning of section 25(1) of the Revenue SA that the content of its Ombudsman Act. Land Tax Notice of Principal Place of Ombudsman investigation Residence Exemption letter should be Under section 144 of the Natural reviewed, to consider the inclusion of Resources Management Act 2004, additional information about land tax the occupier of land on which a well is refund entitlements. situated must ensure that the well is properly maintained. Revenue SA accepted the suggestion, but considered that rather than amend In this case, the leakage from the the letter itself it would be preferable adjoining landowner’s well originally to include a condensed copy of the came to the attention of the Guide to Land Tax Legislation with the department when the complainant letter. It also noted that the revised raised it in September 2007. It practice would commence in July was confirmed in May 2009, when 2010 when its next ‘housekeeping’ a drillhole assessment of the well process commenced. was completed. In December 2009, the department sought voluntary Outcome and opinion compliance by the adjoining I was pleased to note the positive landowner, and advised him that manner in which Revenue SA he was eligible for grant funding to addressed this matter and its assist. willingness to consider my

11 Government Departments Complaints Received 1 July 2009 to 30 June 2010

Attorney-General’s Department 19 1.2% Department for Correctional Services 601 38.3% Department for Environment and Heritage 9 0.6% Department for Families and Communities 121 7.7% Department of Education and Children’s Services 58 3.7% Department of Further Education, Employment, Science & Technology 16 1.0% Department of Health 17 1.1% Department of Planning and Local Government 4 0.2% Department of Primary Industries & Resources 11 0.7% Department of the Premier and Cabinet 11 0.7% Department of Trade and Economic Development 2 0.1% Department of Transport, Energy and Infrastructure 195 12.4% Department of Treasury and Finance 55 3.5% Department of Water, Land and Biodiversity Conservation 8 0.5% Electoral Commission of 6 0.4% Environment Protection Authority 9 0.6% SA Housing Trust 252 16.1% SA Police 3 0.2% SA Water Corporation 172 11.0% Total 1569 100%

12 Government Departments Complaints Received: Issues 1 July 2009 to 30 June 2010

(Other) Department for Correctional Services Department for Families and Communities Department of Energy & Transport, Infrastructure SA Housing Trust SA Water Corporation Total Percentage Abuse or Assault/Physical/By other detainees 1 1 0.1% Abuse or Assault/Physical/By staff 3 3 0.2% Abuse or Assault/Verbal/Harassment/Threats by staff 2 2 0.1% Access to educational services 2 1 3 0.2% Access to information 6 1 1 8 0.6% Access to treatment 1 3 4 0.3% Administration 46 9 24 46 13 18 156 11.1% Administrative practice/policies 46 17 32 66 11 20 192 13.7% Advice 1 1 2 0.1% Approvals 5 5 0.4% Case review 1 1 0.1% Citizens’ Rights 1 1 2 4 0.3% Communication 2 1 1 3 7 0.5% Complaint Handling/Delay 7 4 3 2 8 1 25 1.8% Complaint Handling/Inadequate reasons 1 1 2 4 0.3% Complaint Handling/Inadequate remedy 1 5 2 8 0.6% Complaint Handling/Inadequate processes 6 4 2 4 9 2 27 1.9% Complaint Handling/Wrong conclusion 1 1 2 0.1% Conduct 4 1 5 0.4% Conduct/Misconduct 1 1 0.1% Correspondence/Communications/Records/ Delayed no response 4 4 1 9 0.6% Correspondence/Communications/Records/ Incorrect 1 1 1 3 0.2% Correspondence/Communications/Records/ Withholding of information 1 1 0.1% Correspondence/Communications/Records/ Wrongful disclosure of information 1 1 0.1% Curriculum issues 1 1 0.1% Custodial Services/Canteen 4 4 0.3% Custodial Services/Cell conditions 6 6 0.4% Custodial Services/Clothing 5 5 0.4% Custodial Services/Educational Programs 3 3 0.2% Custodial Services/Employment 3 3 0.2% Custodial Services/Food 2 2 0.1% Custodial Services/Health related services 12 12 0.9% Custodial Services/Prisoner accounts 3 3 0.2% Custodial Services/Prisoner mail 5 5 0.4% Custodial Services/Property 21 21 1.5% Custodial Services/Recreation programs & services 1 1 0.1% Custodial Services/Rehabilitation programs 2 2 0.1% Custodial Services/Telephone 2 2 0.1% Daily Routine 114 114 8.1% Discipline 2 3 5 0.4% Double up cells 11 11 0.8% Duty of care 3 2 2 1 8 0.6% Employment 4 4 0.3% Fees/charges/levies 12 1 3 6 22 44 3.1% Financial assistance 1 1 0.1% Financial issues 14 5 3 9 5 17 53 3.8% Financial/Procurement/Facilities/Compensation/ Damage/Property 1 2 3 0.2%

13 Financial/Procurement/Facilities/Debts 1 1 2 7 11 0.8% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Cost of use 1 1 2 0.1% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Denial of use 1 1 0.1% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Fencing 1 1 0.1% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Inadequate 2 1 3 0.2% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Sale/Lease 1 1 0.1% Financial/Procurement/Facilities/Facilities owned/ Controlled by Authorities/Unsafe condition 1 1 0.1% Financial/Procurement/Facilities/Procurement by Agencies/Late payment 1 1 0.1% FOI Practices and procedures 1 1 0.1% FOI advice 1 1 0.1% Funding 1 1 2 0.1% Health 1 1 2 4 0.3% Home Detention 7 7 0.5% Housing 122 122 8.7% Land use 1 1 0.1% Leave 5 5 0.4% Mail 4 4 0.3% Medical 3 8 11 0.8% Officer misconduct 3 12 5 3 23 1.6% Ordinances, Regulations, By-laws - Failure to enforce 1 1 2 0.1% Other 50 1 3 3 57 4.0% Planning and development 1 1 0.1% Prison Management/Discipline/Security/Daily regimen 3 3 0.2% Prison Management/Discipline/Security/ Discipline/ Management 5 5 0.4% Prison Management/Discipline/Security/Drug testing 3 3 0.2% Prison Management/Discipline/Security/ Protection 2 2 0.1% Prison Management/Discipline/Security/Transport 3 3 0.2% Prison Management/Discipline/Security/Visits 5 5 0.4% Prison Records/Official Correspondence/Incorrect 1 1 0.1% Property 68 68 4.8% Punishment 9 9 0.6% Quality of treatment 1 1 2 4 0.3% Rates and charges 1 3 2 23 29 2.1% Record keeping 1 1 2 0.1% Regulation and Enforcement/Complaint handling 1 1 0.1% Regulation and Enforcement/Enforcement Action/ Excessive 2 2 1 5 0.4% Regulation and Enforcement/Enforcement Action/ Insufficient 3 1 4 0.3% Regulation and Enforcement/Enforcement Action/ Unfair 2 1 3 0.2% Regulation and Enforcement/Infringements/ Unreasonably issued 1 1 0.1% Regulation and Enforcement/Inspections 1 1 1 3 0.2% Regulation and Enforcement/Licensing/ Conditions 1 2 3 0.2% Regulation and Enforcement/Licensing/Refusal 2 2 0.1% Regulation and Enforcement/Licensing/Renewal 4 4 0.3% Regulation and Enforcement/Complaint handling 1 1 0.1%

14 Regulation and Enforcement/Fees 1 1 1 3 0.2% Revenue Collection/Land Tax 1 1 2 0.1% Roads 1 1 0.1% Roads and Traffic/Licensing/Conditions 1 1 0.1% Roads and Traffic/Licensing/Medical test 1 1 0.1% Roads and Traffic/Registration/Fees/Charges 2 2 0.1% Roads and Traffic/Charges/Fines 1 1 0.1% Roads and Traffic/Road Management 1 1 2 0.1% Security 1 1 0.1% Segregation 1 1 0.1% Sentence Management/Parole 2 2 0.1% Sentence Management/Placement/Location 5 5 0.4% Sentence Management/Transfers 5 5 0.4% Services 1 4 15 3 1 24 1.7% Service Delivery/Assessment 2 2 0.1% Service Delivery/Conditions 1 1 1 1 4 0.3% Service Delivery/Eligibility for services 1 2 2 1 6 0.4% Service Delivery/Failure to Act/Provide 3 1 3 2 15 4 28 2.0% Service Delivery/Fees and Charges 1 2 1 7 11 0.8% Service Delivery/Financial assistance 1 1 2 0.1% Service Delivery/Quality 4 2 4 1 1 12 0.9% Service Delivery/Termination of services 1 2 3 0.2% Transfers 58 58 4.1% Transport 2 2 0.1% Trees 2 1 3 0.2% Visits 2 2 0.1% Work and education 6 6 0.4% Total 198 549 100 185 223 145 1400 100%

Note: Issues which appear as shaded lines relate to complaints finalised before 15 March 2010, when the new case management system commenced operation. Those appearing in unshaded lines relate to complaints finalised after that date. The unshaded issues will appear in future reports.

15 Government Departments Complaints Completed 1 July 2009 to 30 June 2010

Attorney-General’s Department 17 1.1% Department for Correctional Services 601 38.1% Department for Environment and Heritage 9 0.6% Department for Families and Communities 124 7.9% Department of Education and Children’s Services 59 3.7% Department of Further Education, Employment, Science & Technology 17 1.1% Department of Health 14 0.9% Department of Planning and Local Government 2 0.1% Department of Primary Industries & Resources 12 0.8% Department of the Premier and Cabinet 12 0.8% Department of Trade and Economic Development 2 0.1% Department of Transport, Energy & Infrastructure 199 12.6% Department of Treasury and Finance 55 3.5% Department of Water, Land and Biodiversity Conservation 8 0.5% Electoral Commission of South Australia 6 0.4% Environment Protection Authority 13 0.8% SA Housing Trust 252 16.0% SA Police 2 0.1% SA Water Corporation 171 10.9% Total 1575 100%

Government Departments Complaints Completed: Outcome 1 July 2009 to 30 June 2010 Other Department for Correctional Services Department for Families and Communities Department of Energy & Transport, Infrastructure SA Housing Trust SA Water Corporation Total Percentage Advice given 99 176 77 78 108 73 611 38.8% Alternate remedy available with another body 3 13 13 3 1 2 35 2.2% Conciliated 1 1 2 0.1% Declined 11 24 5 16 14 10 80 5.1% Declined/No sufficient personal interest or not directly affected 2 2 1 5 0.3% Declined/Trivial, vexatious, etc 1 1 1 3 0.2% Declined/Withdrawn by complainant 1 1 1 3 0.2% Determination 1 1 0.1% Full investigation 4 3 1 8 0.5% Not substantiated 17 44 3 17 18 17 116 7.4% Ombudsman comment warranted 1 1 0.1% Outside of Jurisdiction 8 8 2 5 1 1 25 1.6% Out of Jurisdiction/Agency not within jurisdiction 2 1 3 0.2% Out of Jurisdiction/Judicial body 1 1 0.1% Out of time 1 2 3 0.2% Preliminary investigation 37 207 8 47 49 26 374 23.7% Referred back to agency 31 57 5 13 36 27 169 10.7% Resolved with agency cooperation 5 53 5 8 12 12 95 6.0% S25 Finding/Unreasonable 3 3 0.2% Withdrawn by complainant 6 9 2 6 11 3 37 2.3% Total 226 601 124 199 252 171 1575 100% 14.4% 38.2% 7.9% 12.6% 16.0% 10.9%

Note: See Appendix 2 for definitions of outcomes

16 Local Goverment

Alexandrina Council Technical Requirements for the Legal · could not locate the originals Failure to obtain Traffic Impact Use of Traffic Control Devices, this did of some documents, which had Statement not equate to a TIS. apparently been scanned and copies provided to him. Complaint summary I suggested that councils should The complainant objected to the have in place internal processes Ombudsman investigation installation of a traffic control device (such as checklists) to ensure that The first part of the complaint was to prevent a right hand turn from a key steps such as public notification, quickly resolved, as the council agreed Strathalbyn street, and alleged that consultation and the preparation to allow the applicant to inspect those the council had not followed the of TIS’s are completed prior to originals it still had. relevant provisions of the Road Traffic installation of traffic control devices. Act 1961 (the RT Act) in installing it. The second part of the complaint was more problematic, as handwriting After examining that issue, I Complaint following FOI external on one original was very faint on the commenced an own initiative review scanned copy and moreover, a part investigation into a related matter. Complaint summary of the document apparently did not survive the scanning process at all. Ombudsman investigation My predecessor conducted a long running external review under the FOI In relation to the original complaint, Outcome and opinion I concluded that the council was not Act in which the complainant sought Bearing in mind the meaning of required to follow section 32 of the access to all documents arising from ‘official records’ in section 3(1) of RT Act in prohibiting the right hand some incidents between him and the the State Records Act 1997 (the turn, as it was reasonable to argue council. My predecessor determined SR Act) and item 12.16.2 of the that a road ‘closure’ was not effected that he should have access to some, General Disposal Schedule 20 for within the meaning of the section. but not all, documents sought. Local Government Records in South Australia (third edition), I concluded However, it appeared to me that prior On his original application for access that some of the documents, including to installing the device, the council under the FOI Act, the complainant that which gave rise to the poor copy, had failed to obtain a Traffic Impact had indicated that he would like constituted ‘official records’ which Statement (TIS) as required by clause copies of the documents, and would ought to have been retained for seven A.7 of the Minister for Transport’s like to inspect the originals. This is years. Seven years had not elapsed General Approval to Councils not uncommon, especially where since they had been produced, and I (Minister’s General Approval) issued an applicant would like to see if an did not consider that they fell within under section 17 of the RT Act. agency has added any notations to the original documents. the ‘Normal Administrative Practice’ for the routine destruction of certain Outcome and opinion The complainant subsequently documents. I found that the preparation of a contacted my office and stated that TIS prior to the installation of traffic the council: Accordingly, I concluded that they control devices is a mandatory were possibly destroyed contrary requirement. Although the council · refused to allow him to inspect the to section 23 of the SR Act, and engaged a consulting engineering originals, and therefore contrary to law within the firm to ensure the design complied meaning of section 25(1)(a) of the with the requirements of the Code of Ombudsman Act.

17 I did not consider that council although there had been residents officer sought guidance they would officers were acting in bad faith. In meetings and informal advice of what have been advised not to action the the circumstances, I considered was proposed. The council agreed change until the 2010/2011 financial that a reasonable resolution to the to refund the residents the rental year. matter would be for the council to increases for those 60 days, by way of educate its employees about their a credit to their rent accounts. The council expressed concern obligations under the SR Act, and to about how this second rates notice liaise with State Records, which has Outcome and opinion appeared and how it had affected the administrative responsibility for the I concluded that the council’s rent complainant. It agreed to waive the SR Act. increases were made contrary to the second rates notice and write a letter Residential Tenancies Act 1995, and of explanation including an apology. In the course of my investigation, the were unlawful within the meaning of applicant raised an interesting claim: section 25(1)(a) of the Ombudsman Outcome and opinion that where he has asked to inspect Act. There is no doubt that lawfully the original document, and where that the charge for additional rates document is an email, he should be However, the council acknowledged was valid. However, the council able to inspect the original electronic the error, and took appropriate action accepted that the issue had not document (i.e. have access to it on a to mitigate the impact of it. In the been managed reasonably, and that computer) so that he has access to circumstances, I declined to make any the communication between the the ‘metadata’ behind the email. recommendation under section 25(2) council and the complainant had been of the Ombudsman Act. deficient. I was not convinced. Other than emails which had been printed out City of Charles Sturt The council proactively sought and written on (in which case he Unreasonable financial demand information from other councils about was entitled to see the copy with the how they would have managed this Complaint summary original handwriting), I decided that situation. Council staff were reminded the point was for him to have access The complainant was a pensioner and to refer these types of changes to to the words written in the email, property owner. He received his rates a relevant manager, and the council not any underlying technical data notice for the 2009/2010 financial amended its policies accordingly. associated with electronic documents. year in July 2009, and paid it in full Underlying technical data relates to the following month. Then in March District Council of Grant how a document is formatted and 2010 he received an additional rates Unreasonable tender process stored, and in my view will fall outside notice. the scope of the vast majority of FOI Complaint summary applications. The complainant queried the council The complainants sought review in and was advised that the Valuer relation to the council’s tendering City of Charles Sturt General’s Office had identified that process for a cleaning contract. There Ombudsman ‘own initiative’ there were two maisonettes on the was also an issue of communication investigation: unjust rent increases title, and not one home as previously between the council and the applied to the residents of thought. Hence, the second notice contractors concerning performance Casuarina Lodge, Woodville. sent in March. expectation and feedback. Summary of complaint The complainant was upset with Ombudsman investigation This investigation arose from a the communication provided by the There are good reasons for tender complaint made by a member of the council and questioned whether it procedures to be spelt out in public alleging that the council had was reasonable that he pay additional detail and strictly adhered to. The unjustly applied a rent increase for the rates so late in the financial year. He procedures provide: lodge at which he resided. Because accepted that in future he would be other persons may have been similarly charged for the two maisonettes, but · fairness between tenderers; affected, I commenced an own did not think that council’s decision to · impartiality into the process; and initiative investigation under section charge twice in one financial year was · protection for council officers who 13(2) of the Ombudsman Act. fair and reasonable. might otherwise be perceived as not conducting a tender process Ombudsman investigation Ombudsman investigation impartially and fairly. The issue raised in the investigation The Valuer General’s office had was whether the council had provided information to the council In this case, there was no evidence increased the residents’ rents in as a correction of fact, when it had that the council had complied with accordance with the Residential established that there were two its Purchasing Policy in relation Tenancies Act 1995. households on the one title. A junior to its open tender process. The council officer had processed it Policy specifically provided that the The council acknowledged that without considering the ramifications admission of late tenders was not technically the residents were not for the ratepayer, and had not permissible yet the council awarded given the required 60 days notice consulted a senior officer. Had this the cleaning contract to a company before their rents were increased,

18 which did not put a tender in within I also suggested that the council the prescribed time limits. should consider whether a debt Unreasonable development collection agency should be involved assessment process Outcome and opinion when a borrower has not had a prior Complaint summary I found that the council’s actions were opportunity to dispute an overdue fee. The complaint was about the council’s unreasonable within the meaning of assessment of a development section 25(1)(b) of the Ombudsman My investigation found that in application for a new dwelling on Act. the circumstances there were no significant problems in relation to an allotment in a shack settlement area on the River Murray. The customer service. complainants (as adjoining owners) Unreasonable action to recover expressed concerns about the apparently overdue library items, location of the new dwelling on Unreasonable refusal to provide and poor customer service. the allotment, and that the building reimbursement of maintenance Complaint summary floor plan apparently permitted two costs The complainant alleged that the separate dwellings. Complaint summary actions taken by the council’s library to recover two items which he had I received a complaint about the The complainants stated that the borrowed were unreasonable. He council’s refusal to reimburse the proposed development should stated that he had returned the items complainant for the cost of repairing a have been assessed as ‘non- when they were due in February damaged stormwater outlet in front of complying’ and therefore as a 2009, and received no reminder her property. When the complainant Category 2 development. As the notices until a final notice dated 25 had noticed water leaking from the council assessed the application May 2009. The final notice stated outlet she had contacted the council as a Category 1 development, they that if he did not return the items to report the damage, and had asked did not have the opportunity to within 14 days the matter would a plumber who was working at her make representations about the be placed in the hands of a debt property to repair it. The council proposed development or to appeal collection agency. informed her that the stormwater to the Environment Resources and outlet from a property to the road is Development Court. The complainant also alleged that the responsibility of the resident. a member of the library staff was After raising their concerns, the disrespectful when his wife raised the The council also informed her that if complainants were advised that the matter with her, and that the council maintenance work results in damage council had sought legal advice and failed to respond adequately to 3 to a stormwater outlet, it is usual for had determined that the development letters of complaint. the council to replace it. However, application had been assessed in the a search of council’s records did correct manner, and that no further Ombudsman investigation not reveal that any council work action would be taken. had been undertaken in front of the I was advised that the library’s complainant’s property. Ombudsman investigation investigation into the matter uncovered an error. I sought information from the council Ombudsman investigation about two issues: The error was caused by a misread bar I conducted a preliminary code reading on checkout, possibly due investigation. The council reiterated · whether the council’s assessment of to the need to enter the code manually that the cost of the repairs and the proposed development against because of an electronic systems failure; maintenance to the stormwater pipe Principle of Development Control this meant that the item was not registered in front of the complainant’s property 6 (one dwelling per allotment) was correctly on return. was the responsibility of the property reasonable owner. However, as the complainant Outcome and opinion had paid for the stormwater outlet · whether the council’s assessment of I concluded that the library’s repair in good faith, I asked the the proposed development against actions were unreasonable in the council to review their decision. Principle of Development Control 25 circumstances. It appeared that it had (distance between the dwelling and no system in place to deal with the Outcome and opinion the waterfront) was reasonable possibility (which actually occurred The council maintained the view that in this case) that the checkout and/ it had acted reasonably in the matter, On the first issue, the complainants or return items were not properly and that it had followed the proper stated that the proposed dwelling was recorded, and thus that they appeared process in declining to meet the cost non-complying as it may be used as to be outstanding although they of the outlet repair. two separate dwellings. The floor plan had been correctly returned. Had for the proposed shack showed two a system been in place, it seems However, at my request it decided almost identical areas, each a mirror unlikely that this sequence of events that in this case, as a gesture of image of the other. would have occurred. goodwill it would pay for the repair to the stormwater outlet. It reimbursed the complainant.

19

Council planning staff raised this the distance from the water’s edge In expressing this view, I noted that: matter with the applicants who to the front of the existing and new claimed that the building was to be a buildings on the adjacent allotments · The council had had regard for the single detached dwelling. The council varied by approximately one metre. legal advice obtained. staff considered that there was no Council staff now acknowledge that ‘reasonable justification’ to dispute the the new dwelling is now the width of · A council review of the Development applicants’ claim. its staircase in front of the existing Plan has identified inadequacies, and adjacent dwelling. the issues will be addressed by way On the second issue, information of the River Murray Zone and Minor obtained from the council showed Outcome and opinion Amendments Development Plan that the council planning officers In my view, it was unreasonable for Amendment. had encountered problems in the council planning staff to base their interpretation and application of advice on Principle 6 on the subjective · The council has reinforced with Principle 25. The council properly statement from the applicants that the its planning staff the importance obtained their own legal advice in building would be a single detached of a thorough and comprehensive relation to the interpretation of the building. The statement from the consideration of siting issues for first of Principle 25’s first listed applicants did not provide sufficient development applications for shacks exemptions - ‘the development is not and adequate information on which in the area. sited closer to the waterfront than any to base the decision that the various part of an existing dwelling on either requirements of the Development side’. Plan had been met. Alleged failure to provide traffic report The council acknowledged that I accepted that there was a significant Complaint summary the reference to the ‘waterfront’ difference of opinion about the The complainant requested a copy in Principle 25 is ambiguous and varying measurements taken from the of a traffic impact study (the traffic decided that Principle 25 should waterfront to the existing and new study) that he had seen being be reviewed and amended to clarify adjacent dwellings. Nevertheless, it is perused by a developer at a council- its intent and application. It also now clear that the new dwelling has convened meeting in January 2009. decided to continue to determine the been built at least one metre closer The traffic study related to a proposal waterfront of each allotment on a to the waterfront than the adjacent, by the developer for a commercial case by case basis. existing dwelling. development on land adjacent to the complainant’s property, and As a consequence of its visual As the building had been built, the to a proposed Development Plan site inspections, the council’s complainants have been left with no Amendment (DPA) for that area. Development Report to the effective remedy. Whilst there were Development Assessment Panel undoubted difficulties in applying After the meeting, the complainant recommended that the proposed Principle 25, in my view the council’s asked a council officer for a copy dwelling be located in line with the consent process and assessment of the traffic study, and the officer adjoining shack. The council later of the proposed development was denied knowledge of it. The officer acknowledged that the site plan did inadequate. not give a true indication of the nature later provided the complainant with of the waterfront. A more recent two different documents, neither of inspection of the site showed that which was the traffic study he had seen at the meeting.

20 The complainant then read the would be completed in less time than explanations for its delay in minutes of the November 2008 it was. The Development Act 1993 providing the traffic studies, I was council meeting which stated that the and the Development Regulations not persuaded that the council council had received an unsatisfactory 2008 provide for public consultation was deliberately withholding these traffic study from its consultant and of a proposed DPA but do not documents from the complainant. had asked that it be amended ‘to provide for the release of a draft However, council staff were unable reflect the realistic and accurate impact study report to an affected to comply with the complainant’s traffic movements in this area.’ he land owner. requests, and the council’s records requested a copy of that document. management processes were As required by the Local Government inadequate. The council gave him a copy of a Act 1999, the council has adopted draft ‘Initial’ Traffic Impact Study a code of conduct which includes I found that the council’s failure to dated October 2008. Having found principles requiring council employees provide the complainant with the no statements suggesting a major to: September 2008 Traffic Study obstacle to rezoning in this document, within a reasonable time was based the complainant tried to obtain · Act in a fair, honest and proper wholly or in part on a mistake of fact, the traffic study by a Freedom Of manner according to the law, in terms of section 25(1)(f) of the Information Act request. The council including just and non-discriminatory Ombudsman Act. officer then assured the complainant behaviour that the document he was requesting City of Port Adelaide Enfield had already been provided to him. · Be fair and honest in their dealings Unlawful impounding and disposal The council’s CEO also provided the with individuals and organisations of a motor vehicle complainant with a written declaration Complaint summary stating that the document he was · Respect information obtained in the seeking ‘does not exist.’ course of their duties and functions The complainant owned a vehicle, and use it in a careful and prudent which she allowed a relative to Later the same day, the council officer manner. use. The relative left the vehicle on apologised to the complainant and a public street for a period of time, advised him that a previous traffic In my view, the council’s action in and the council subsequently seized study had been located and a copy providing the traffic study to the and sold it. The complainant first of this study, dated September 2008, developer in advance of the public contacted the council when she was provided to him. He noted that consultation period may have started receiving expiation notices for it had a different appearance to the discriminated against other interested offences involving the vehicle. She document he had sighted in January parties, and was arguably contrary to then contacted my office in relation to 2009, but the text did correlate to the the council’s code of conduct. this, and the fact that the council sold November 2008 minutes. her vehicle. In relation to the second issue, the Ombudsman investigation complainant asserted that when Ombudsman investigation Information was sought from the he first requested the traffic study The council was exercising its power council about two issues, i.e. whether from the council officer, he had to seize and dispose of abandoned the council’s provision of a draft described its appearance in some vehicles under section 237 of the traffic study to the developer was detail. His later requests had referred Local Government Act . It had a reasonable and whether the council’s to the traffic study referred to in the range of procedures in place. explanation for its failure to provide November 2008 council minutes. the traffic study to the complainant The council had posted a notice to was reasonable. The council explained its delay the complainant advising her that the in providing the traffic study vehicle had been seized and would be On the first issue, information as ‘a combination of innocent disposed of if she did not recover it. obtained from the council showed misunderstandings and honest The complainant passed the notice to that: mistakes’. However, it acknowledged her relative on the understanding that that its record management practices the relative would contact the agency. · The council officer, with the CEO’s need to be improved. approval, provided the traffic study to The relative did not contact the the developer to explain a perceived Outcome and opinion council and the vehicle was disposed delay in processing the DPA. It did On the first issue, I observed that of. After disbursements an amount of so to explain that incorrect traffic the failure by council to provide the $73 was sent to the complainant. data needed to be corrected as it traffic study to all interested parties may have affected how the subject (including the complainant) at the Outcome and opinion land could be developed. same time contributed to a climate of The council took steps to alert the mistrust between the complainant and vehicle owner that the vehicle was · Statements in the council minutes the council. at risk of being impounded if it was indicate that the council had fostered not moved. This is not a statutory expectations that the DPA process On the second issue, while doubt requirement, but it represents good was created about the Council’s practice.

21 +W]VKQT[PI^MIZM[XWV[QJQTQ\a \WMV[]ZM\PI\IXXTQKIV\[ UMM\\PMZMY]QZMUMV\[WN  ,M^MTWXUMV\8TIV+WV[MV\[ _Q\PQVIZMI[WVIJTM\QUMNZIUM

Although the seizing and impounding Port Pirie Regional Council District Council of Tumby Bay of the vehicle was lawful, the council Failure to enforce development Unreasonable failure to enforce a failed to serve the notice personally conditions Land Management Agreement on the complainant as required by the Complaint summary Complaint summary Act. This was a technical breach, as the complainant had actually received The complainant alleged that the The complainants owned a property in the notice posted to her. The breach council had failed to enforce the a marina development. They alleged was compounded when a person conditions of its Development Plan that an adjoining residential property without the appropriate delegated Consent (DPC) on land adjoining in the development was being authority issued the notice, and the his. The conditions required that used for holiday rentals, apparently notice did not comply with the strict driveways and car parking would be contrary to a Land Management requirements of the Act. marked prior to occupation of land. Agreement (the LMA) applying to the development. They stated that: The council did not assess the Ombudsman investigation value of the vehicle prior to disposal It was clear that the occupier of land · When they bought their home in by public tender. In my opinion, had not complied with the conditions the marina (in October 2006), they good practice requires that an of the DPC, although they had been in were required to sign the LMA which understanding of the likely value of occupation for more than 12 months. could be altered only if all residents the vehicle should be ascertained The council had sought to negotiate of the marina agreed. prior to disposal. This does not compliance over that time, but this require a full market valuation in had been unsuccessful and had not · The council then made ‘changes’ to every case, although the greater been pursued with vigour. the LMA, ‘redefining’ the term ‘private the apparent value of the vehicle, residential use’ to include holiday the more stringent the assessment Outcome and opinion rentals. required. Neither does it mean I found that the failure to enforce · Their immediate neighbours that the council must achieve the the conditions was unreasonable, rented out their property for assessed value at the time of disposal, and I recommended that the council holidays, leading to noise and other but the council must be able to should ensure the occupiers meet disturbances. demonstrate that the disposal was the requirements of the condition conducted fairly. of the DPC as soon as reasonably · They complained in writing to practicable. In my report I acknowledged that the the council in January 2009 and received a reply in October council had reviewed and changed a I noted that outstanding issues 2009. The council’s discussion number of features of its section 237 even of relatively minor matter can of the complaint had been held in procedures before I concluded my be an irritation to the public, and confidence. report. that councils have a responsibility to ensure that applicants meet the The council advised that the marina requirements of DPC conditions LMA was made in September 2001 within a reasonable time frame. and stated in part that ‘the owner must only use the land for private residential purposes.’

22 In mid-2006, the council surveyed · to advise the adjoining owners that The council wrote to the adjoining marina landholders about amending personal occupation of their unit owners, but in my view the letter the LMA to define ‘private residential should be ‘attempted’ during each did not fully convey the fact that the purposes’ as occupation for not less year adjoining owners’ use of their property than six consecutive months. As only may not be in accordance with the a minority of landowners indicated · that behavioural problems at the LMA. support for it, the council decided not marina would be brought to the to amend the LMA. attention of SA Police for general Outcome and opinion patrol duties during holiday periods. On the first issue, I noted that the In June 2008, the council received council properly sought legal advice legal advice confirming that amending Ombudsman investigation on the proper application of the LMA. the LMA would be problematic. The I sought information from the council The council procured an interpretation advice suggested that the council about two issues policy as a pragmatic means of develop an interpretation policy administering it. as a guide to landowners on how · whether the council’s adoption of an the council proposed interpreting Interpretation Policy to ‘supplement’ On the second issue, I noted that the potentially ambiguous provisions of the LMA was in accordance with council followed a proper process, the LMA. relevant legislation, policies and the but appeared reluctant to tell the provisions of the LMA adjoining owners that they may not be The advice pointed out that an complying with the LMA. I considered interpretation policy could be · whether the council’s response that the council’s response to the implemented by the council to the complaint was lawful and complaint was lawful but was not unilaterally. The council authorised reasonable reasonable. In my view the council’s the preparation of a draft response to the complainants had Interpretation Policy and received On the first issue, the complainant the effect of unfairly disadvantaging the current version in October claimed that the council had the complainant, and favouring the 2008. In December 2008, it unilaterally ‘changed’ the LMA by adjoining owners. resolved to supplement the LMA introducing the Interpretation Policy with the Interpretation Policy for new which ‘redefined’ the term ‘private I considered that the council acted in developments in the marina only. residential use’. a manner which was unreasonable and wrong within the meaning of sub- The Interpretation Policy states: The information provided by the sections 25(1)(b) and 25(1)(g) of the council, about its attempt in 2006 to Ombudsman Act. … the reference to the use of the land for gauge support for amending the LMA, private residential purposes means that demonstrated that the council was Based on the legal advice provided the land should be used as the permanent residential premises for one family, person aware that it cannot amend the LMA to the council, I recommended that it or group of persons. … It may be used without the agreement of all marina should: as a holiday house … It does not prevent land owners. the owner of the premises renting the · Make a proper assessment of premises to a person or persons for a short In my view, notwithstanding the the adjoining owners’ claim that period of time for holiday purposes. The council’s view that the Interpretation their property is not a commercial premises should not be used for short term Policy is a separate guideline which enterprise. accommodation for transient persons … does not change the content or legal status of the LMA, the council’s · Seek more information on the extent When the complainants complained, presentation and description of the to which the adjoining property is the council sought a response from Policy to marina landowners may not available for short-term rental. the owners of the adjoining property. have made that point clear. The adjoining owners: · Based on the above information and On the second issue, the council in consultation with the council’s · disagreed that their property is a investigated and sought legal advice legal adviser, assess the feasibility commercial enterprise about the complaint. The council of enforcing the terms of the concluded that the use of the LMA using the civil enforcement · disputed that their tenants caused adjoining property suggested that provisions in section 85 of the disruption to the extent alleged by it was being used more as a rental Development Act. the complainants property than for private residential purposes, and that it was arguable After getting legal advice, the council that the adjoining owners were not resolved complying with the LMA. · to advise the complainant that future behaviour problems with adjoining occupants will be reported to police for action

23

City of West Torrens Outcome and opinion Unreasonable planning approval It was my opinion that the council Complaint summary had not undertaken a proper inquiry and inspection with regard to the The complainant stated that the location of the complainant’s habitable council’s approval of the construction living rooms. The report provided of a two-storey dwelling had inconsistent and unclear advice to significant impact on her home’s the DAP about the impact of the open space and interior privacy, due proposed development on those to overshadowing. She had informed rooms. Planning consent was granted the council of the fact that her family’s and as a consequence, the proposed habitable living areas were located development will more than likely on the northern side of her residence significantly reduce the heat and light and the living areas relied on the from the winter sun to the living areas northern winter sun for heat and of the complainant’s home. light. Her statements emphatically expressed her concern that the It was my opinion that the council’s north facing living areas would be administrative process could adversely affected by the proposed be improved in relation to the development. assessment of proposed development siting and setback, overshadowing Ombudsman investigation issues, and the impact of reduced The council prepared and presented winter heat and light on adjoining a report on the development properties. application for the consideration of the Development Assessment Panel I recommended that the council (the DAP). The primary purpose of should undertake a review of its such a report is to assist the DAP with internal control processes to ensure the task of assessing and deciding that proper inspection, assessment the development application. and reporting is carried out in similar situations in the future. The council My investigation focussed on the advised me that a development adequacy of the report. Although the checklist would be devised to application was treated as a ‘merit’ better inform and advise planning and ‘non-complying’ development staff in relation to overlooking or application, the council did not overshadowing issues. undertake a site inspection, and it was evident that it had not appropriately considered the overshadowing effects of the proposed development.

24 Local Government Complaints Received 1 July 2009 to 30 June 2010

Received % Population 30 June 2009 Complaints/10,000 pop’n Council 28 4.1% 39 852 7.0 8 1.2% 23 160 3.4 5 0.7% 11 240 4.4 46 6.7% 19 444 23.6 City of Burnside 23 3.4% 44 300 5.2 City of Charles Sturt 50 7.3% 106 995 4.7 14 2.0% 35 683 3.9 26 3.8% 65 315 4.0 City of Norwood, Payneham & St Peters 7 1.1% 36 128 1.9 City of Onkaparinga 39 5.7% 160 404 2.4 33 4.8% 77 469 4.2 City of Port Adelaide Enfield 24 3.5% 111 455 2.2 4 0.6% 14 593 2.7 15 2.2% 20 910 7.2 28 4.1% 130 022 2.1 30 4.4% 100 155 3.0 20 2.9% 55 620 3.6 Clare and Gilbert Valleys Council 7 1.1% 8 743 8.0 Corporation of the City of Campbelltown 5 0.7% 49 281 1.0 Corporation of the City of Marion 23 3.4% 84 142 2.7 Corporation of the 19 2.8% 38 465 4.9 Corporation of the 8 1.2% 23 028 3.5 Corporation of the 13 1.9% 20 730 6.3 Corporation of the 1 0.1% 7 338 1.4 District Council of Barunga West 2 0.3% 2 631 7.6 District Council of Ceduna 4 0.6% 3 797 10.5 District Council of Coober Pedy 1 0.1% 1 913 5.2 District Council of Coorong 3 0.4% 5 825 5.1 District Council of Elliston 5 0.7% 1 169 42.8 District Council of Franklin Harbour 3 0.4% 1 355 22.1 District Council of Grant 6 0.9% 8 652 6.9 District Council of Kimba 1 0.1% 1 125 8.9 District Council of Lower 2 0.3% 4 820 4.1 District Council of Loxton Waikerie 1 0.1% 12 043 0.8 District Council of Mallala 3 0.4% 8 385 3.6 District Council of Mount Barker 17 2.5% 29 864 5.7 District Council of Mount Remarkable 2 0.3% 2 951 6.8 District Council of Orroroo/Carrieton 1 0.1% 938 10.7 District Council of Peterborough 6 0.9% 1 973 30.4 District Council of Renmark Paringa 2 0.3% 9 882 2.0 1 0.1% 1 480 6.7 District Council of Streaky Bay 4 0.6% 2 181 18.3 District Council of the Copper Coast 8 1.2% 12 901 6.2 District Council of Tumby Bay 3 0.4% 2 757 10.9 District Council of Yankalilla 5 0.7% 4 577 10.9 District Council of Yorke Peninsula 11 1.6% 11 736 9.4 4 0.6% 4 612 8.7 Kingston District Council 3 0.4% 2 469 12.1 13 1.9% 13 658 9.5 Mid Murray Council 8 1.2% 8 511 9.4 Naracoorte Lucindale Council 3 0.4% 8 489 3.5 Northern Areas Council 9 1.3% 4 866 18.5 Port Augusta City Council 8 1.2% 14 669 5.4 Port Pirie Regional Council 7 1.1% 18 076 3.9 Regional Council of Goyder 3 0.4% 4 285 7.0 1 0.1% 4 484 2.2 Rural City of Murray Bridge 11 1.6% 19 402 5.7 Southern Mallee District Council 3 0.4% 2 189 13.7 1 0.1% 7 118 1.4 The 21 3.1% 22 514 9.3 The 3 0.4% 1 784 16.8 Victor Harbor City Council 7 1.1% 13 608 5.1 Wakefield Regional Council 7 1.1% 6 756 10.4 6 0.9% 12 554 4.8 Total 685 100%

25 Local Government Complaints Received: Issues 1 July 2009 to 30 June 2010 Other City of Adelaide City of Charles Sturt City of Onkaparinga Gully Tree City of Tea Total Percentage Access to information 2 2 0.3% Administration 34 4 7 1 5 5 56 8.7% Administration/general management of Council 68 4 4 9 7 4 96 14.9% Administrative practices/Policies 44 2 3 3 3 4 59 9.1% Advice 1 1 2 0.3% Animals 8 1 1 1 11 1.7% Approvals (permits, licences, registrations) 1 1 2 0.3% Citizens’ rights 1 1 0.2% Communication 1 1 2 0.3% Complaint handling/Conflict of interest 4 4 0.6% Complaint handling/Delay 2 1 3 0.5% Complaint handling/Inadequate processes 14 1 1 1 17 2.6% Complaint handling/Inadequate reasons 5 1 1 7 1.1% Complaint handling/Inadequate remedy 7 1 1 9 1.3% Complaint handling/Wrong conclusion 1 1 2 0.3% Conduct/Discourtesy 1 1 0.2% Conduct/Misconduct 5 1 6 0.9% Correspondence/Communications/Records/Access 3 1 4 0.6% Correspondence/Communications/Records/Delay/No response 4 1 5 0.8% Correspondence/Communications/Records/Incorrect 4 1 5 0.8% Correspondence/Communications/Records/Wrongful disclosure of information 2 2 0.3% Drains/sewers 5 1 6 0.9% Duty of care 2 2 0.3% Fees/Charges/Levies 9 1 10 1.5% Financial issues 9 1 10 1.5% Financial/Procurement/Facilities/Compensation/Damage/ Property lost/Damaged 1 1 0.2% Financial/Procurement/Facilities/Debts/Incorrect calculation 1 1 0.2% Financial/Procurement/Facilities/Facilities owned/Controlled by Authority/Building 2 2 0.3% Financial/Procurement/Facilities/Facilities owned/Controlled by Authority/Drainage 1 1 2 0.3% Financial/Procurement/Facilities/Facilities owned/Controlled by Authority/Recreational facilities 2 2 0.3% Financial/Procurement/Facilities/Facilities owned/Controlled by Authority/Roads/Streets 6 1 7 1.1% Financial/Procurement/Facilities/Other fees and charges 1 1 0.2% Financial/Procurement/Facilities/Procurement by agencies/ Decisions 1 1 0.2% Financial/Procurement/Facilities/Procurement by agencies/Tenders 1 1 0.2% Financial/Procurement/Facilities/Rates/Administration 3 3 0.5% Financial/Procurement/Facilities/Rates/Amount 1 1 0.2% Financial/Procurement/Facilities/Rates/Recovery action 1 1 0.2% Funding 1 1 0.2% Health 11 3 14 2.1% Improper release of documents 2 1 3 0.5% Land use 2 2 0.3% Maintenance 9 1 10 1.5% Officer misconduct 4 4 0.6% Ordinances, Regulations, By-laws 1 1 1 3 0.5% Other 1 1 0.2% Parking 15 1 15 5 1 2 39 6.0% Planning and development 81 7 1 8 3 4 104 16.1% Rates and charges 20 1 1 1 23 3.5%

26 Records keeping 1 1 0.2% Regulation and enforcement/Animals/Excessive action 3 1 1 5 0.8% Regulation and enforcement/Animals/Failure to act on complaints 2 1 3 0.5% Regulation and enforcement/Building/Failure to enforce condition 1 1 0.2% Regulation and enforcement/Building/Failure/Delay to issue permit 1 1 0.2% Regulation and enforcement/Building/Unreasonable enforcement 1 1 0.2% Regulation and enforcement/Environmental Protection/Failure to action on complaints 1 1 0.2% Regulation and enforcement/Local laws/Failure to enforce 1 1 0.2% Regulation and enforcement/Local laws/Improper/Inappropriate 1 1 0.2% Regulation and enforcement/Local laws/Unreasonable enforcement 2 2 4 0.6% Regulation and enforcement/Nuisances/Failure to action on complaints 1 1 2 0.3% Regulation and enforcement/ Parking/Failure to enforce restrictions 2 2 0.3% Regulation and enforcement/ Parking/Unreasonable enforcement 3 1 3 2 9 1.3% Regulation and enforcement/Planning & Development/ Failure to enforce condition 4 4 0.6% Regulation and enforcement/Planning & Development/ Failure to notify 4 1 1 6 0.9% Regulation and enforcement/Planning & Development/ Failure/ Delay to issue permit 3 3 0.5% Regulation and enforcement/Planning & Development/ Inappropriate development allowed 14 1 1 1 17 2.6% Regulation and enforcement/Planning & Development/ Unreasonable conditions imposed 3 1 2 6 0.9% Regulation and enforcement/Public health/Failure to act on complaints 2 1 3 0.5% Regulation and enforcement/Public health/Unreasonable conditions imposed 2 2 0.3% Regulation and enforcement/Public health/Unreasonable enforcement 1 1 0.2% Roads 6 2 8 1.2% Tenders 1 1 0.2% Transport 1 1 0.2% Trees 4 1 1 2 8 1.2% Total 459 28 44 44 42 26 643 100%

Note: Issues which appear as shaded lines relate to complaints finalised before 15 March 2010, when the new case management system commenced operation. Those appearing in unshaded lines relate to complaints finalised after that date. The unshaded issues will appear in future reports.

27 Local Government Complaints Completed 1 July 2009 to 30 June 2010

Completed % Population 30 June 2009 Complaints/10,000 pop’n Adelaide Hills Council 25 3.5% 39 852 6.3 Alexandrina Council 11 1.6% 23 160 4.7 Berri Barmera Council 5 0.7% 11 240 4.4 City of Adelaide 48 6.8% 19 444 24.7 City of Burnside 22 3.1% 44 300 5.0 City of Charles Sturt 49 7.0% 106 995 4.6 City of Holdfast Bay 14 2.0% 35 683 3.9 City of Mitcham 20 2.8% 65 315 3.1 City of Norwood, Payneham & St Peters 8 1.1% 36 128 2.2 City of Onkaparinga 38 5.4% 160 404 2.4 City of Playford 33 4.7% 77 469 4.2 City of Port Adelaide Enfield 23 3.3% 111 455 2.1 City of Port Lincoln 6 0.9% 14 593 4.1 City of Prospect 15 2.1% 20 910 7.2 City of Salisbury 28 4.0% 130 022 2.1 City of Tea Tree Gully 30 4.3% 100 155 3.0 City of West Torrens 24 3.4% 55 620 4.3 Clare and Gilbert Valleys Council 8 1.1% 8 743 9.1 Corporation of the City of Campbelltown 4 0.6% 49 281 0.8 Corporation of the City of Marion 25 3.5% 84 142 3.0 Corporation of the City of Unley 20 2.9% 38 465 5.2 Corporation of the City of Whyalla 8 1.1% 23 028 3.5 Corporation of the Town of Gawler 12 1.7% 20 730 5.8 Corporation of the Town of Walkerville 1 0.1% 7 338 1.4 District Council of Barunga West 2 0.3% 2 631 7.6 District Council of Ceduna 5 0.7% 3 797 13.2 District Council of Coober Pedy 1 0.1% 1 913 5.2 District Council of Coorong 3 0.4% 5 825 5.1 District Council of Elliston 4 0.6% 1 169 34.2 District Council of Franklin Harbour 3 0.4% 1 355 22.1 District Council of Grant 8 1.1% 8 652 9.2 District Council of Kimba 1 0.1% 1 125 8.9 District Council of Lower Eyre Peninsula 2 0.3% 4 820 4.1 District Council of Loxton Waikerie 2 0.3% 12 043 1.7 District Council of Mallala 3 0.4% 8 385 3.6 District Council of Mount Barker 18 2.6% 29 864 6.0 District Council of Mount Remarkable 1 0.1% 2 951 3.4 District Council of Orroroo/Carrieton 1 0.1% 938 10.7 District Council of Peterborough 6 0.8% 1 973 30.4 District Council of Renmark Paringa 2 0.3% 9 882 2.0 District Council of Robe 2 0.3% 1 480 13.5 District Council of Streaky Bay 3 0.4% 2 181 13.7 District Council of the Copper Coast 13 1.9% 12 901 10.1 District Council of Tumby Bay 2 0.3% 2 757 7.2 District Council of Yankalilla 5 0.7% 4 577 10.9 District Council of Yorke Peninsula 11 1.6% 11 736 9.4 Kangaroo Island Council 4 0.6% 4 612 8.7 Kingston District Council 3 0.4% 2 469 12.1 Light Regional Council 13 1.9% 13 658 9.5 Mid Murray Council 9 1.3% 8 511 10.6 Naracoorte Lucindale Council 2 0.3% 8 489 2.3 Northern Areas Council 10 1.4% 4 866 20.5 Port Augusta City Council 10 1.4% 14 669 6.8 Port Pirie Regional Council 8 1.1% 18 076 4.4 Regional Council of Goyder 2 0.3% 4 285 4.7 Roxby Council 1 0.1% 4 484 2.2 Rural City of Murray Bridge 11 1.6% 19 402 5.7 Southern Mallee District Council 3 0.4% 2 189 13.7 Tatiara District Council 1 0.1% 7 118 1.4 The Barossa Council 26 3.7% 22 514 11.5 The Flinders Ranges Council 3 0.4% 1 784 16.8 Victor Harbor City Council 9 1.3% 13 608 6.6 Wakefield Regional Council 6 0.9% 6 756 8.9 Wattle Range Council 9 1.3% 12 554 7.2 Total 705 100% 15672 4.4

28 Local Government Complaints Completed: Outcome 1 July 2009 to 30 June 2010 Other City of Adelaide City of Charles Sturt City of Onkaparinga City of Playford Gully Tree City of Tea Total Percentage Advice given 232 20 24 15 15 13 319 45.2% Alternate remedy available with another body 9 1 1 1 12 1.7% Declined 22 4 2 3 3 3 37 5.3% Declined/Trivial, vexatious, etc 3 3 0.4% Declined/Withdrawn by complainant 1 1 0.1% Full investigation 15 1 2 1 19 2.7% Not substantiated 29 9 4 5 3 1 51 7.3% Ombudsman comment warranted 1 1 0.1% Out of Jurisdiction 5 1 1 7 1.0% Out of Jurisdiction/Judicial body 2 2 0.3% Preliminary investigation 90 8 9 5 4 6 122 17.3% Referred back to agency 56 3 3 4 4 1 71 10.1% Resolved with agency cooperation 17 2 2 2 1 24 3.4% S25 Finding/Mistake of law or fact 1 1 0.1% S25 Finding/Unlawful 1 1 2 0.3% S25 Finding/Unreasonable 6 6 0.9% Withdrawn by complainant 17 1 2 1 3 3 27 3.8% Total 507 48 49 38 33 30 705 100% 71.9% 6.8% 7.0% 5.4% 4.7% 4.2% 100%

Note: See Appendix 2 for definitions of outcomes

29 Other Authorities

Adelaide Cemeteries Trust occurred during its removal from the Outcome and opinion Unreasonable delay in repairing cemetery site. The agency agreed to The internal review confirmed that headstone repair the headstone at no cost to the the court official who addressed complainant. Complaint summary the complainant’s requests acted in accordance with her legal obligations. I received a complaint concerning the Courts Administration Authority In addition, the complainant did need agency’s delay in repairing a damaged Unreasonable charge for transcription to be identified as a victim in the headstone. and a review of processes undertaken proceedings in order to have his fees when a victim of crime accesses court waived. The agency had contacted the documents. complainant to inform him that the However, the circumstances Burial Grant registered in his name Complaint summary surrounding this complaint led had expired, and was under review me to conclude that the practices as part of an ongoing redevelopment The complainant sought access in accordance with which the of the cemetery. Although the from the Courts Administration administrative act was done should complainant had an opportunity to Authority (the CAA) to a transcript be varied. Specifically, if a person renew the Burial Grant over the site, of sentencing remarks but was claiming to be a victim of crime seeks he chose not to renew it. Instead, he asked to pay a ‘per page’ fee. The access to court documents, they made a request to the agency to take case involved a prosecution arising should in the first instance be referred possession of the headstone. from the death of the complainant’s grandfather, and the complainant to the Commissioner for Victims Rights, who is often able to arrange The agency advised the complainant believed that the fees should be an appropriate outcome. that he could have the headstone waived as he was a victim of crime when it was removed from the under the Victims of Crime Act 2001. The CAA created a procedural cemetery site. However, when the However, he had not previously instruction for staff working in the headstone was removed it was registered an interest and did not Magistrates Courts, which directed damaged. tender a Victim Impact Statement to the court. court employees to refer such requests to the Commissioner for Ombudsman investigation Ombudsman investigation Victims Rights. The agency confirmed that the My office made a determination that headstone was damaged when it was Courts Administration Authority the CAA was legally entitled to charge removed, and was in storage at the - Office of the Sheriff cemetery. No action had been taken fees should it choose to do so, and Improper disposal of a motor by the agency due to staff changes, therefore there was no administrative vehicle and it was unaware that the matter error. The complainant was not happy had not been resolved. with this determination and asked my Complaint summary office to conduct an internal review. The complainant was the owner of Outcome and opinion a motor vehicle, which was used by I spoke with the Chief Executive The agency accepted that the delay another person in the commission of the CAA and the Commissioner in addressing the issues raised by of an offence. On conviction of for Victims Rights about the the complaint was unreasonable. It the person, the court ordered that circumstances of the complaint, in an acknowledged that the damage the Sheriff seize and dispose of endeavour to negotiate an appropriate caused to the headstone had the vehicle under the Criminal outcome.

30 Law (Clamping, Impounding and Environment Protection Further, to issue an environmental Forfeiture of Vehicles) Act 2007. Authority authorisation whilst the Development Unreasonable issue of an Plan Consent conditions remained The complainant’s solicitor environmental authorisation unmet potentially undermined the subsequently brought an application regulatory authority of the council. Complaint summary for rehearing before the court, with In my view it is preferable (for both a view to having the forfeiture order This complaint arose from the regulators and proponents) that a revoked. By the time the application operation of a chemical fertiliser consistent and mutually supportive had been heard by the court, the distribution facility under an approach to the enforcement of vehicle had been disposed of by the emergency authorisation issued by development conditions (whether sheriff. the Environment Protection Authority contained in a Development Plan (the EPA), initially for a 3 week period Consent, or in an environmental Ombudsman investigation to permit a shipment of material to authorisation) is taken by the EPA and be received. A full environmental I considered whether the complainant the relevant council. authorisation was subsequently initially had been properly notified of issued. the forfeiture application to the court, Outcome and opinion and why the sheriff had disposed I accepted that on the facts it was The complainants objected to the of the vehicle when the rehearing reasonably open to the EPA to issue issue of the emergency authorisation, application had not been determined an emergency authorisation, but that and stated that the facility had by the court. it would have been helpful if the EPA operated outside its terms whilst had recorded the reasons upon which it was in effect. They also alleged Outcome and opinion the issue of the authorisation was that the environmental authorisation based. I did not find evidence of any failure in should not have been issued because meeting the notification requirements some Development Plan Consent I recommended that the EPA should under the Act. However, it appeared conditions imposed by the local develop an internal policy for dealing to me that there was a collective council had not been met. Some of with applications for emergency failure by the complainant and the these conditions in fact had been authorisations, incorporating a risk parties to the forfeiture application to determined by the EPA through the assessment of the threats to life, advise the court that the vehicle was referral and consultation process. owned by someone other than the environment and property, and an analysis of why circumstances of offender, before the forfeiture order Ombudsman investigation was made. urgency exist. The reasons for My investigation firstly considered the decision to grant or deny the whether it was reasonable for the EPA On the basis that the order had been authorisation, set out in accordance to issue the emergency authorisation. made, I concluded that the sheriff’s with this policy, should be recorded in The EPA noted that as it was intended seizure of the vehicle was lawful. the file. to cover a temporary situation, it did not include every condition for The subsequent efforts of the In relation to the full environmental addressing environmental impacts, complainant to have the order authorisation, I considered that whilst and that the EPA still had other civil revoked failed because there was no it is up to a council to enforce the enforcement options available to it in proper process in place to ensure that conditions of a Development Plan the event they were needed. when the application for rehearing Consent, the EPA should not issue was lodged, the sheriff was informed. an environmental authorisation whilst The EPA took the view that not This failure was compounded when a development is not substantially allowing the shipment of material to the court proceeded to revoke the complying with conditions required in be transported would not only result forfeiture order, while being unaware a Development Plan Consent. in financial loss for the operator, but of the fact that the vehicle had already potential loss of property for the been disposed of. The EPA stated that it agrees in agricultural industry that heavily relies principle with this position, but on the receipt of the material. I recommended to the State believes that: Courts Administration Council that I also considered whether the consideration should be given to an ‘…..it is not possible to apply a hard and full environmental authorisation fast rule as in practice the decision will ex gratia payment to the complainant should have been issued whilst the always depend on the particular facts of for the loss of his vehicle, and that a conditions of the Development Plan the case. There are occasions where the process should be in place whereby Consent remained unmet. In my view granting of an authorisation enables the the Sheriff is informed of any EPA to manage or prevent potential harm there was no obligation to issue an application to a court to vary or disturb greater than that which is likely as a result environmental authorisation, although an order relating to the seizure of a of a condition not being met.’ this was apparently asserted by the vehicle. EPA to the council. I accepted that this was a reasonable position for the EPA to take.

31 Environment Protection appropriate contact person should The Board agreed that its initial Authority the complainants wish to discuss their reasoning as offered to the Unreasonable handling of pollution concerns further. complainant in the Director’s letter problem was a little brief, and an alteration was I advised the complainants that in my offered. Complaint summary view it was not appropriate for me to The complainants were owners of further investigate their concerns or Outcome and opinion a houseboat which was located at make any recommendations to the Whilst the complainant was still a site on the River Murray. They EPA. unhappy as the ultimate result was complained about the actions of the not in his favour, I was satisfied that EPA in relation to its investigation of Legal Practitioners Conduct initial shortcomings were quickly their concerns about water pollution Board rectified by the Board and an in the river near their houseboat. Failure to provide adequate appropriate level of reasoning had The complainants had also sought reasons for a decision now been given. I did not consider advice and assistance from the the actual decision unreasonable Environmental Defenders Office. Complaint summary or unlawful. I disagreed with the The complainant alleged to the Legal complainant that this matter alone Ombudsman investigation Practitioners Conduct Board (the gave rise to any systemic issues. I received a copy of an internal EPA Board) that he had been overcharged by a legal practitioner. One of report on its handling of the complaint. State Procurement Board The report acknowledged that there the Board’s employed solicitors Unreasonable tender process were a number of deficiencies in the investigated the matter prior to way the agency had communicated reporting to the Director of the Board. Complaint summary with the complainants, and the The employed solicitor’s report ran The complainant was a representative untimely manner in which their to three pages and contained, in body for a number of businesses complaint was investigated. essence, the reasons for the outcome. that submitted tenders for the whole Based upon the report, the Director of government contract to provide The EPA’s Chief Executive had written wrote to the complainant and, after specialist services. The complaint to the complainants and provided clarifying one small matter, advised of was that the process was unfair due them with an apology, and information the delegated decision that: to its onerous nature, and that there about the new procedures that the had been a significant delay in the agency had put in place to deal with · there is no evidence of unsatisfactory or decision making process unprofessional conduct on the part of the future reports of pollution and other practitioner; and that concerns from the public. Ombudsman investigation · there was no overcharging in this matter. I conducted a preliminary As a gesture of good-will, the EPA investigation. I noted that there compensated the complainants for The complainant sought review by had been discussions with the costs incurred in analysing water the lay observer, but to no avail. complainant body before the tender samples collected in the vicinity of Subsequently, the complainant made process began, and a methodology their houseboat. It also gave careful an application under the FOI Act for and evaluation plan had been consideration to whether any further documents about the matter. developed by the agency. scientific testing of water near the houseboat should be undertaken. It Relevantly, the Director of the Board Potential tenderers had been given decided that further testing would determined that the employed information to enable them to not be carried out at that stage, solicitor’s report to the Director was better understand the tender and for several reasons which were exempt under clause 10 of Schedule evaluation process, and were given an clearly explained in a letter to the 1 to the FOI Act (documents subject opportunity to raise concerns. complainants. to legal professional privilege). A number of tenderers were The EPA provided to complainants, The complainant then contacted successful in securing contracts, the name and contact details of a my office about the level of but one unsuccessful tenderer staff member who could discuss any reasoning given by the Board for complained to the agency about further concerns the complainants its decision. My office clarified that the process. This resulted in some may have had about the river pollution. the complainant was not seeking an aspects of the evaluation being external review under the FOI Act. recalculated, and the agency engaged Outcome and opinion an external consultant to scrutinise In my opinion, the EPA properly Ombudsman investigation what had occurred through the reviewed the handling of the It appeared to me that very little of the conduct of a ‘shadow’ evaluation of complaint and took all reasonable detail in the employed solicitor’s report the tenders. and appropriate steps to instigate had been reproduced in the Director’s new procedures to ensure more letter to the complainant. Although some departures from the appropriate practices in the future, evaluation plan were identified, this as well as providing the name of an did not affect the list of successful tenderers.

32 Outcome and opinion contractor and that the second crew Ombudsman investigation Although government tender had incorrectly charged for time when Information was sought from the processes can on occasion be they were not in attendance. Board in relation to both issues, i.e. onerous for businesses to respond whether the time taken to process to, in my view this particular process Ombudsman investigation the application was unreasonable and was not so onerous so as to deter My office established that the whether the acceptance of the late potential applicants. charges were supported by records application was procedurally unfair. of attendance times, and I concluded I concluded that the advertising and that they were properly incurred for In relation to the first issue, dissemination of information was the work performed on the broken information obtained from the Board appropriate and comprehensive, and pipe caused by the contractor. showed that: did not favour one applicant over any other. I commented about the However, in view of the dispute in · the application was lodged by the need for the department in any future attendance times, the agency decided school on 12 June 2009 tender process, to consider the timing to reduce the charges relating to the and content of information to be attendance time of the second crew · the Board wrote to the school on conveyed to current service providers by one hour. In addition, it also waived 25 June, stating that it could not before a new tender process begins. charges for one of the replacement process a number of applications, pipes. Therefore the complainant’s including the student’s, because they The decision by the Board, on total account was reduced by $290. did not include the required evidence. receipt of a complaint, to conduct the In the student’s case, the missing recalculations and later the shadow Outcome and opinion evidence was a handwritten essay evaluation of the process was in my An adjusted account was provided to · The school wrote to the Board on opinion prudent and appropriate. In the complainant, based on a goodwill 7 September seeking information my view it is important for agencies gesture by the agency. This fact was about applicants for whom the Board conducting tender processes to explained to the complainant, who still sought such essays clearly and accurately record any was satisfied with the outcome. departure from an evaluation plan, and · the Board replied the same day and the reasons for the departure. In this South Australian Certificate of the school provided a number of case, the Board’s actions ensured that Education (SACE) Board an error was picked up through the handwritten essays, including one by Failure to deal with special re-evaluation process, and I reiterated the student provisions application for year 12 the importance of this as a control exams mechanism. · the Board received the essays on 10 Complaint summary September and proceeded to assess SA Water The complaint related to the amount the student’s application, advising the school of its decision in writing on 15 Unreasonable financial demand of time taken by the SACE Board to process a Special Provisions October. Complaint summary Application, seeking permission for The complainant had an SA Water the complainant’s daughter (the In the course of the investigation, the easement on his property. As part of student) to use a word processor school advised the complainant that the development of the property he and be given extra time for her it had no record of the 25 June letter. organised for a contractor to erect Year 12 exams. The complaint also Nonetheless, the Board provided a retaining wall. Whilst this was argued that the Board’s acceptance copies of email correspondence with taking place the easement pipe was of the Special Provisions Application, the school, dated 28 July, 19 August damaged. submitted by the student’s school and 21 August that appeared to refer after the Board’s stated due date, was to the June letter. That same afternoon a crew from procedurally unfair. United Water attended and performed In relation to the second issue, some remedial work, but advised The complainant advised that a the complainant asserted that the that the main work would have to be copy of the Board’s decision, that Board had clearly advised schools performed the next day. The following the student ‘is able to participate and students that the due date for morning another crew attended and in assessment (for all of her Year Special Provisions Applications for fixed the pipe. 12 subjects) without the need for pre-existing conditions, was the special provisions’, was received two end of Term 1 (9 April). Therefore, The complainant was sent a bill weeks before the student’s exams she argued, the Board should have from SA Water for the work which started. The complainant stated that rejected the late application and that totalled over $970. The complainant the school had allowed the student this would have given the student questioned whether he was correctly to use a word processor for written some months to prepare to take billed. He raised his concerns with assessments conducted over the her Year 12 exams without special SA Water and his account was not previous two years and the timing of provisions. reduced. Principally, the complainant SACE’s advice of its decision left her thought that he was charged for work inadequate time to prepare to take other than the damage caused by the her exams without special provisions.

33 1NWZUML\PM^QM_\PI\ \PM*WIZLPILVW\IK\ML ]VTI_N]TTa]VZMI[WVIJTa WZ_ZWVOTaQVLMITQVO_Q\P \PQ[UI\\MZ

Based on information provided by the the complainant, may have been Similarly, the complainant suggested Board, the justification for the due perceived as unfair if the Board’s that the college had failed to maintain date is stated on SACE Information general practice is to accept late appropriate documentation when Sheet 37/09, Special Provisions - applications. The student may also deciding to deduct the marks of the External Assessment Variations: have perceived a rejection by the student. Board as unfair, on the grounds that In this way the student will have an she signed the application form in Ombudsman investigation opportunity to work during the year early December 2008, six months My office sought versions of the under the same conditions as have been before the school submitted it. approved for a final external examination. events from the SACE Board and (SACE Operations Manual 2009, p. 169) the college. The SACE Board In conclusion, I formed the view that of South Australia Act 1983 and the Board had not acted unlawfully, Outcome and opinion relevant SACE policies were also unreasonably, or wrongly in dealing considered in order to determine the On the first issue, it appeared that, with this matter. correct procedure to be used by the following receipt of the subject college in this matter. In addition, Special Provisions Application, the A point of interest in this complaint the complainant and the agency Board followed its normal assessment was that the school in question were provided with an opportunity processes, as described in its appeared to have played a critical role to comment on a revised provisional Special Provisions in Curriculum in the application process. However, views report created by my office. and Assessment Policy and its it is a private school and therefore Operations Manual 2009, published the Ombudsman is not empowered My office also sought legal advice on its website. to investigate its administrative acts. from the Crown Solicitor’s Office This point was confirmed to the in order to determine what parts, Based on the information provided, complainant. if any, of this complaint could be it appeared that the delay in the investigated under the jurisdiction of Board starting its assessment of South Australian Certificate of the Ombudsman Act. the application was due to the time Education (SACE) Board taken by the school to provide all of Unreasonable penalty on student Outcome and opinion the required evidence stipulated in the Policy. According to the Board, Complaint summary My predecessor held the provisional the five weeks taken to complete its The complainant wrote to my office view that this complaint was fully assessment was about normal. on behalf of his daughter, a minor within jurisdiction. I sought legal doing year 11 at a college. The advice about my jurisdiction to On the second issue, the Board daughter had received a grade which investigate the complaint and advised that there is no statement was reduced by 50% due to another provided a revised provisional view to about penalties or processes for late student plagiarising her work. The the complainant and the agency. Special Provisions Applications in its complainant was of the view that policies or procedures. The Board procedural fairness and natural justice I formed the view that only the actions also advised that a high proportion had not been afforded since the child of the SACE Board, and not the of such applications are lodged had not been accompanied with a college, were within my jurisdiction. and accepted after the due date. A guardian, support worker or parent This is because an instrument rejection of the student’s application when being interviewed about the delegating a statutory authority must by the Board, as suggested by possible plagiarism. be ‘clear and unequivocal’.

34 \PMZM_I[VWM^QLMVKM\W [PW_\PMKWUXTIQVIV\PIL JMMVLMVQMLXZWKML]ZIT NIQZVM[[

The SACE Board had delegated for the doctorate, and alleged that there was no evidence to support the the responsibility for interpreting the university failed to strictly comply assertion that the person functioned the Supervision and Verification of with the procedures in place at the as an arbitrator. Students’ Work and the Breaches relevant time. This included the of Rules policies to the college. selection of the examiners to assess The university’s Students Appeal However, in this case I found that the thesis, and the approach to be Committee found that the the documents which the SACE taken in the event of there not being complainant’s appeal was lacking in Board relied upon as instruments a consensus among the examiners. substance, and there was no evidence of delegation were not ‘clear and The complainant was also critical to show the complainant had been unequivocal’ delegations of its of the various supervisors assigned denied procedural fairness. I too statutory power. to assist in the development of the formed an opinion that there had thesis. been no administrative failure on the I was unable to investigate the actions part of the university in not awarding of the college, and I had no evidence The complainant provided the doctorate. of any administrative error by the comprehensive documentation SACE Board. Accordingly I was of outlining his communications with the the view that further investigation university. I considered the reports could not be justified. of the various examiners involved in assessing the thesis, and records University of Adelaide of the university relating to the Lack of procedural fairness various appeal processes that the complainant used. Complaint summary The complainant had for a number Outcome and opinion of years been undertaking a course The examiners who marked the thesis of study to obtain a doctorate. He at first instance were unanimous submitted a thesis in 2005 (which that it needed to be revised and subsequently had to be resubmitted) resubmitted. In doing so, the but ultimately failed to obtain the level complainant in my view failed to have of academic performance to justify proper regard to the comments made the awarding of the doctorate. The by the examiners, or the assistance complainant exhausted the various provided by his supervisors. avenues available to him through the university complaint and appeal As a result of the range of mechanisms. assessments made by the examiners, the university appointed a third Ombudsman investigation examiner, and the complainant I conducted a preliminary expressed concerns about this investigation. The complainant sought examiner’s role. He stated that to raise issues of racial discrimination he was subsequently told that the that were beyond my jurisdiction. examiner was in fact discharging the The complainant sought to rely on role of an arbitrator as opposed to changes to the procedures in applying an examiner per se. In my opinion

35 Other Authorities Complaints Received 1 July 2009 to 30 June 2010

Aboriginal Lands Trust 1 0.2% Adelaide Cemeteries Authority 3 0.5% Adelaide Health Service Inc 3 0.5% Adelaide Metro 3 0.5% Central Northern Adelaide Health Service 74 12.9% Children, Youth & Women’s Health Service 5 0.8% Commissioner for Equal Opportunity 4 0.7% Coroner 6 1.0% Country Fire Service 3 0.5% Country Health SA 6 1.0% Courts Administration Authority 24 4.2% Dental Board of South Australia 10 1.8% Department of Health 4 0.7% Development Assessment Commission 2 0.4% Director of Public Prosecutions 2 0.4% Domiciliary Care SA 2 0.4% Drug & Alcohol Services SA 3 0.5% Eastern Mental Health Services 1 0.2% Flinders University Council 7 1.2% Guardianship Board 16 2.8% Health & Com Services Complaints Commissioner 39 6.8% HomeStart 7 1.2% Institute of Medical and Veterinary Science 1 0.2% Land Management Corporation 2 0.4% Legal Practitioners Conduct Board 5 0.8% Legal Services Commission 14 2.4% Liquor & Gambling Commissioner 3 0.5% Lotteries Commission 1 0.2% Medical Board of SA 34 6.0% Motor Accident Commission 14 2.4% Mt Gambier & Districts Health Service Inc 1 0.2% North Western Adelaide Health Service 2 0.4% Northern Adelaide Waste Management Authority 1 0.2% Nurses Board of SA 5 0.8% Nursing & Midwifery Board South Australia 4 0.7% Office of Consumer & Business Affairs 39 6.8% Optometry Board 1 0.2% Pika Wiya Health Advisory Council 1 0.2% Public Advocate 7 1.2% Public Trustee 79 13.8% Repatriation General Hospital 1 0.2% Residential Tenancies Tribunal 5 0.8% RSPCA Inspectorate 7 1.2% SA Ambulance Service 20 3.5% SA Community Housing Authority 7 1.2% SA Psychological Board 1 0.2% SACE Board of SA 3 0.5% Sheriff 1 0.2% South Australian Dental Service 2 0.4% South Australian Tertiary Admissions Centre 3 0.5% South Australian Tourism Commission 1 0.2% Southern Adelaide Health Service 16 2.8% Super SA Board 12 2.1% TransAdelaide 4 0.7% University of Adelaide Council 11 1.9% University of South Australia Council 19 3.3% Veterinary Surgeons Board 1 0.2% WorkCover Corporation 19 3.3% WorkCover Ombudsman 1 0.2% Total 573 3.7%

36 Other Authorities Complaints Received: Issues 1 July 2009 to 30 June 2010 Other Central Northern Adelaide Health Service Health & Community Services Complaints Commissioner Medical Board of SA Office of Consumer & Business Affairs Public Trustee Total Percentage Access to educational services 1 1 0.2% Access to information 3 3 0.6% Access to treatment 10 14 1 25 5.2% Administration 76 9 11 16 15 19 146 30.3% Administrative practices/Policies 67 7 8 5 12 19 118 24.5% Animals 1 1 0.2% Citizens’ rights 1 1 0.2% Communication 2 1 3 0.6% Complaint handling/Delay 4 1 1 3 9 1.9% Complaint handling/Inadequate processes 11 1 6 1 19 4.0% Complaint handling/Inadequate reasons 4 1 2 3 2 12 2.5% Complaint handling/Inadequate remedy 1 1 1 3 0.6% Complaint handling/Wrong conclusion 3 2 1 3 9 1.9% Conduct/Discourtesy 1 1 1 1 4 0.8% Correspondence/Communications/Records/ Delayed/No response 4 2 6 1.3% Correspondence/Communications/Records/ Withholding of information 1 1 0.2% Correspondence/Communications/Records/Wrongful disclosure of information 1 1 0.2% Daily routine 2 2 0.4% Duty of care 6 3 9 1.9% Employment 1 1 0.2% Fees/Charges/Levies 8 8 1.7% Financial assistance 1 1 2 0.4% Financial issues 11 5 16 3.4% Financial/Procurement/Facilities/Compensation/ Damage/ Property lost/Damaged 1 1 0.2% Financial/Procurement/Facilities/Debts 2 1 3 0.6% Financial/Procurement/Facilities/Facilities owned/Controlled by Authority/Sale/Lease 1 1 0.2% FOI Practices and procedures 1 1 0.2% Funding 1 1 0.2% Health 1 1 0.2% Housing 2 2 0.4% Improper release of documents 1 1 0.2% Medical 1 5 1 7 1.5% Officer misconduct 1 1 1 3 0.6% Parking 1 1 0.2% Patient rights 3 3 0.6% Planning and development 1 1 0.2% Quality of treatment 10 5 1 16 3.4% Rates and charges 1 1 0.2% Records management 2 2 4 0.8% Regulation and enforcement/Enforcement action/Unfair 1 1 0.2% Regulation and enforcement/Enforcement action/Excessive 1 1 0.2% Regulation and enforcement/ Infringements/Inadequate review 2 2 0.4% Regulation and enforcement/Fees 2 2 0.4% Regulation and enforcement/Licensing/ Conditions 1 1 0.2% Regulation and enforcement/Licensing/Refusal 1 1 2 0.4% Services 2 1 3 0.6% Service Delivery/Abuse in care 1 1 0.2% Service Delivery/Assessment 1 1 0.2% Service Delivery/Eligibility for services 1 1 0.2% Service Delivery/Failure to act/Provide 1 5 6 1.3%

37 Service Delivery/Fees and charges 2 2 0.4% Service Delivery/Quality 1 2 3 0.6% Superannuation 4 4 0.8% Transfers 1 1 0.2% Workers compensation 4 4 0.8% Total 254 54 29 33 39 70 482 100%

Note: Issues which appear as shaded lines relate to complaints finalised before 15 March 2010, when the new case management system commenced operation.

Other Authorities Complaints Completed 1 July 2009 to 30 June 2010

Aboriginal Lands Trust 1 0.2% Adelaide Cemeteries Authority 4 0.7% Adelaide Metro 2 0.4% Central Northern Adelaide Health Service 73 13.2% Children, Youth & Women’s Health Service 6 1.1% Commissioner for Equal Opportunity 3 0.5% Coroner 4 0.7% Country Fire Service 2 0.4% Country Health SA 6 1.1% Courts Administration Authority 26 4.7% Dental Board of South Australia 10 1.8% Department of Health 4 0.7% Development Assessment Commission 2 0.4% Director of Public Prosecutions 2 0.4% Domiciliary Care SA 2 0.4% Drug & Alcohol Services SA 3 0.5% Eastern Mental Health Services 1 0.2% Flinders University Council 6 1.1% Guardianship Board 15 2.7% Health & Community Services Complaints Commissioner 35 6.3% HomeStart 7 1.3% Independent Gambling Authority 1 0.2% Institute of Medical & Veterinary Science 1 0.2% Land Management Corporation 2 0.4% Legal Practitioners Conduct Board 6 1.1% Legal Services Commission 14 2.5% Liquor & Gambling Commissioner 3 0.5% Lotteries Commission 1 0.2% Medical Board of SA 26 4.7% Motor Accident Commission 14 2.5% Mt Gambier & Districts Health Service Inc 1 0.2% North Western Adelaide Health Service 2 0.4% Northern Adelaide Waste Management Authority 1 0.2% Nurses Board of SA 5 0.9% Nursing & Midwifery Board South Australia 4 0.7% Office of Consumer & Business Affairs 37 6.7% Public Advocate 7 1.3% Public Trustee 77 13.9% Repatriation General Hospital 1 0.2% Residential Tenancies Tribunal 5 0.9% RSPCA Inspectorate 7 1.3% SA Ambulance Service 20 3.6% SA Community Housing Authority 8 1.5% SA Psychological Board 1 0.2% SA Film Corporation 1 0.2% SACE Board of SA 4 0.7% Sheriff 1 0.2% South Australian Dental Service 2 0.4% South Australian Tertiary Admissions Centre 3 0.5% Southern Adelaide Health Service 16 2.9% Super SA Board 13 2.3% TransAdelaide 4 0.7% University of Adelaide Council 10 1.8% University of South Australia Council 18 3.3% Veterinary Surgeons Board 2 0.4% WorkCover Corporation 18 3.3% WorkCover Ombudsman 1 0.2% Total 551 100%

38 Other Authorities Complaints Completed: Outcome 1 July 2009 to 30 June 2010 Other Central Northern Adelaide Health Service Courts Administration Authority Health & Community Services Complaints Commissioner Office of Consumer & Business Affairs Public Trustee Total Percentage Advice given 151 44 17 19 16 28 275 49.9% Alternate remedy available with another body 16 8 4 2 1 31 5.6% Declined 21 3 1 1 1 5 32 5.8% Declined/No sufficient personal interest or not directly affected 2 1 3 0.5% Declined/Trivial, vexatious, etc 1 1 0.2% Declined/Withdrawn by complainant 1 1 0.2% Not substantiated 17 1 5 4 5 32 5.8% Out of Jurisdiction 5 1 1 7 1.3% Out of Jurisdiction/Employment 1 1 0.2% Out of Jurisdiction/Judicial body 3 1 1 5 0.9% Out of Jurisdiction/Police matter 1 1 0.2% Preliminary investigation 35 14 4 1 8 13 75 13.6% Referred back to agency 31 1 1 4 1 15 53 9.6% Resolved with agency cooperation 5 2 6 13 2.3% S25 Finding/Unreasonable 1 1 0.2% S25 Finding/Wrong 1 1 0.2% Withdrawn by complainant 13 2 1 3 19 3.5% Total 303 73 26 35 37 77 551 100% 55.0% 13.2% 4.7% 6.4% 6.7% 14.0%

Note: See Appendix 2 for definitions of outcomes

39 Freedom of Information

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Adelaide City Council · the council did not express an · the fact that the council resolved to A councillor’s private document opinion of the merit or otherwise of provide the CD to its consultants provided to council can be subject the properties identified in the CD and authorise expenditure on their to FOI fees incurred in their assessment · market values of the properties may of the CD, were additional public Application for access be unnecessarily affected if the CD interest reasons supporting the CD’s The Adelaide City Council had was released, particularly if they are disclosure. (I referred to section 8 engaged consultants to undertake not proposed for the heritage listing of the Local Government Act and a survey of the city and make in the final DPA, which was to be the accountability obligations of a recommendations on potential released for public consultation council.) heritage places as part of a Development Plan Amendment (DPA) · revealing the properties being · although I had no reason to doubt process. A councillor with expertise considered for heritage listing may the intentions of the councillor, in the area had developed his own cause unnecessary demolition it could be perceived that as a list of possible heritage places, and heritage and restoration specialist, archival and current photographs of · the CD was not publicly available the councillor may stand to benefit properties, on a CD. as it was never tabled or received (albeit indirectly) from providing at the council meeting and never his CD through council to the The council resolved at a meeting formed part of its agenda. consultants. No other parties were to provide a copy of the CD to the invited by the council to provide consultants without expressing an Ombudsman review their views to the consultants. This opinion about the heritage status of After receiving submissions from both suggested that a greater degree the properties, and authorised the parties, I did not agree with council’s of openness was required, and the council to pay additional professional view. While I agreed that the CD was public interest in the CD’s release fees to the consultants to consider a ‘pre-decisional document’ under the was amplified. the CD. The council did not formally exemption, I was not persuaded that consider the contents of the CD; and disclosure was on balance, contrary to · even though the DPA process had the CD was not tabled or reviewed at the public interest. I took into account not been finalised, this did not mean the council meeting. the following public interest reasons: of itself that disclosure of the CD would offend the public interest The applicant requested access to · the public interest in the the CD under the FOI Act, but was achievement of the objects of the · it was arguable that there was refused on the basis of the ‘internal FOI Act a public interest in maintaining working document’ exemption under confidentiality of the ‘proposed list’ the Act. · although the CD was not on the of buildings prior to the DPA public ‘public record’ (thus making it consultation process and council The council determined that available for public inspection under seeking interim development control disclosure of the CD would be the Local Government Act ), the fact from the Minister contrary to the public interest that the CD was publicly discussed because by the council and formed the basis · it is in the public interest that the for a resolution by council supported heritage value of properties be · it had not finalised its deliberations the public interest in its disclosure maintained. However, I considered on the DPA that the public was able to differentiate between the contents

40 of the CD, which represented Central Northern Adelaide extended this invitation to the one person’s view about the Health Service (Modbury applicant. heritage worth of the identified Hospital) properties, and the consultant’s Complaint about the agency’s Determination and comments and Council’s ‘proposed list’ which response to an FOI application A valid FOI application should be later had been submitted for the Application for Access actively dealt with in accordance government’s consideration. In with the FOI Act. It is not sufficient The applicant applied for access to any event, the Council’s current to simply refuse to deal with an FOI video surveillance footage held by DPA heritage listing process was application pursuant to a policy of the Modbury Hospital, a unit within public knowledge. I considered the agency. This is so even though the Central Northern Adelaide Health that property owners would make it the policy may be relevant to an Service. their business to inform themselves assessment of whether or not a about the possibility of heritage document is exempt under the FOI The applicant contacted my office listing of their properties, and that Act. development applications seeking to raise two concerns about the agency’s response to his application: demolition may occur despite the Section 20(1)(a) of the FOI Act release of the CD. provides that an agency may (a) An accredited FOI officer of the refuse an application for access agency returned his application I did not agree with council’s to a document if it is an ‘exempt and application fee without dealing submission that the disclosure of document’. In this event, however, the with his application under the FOI communications made in the course agency must specify the exemption Act. The applicant stated that of the development of a policy is not clause (or clauses) relied upon and the accredited FOI officer instead in the public interest. I considered provide reasons for the refusal, unless advised him that the agency this was generalised speculation, and doing so would result in the notice of does not release such footage to failed to consider the contents of determination itself being exempt. the CD – which were the expression members of the public, but would release it to the police or pursuant of one councillor’s view about the Pursuant to section 13(c) of the FOI to a subpoena. heritage status or otherwise of Act the application fee (if applicable) properties. must accompany the application, (b) When the applicant requested otherwise the application may be an FOI application form he I considered that the general public invalid. Despite the incorrect advice was advised not to provide the would have sufficient knowledge from the agency, the applicant in this application fee when he lodged of the DAP processes to be able case had forwarded the application the form, contrary to the FOI Act. to understand the status of the fee at the time he made his FOI CD – that it was only one view of application, thereby satisfying section Ombudsman review an individual which contributed to 13(c). the consultant’s list and the list of My delegate contacted the agency’s possible heritage sites ultimately accredited FOI officer and obtained By the time that the applicant proposed by Council. If the council the agency’s response to the contacted my office, it was apparent believed there was likely to be applicant’s concerns: that the agency was deemed to have confusion, it was at liberty to clarify refused his application under section the ‘status’ of the CD to the public. (a) The officer conceded that the 19(2) of the FOI Act. As a result, I application was valid (in other advised the applicant of his right to I considered that the public was able words, that it satisfied the criteria apply to the principal officer of the to understand that the CD may not set out in section 13 of the FOI agency for internal review. contain reasons for a decision made Act). The officer claimed that his as to the finalised DPA, because of response to the applicant was City of Charles Sturt its very nature as a ‘pre-decisional’ consistent with a policy of the External review of a refusal to deal document. It was the view of one agency to protect the privacy of with an FOI application person only, and not that of council. individuals whose images may also be captured on the video Application for access Determination and comments surveillance footage. The applicant applied to the council I determined to reverse the council’s for access to documents relevant to determination, to provide access to (b) According to the officer, he the St Clair land swap for 2007, 2008 the CD. sometimes advises applicants and 2009. (usually law firms) to forward one This case highlighted the need cheque to cover the application The council initially refused to deal for agencies to provide specific fee and any costs associated with with the application under section reasoning for their determinations, processing the application after 18(1) of the FOI Act. It predicted based on the circumstances and the application has been dealt that it would take two staff members contents of the actual documents. with, rather than two separate approximately 70 days to deal Generalised speculation about the cheques. The officer noted that with 9000 or more documents adverse consequences of disclosure the person who replaced him identified, at a cost to the council of a document will not be sufficient to while he was on leave may have of approximately $50,000. As the justify refusal. 41 applicant was a concession card five documents pending the outcome made by officer[s] of DECS or the Chief holder the council was unable to pass of its consultation with third parties. Executive’ and that was the version dated its costs onto him. 13 May 2009. However … this version Determination and comments has not been submitted to the Chief Executive of the agency. The applicant sought internal review, My external review was finalised after narrowing his application to the following the second settlement Following my 2009 external review, period from 2007 to 28 April 2008. conference. I commend both parties I therefore concluded ‘that no Following internal review the council for their willingness to negotiate and document exists which strictly fits confirmed its refusal to deal with the the settlement they achieved as a within the wording of the applicant’s application. result. FOI request’. Ombudsman review In this document-rich society, This prompted the applicant in agencies faced with large applications My office asked the council to make April 2010 to seek access to the will in my view benefit from exploring a provisional assessment of the ‘Independent Evaluation into the with applicants the possibility of documents captured by the narrowed Family Unit at Rose Park Primary using defined search terms when internal review application. Electronic School by Mr Doug Moyle… as conducting their electronic searches. searches revealed approximately submitted by Mr Moyle on 13 May It is relevant to note, however, that 1740 documents, which the council 2009’ (the 2010 application). estimated would take 92 days to deal manual searches may still be required. with at a cost of $27,000. The department failed to actively Department of Education and determine the 2010 application Children’s Services One of my delegates subsequently and was therefore deemed to have met with the parties on two occasions External review of a deemed refused access to the original to try to effect a settlement under refusal evaluation by reason of section 19(2) section 39(5)(c)(i) of the FOI Act. Applications for access (b) of the FOI Act. Based on an In 2008 the department agreement reached during the 2009 At the first settlement conference commissioned an independent application I took the view that the both parties agreed to the council evaluation of the Rose Park Primary deemed determination was made by conducting electronic searches for School Family Unit. On 13 May or at the direction of the department’s documents using two sets of search 2009, consultant Mr Doug Moyle principal officer (also the Chief terms: ‘st clair’ plus ‘revocat*’ and ‘st provided his independent evaluation Executive), and internal review was clair’ plus ‘community land’. This was (the original evaluation) to the not a prerequisite to external review an attempt to exclude documents department. on this occasion. that the applicant did not want access to, for example about ongoing On 17 July 2009 the department’s Ombudsman review maintenance issues. After further Chief Executive provided an amended In May 2010 I requested preliminary narrowing the application for access, version of the evaluation to the Rose information from the department. the council agreed to provide certain Park Governing Council for review When the department failed to provide publicly accessible documents to on a ‘confidential basis’. Following the requested information, I made a the applicant, along with a list of further amendments, the Chief provisional determination. In so doing documents captured by the further Executive released the ‘final’ version I had regard to what I understood to narrowed application. of the evaluation to the Rose Park be a copy of the original evaluation school community on 30 July 2009 provided in the context of my previous At the second settlement conference, (the final evaluation). external review. At the same time the council provided the applicant I invited submissions from the with publicly accessible documents In September 2009 the applicant applicant, the department, and two and lists showing 22 documents sought access to a copy of Mr third parties. containing the keywords st clair’ Moyle’s report ‘as submitted to the plus ‘revocat*’ and 69 documents Chief Executive, without alteration or In response to my provisional containing the keywords ‘st clair’ plus changes made by officers of DECS determination, the department ‘community land’. From the lists, the or the Chief Executive’ (the 2009 claimed that the document ‘should applicant identified 48 documents application). The applicant applied not be released to the applicant’ to which he sought access (after to my office for an external review of by reason of clause 9 of Schedule excluding duplicates and other the department’s refusal to release 1 to the FOI Act (internal working documents). The council agreed a document it had erroneously documents). If I did not accept this to deal with the further narrowed assessed as being within scope of the claim, the department asked that I application and to make an active 2009 application. consider releasing the report after determination by 30 July 2010. deleting literacy and numeracy results I say erroneously, because during my considered to be exempt under On 24 June 2010 the council review I discovered: clauses 6(3a) (personal affairs), released 42 documents in full and 13(1)(a) or 13(1)(b) (confidential one document in part to the applicant. that there was one version of the information), and ‘personalised The council deferred making a Evaluation which was solely authored by comments’ considered to be exempt determination regarding the remaining Mr Moyle ‘without alteration or changes

42 under clause 9(1). The applicant Personalised comments released to the school community. and one of the third parties also Given the acknowledgement of In my view this would be likely to responded to my provisional the ‘openness and honesty of all contribute to ongoing debate about determination. contributors within the confidential the future of the Family Unit. confines of the evaluation process’ in Determination and comments the original evaluation, I considered I considered the factors against Although the 2010 external review clauses 13(1)(a) and 13(1)(b), even release submitted by the department. was finalised very early in the 2010- though these were not expressly The contents of the original 2011 reporting year, the history of the raised. I took the view that it did not evaluation put the document into 2009 and 2010 applications are such necessarily follow that participants context; it clearly identified the that I consider it appropriate to report were promised confidentiality, or that author and obviously pre-dated the on them in this Annual Report. the department was bound by any Chief Executive’s decision regarding such agreement. Further, I noted that the future of the Family Unit. As The whole document comments were generally attributed such, I did not consider the lack of opportunity for people and groups to I accepted that the original evaluation to groups rather than individuals, and respond to comments about them to fell within the broad category of that the Chief Executive announced be a factor against release. an internal working document. that the report would be made public, However, in order to satisfy clause which in my view would have put I accepted that some of the 9(1) an agency must also show that participants on notice as to how their comments in the original evaluation disclosure of the document would, contributions would be treated. may not be appreciated by opposing on balance, be contrary to the public sides of the debate. However, most interest. Notwithstanding the department’s claims that release of certain of the comments, or the substance of them, were in the public domain. There was insufficient evidence to ‘personalised comments’ would be Given this, I did not accept that satisfy me that the original evaluation contrary to the public interest, and release of author’s perspective of the was exempt under the confidentiality would therefore be exempt under different views would further damage exemption, despite the claim by clause 9(1), some of them, or their relationships. Most of the contributors one third party that there was ‘a substance, had been released as part to the evaluation have an interest in verbal agreement that it [the original of the final evaluation, or seemed the Family Unit’s future, and therefore evaluation] would be confidential’. to be generally well-known. Other comments merely reflected the an interest in putting forward arguments in support of their views. Literacy and numeracy results author’s opinions or his understanding of other people’s views. Given this, the fact that comments are I accepted that literacy and numeracy generally attributed to groups rather results in the document concerned Public interest than individuals, and information people under 18 years of age, as already in the public domain, I was not When assessing the public interest required by the personal affairs satisfied that disclosure of the original (which was relevant to claims under exemption clause 6(3a)(a). I did not evaluation would result in people clauses 9(1) and 13(1)(b)), I had accept that it would be unreasonable refusing to participate in similar regard to the public interest in to release the results having regard reviews in the future. to the need to protect the students’ promoting openness, accountability and public participation within welfare, because in my view it was On balance, I was not persuaded that representative government. I noted not possible to attribute specific disclosure of the original evaluation the reasons behind the preparation results to individual students as they would be contrary to the public of the original evaluation (including appear as averages in the table. In interest in these circumstances. addition, I noted that similar sorts to ‘[g]enuinely consult [the school community] and consider the full rage of results had been released to the Accordingly, I reversed the of opinions and perspectives’); the school community as part of the final department’s determination, pursuant uncertain future of the Family Unit, evaluation. to section 39(11) of the FOI Act, to notwithstanding the Chief Executive’s enable the original evaluation to be decision regarding its future; and Because I was not satisfied that the released to the applicant. literacy and numeracy results in the information in the public domain. original evaluation would disclose By way of comment, I considered In this case, I concluded that there the results of individual students, I that the department’s conduct was a strong public interest in the was not persuaded that their release had prolonged my external review school community having access to would found an action for breach of unnecessarily. In addition, it the detailed original evaluation to confidence under clause 13(1)(a), contributed to a deterioration of the allow members to see the information or might reasonably be expected to relationship between the applicant available to the department before prejudice the future supply of such and the department, and a growing the Chief Executive made his decision information to the Government or sense of mistrust. to an agency as required by clause regarding the future of the Family 13(1)(b)(i). Unit, and to compare the author’s views as an independent expert to the views expressed in the final evaluation

43 Environment Protection the document had later been provided · it would the harm the public interest Authority to DPAC (the revised report). if the EPA’s views about the landfill Internal working documents - The revised report was one of the issues and the DPA were not clearly public interest submissions documents which was released to the articulated to the public and the applicant after internal review. government. Application for access In 2009, the Minister for Urban I asked the EPA to highlight the · the information appeared to reflect Development and Planning was differences between the initial and the EPA’s final views on the DPA and required to make a decision on the the revised reports, and also the the landfill issues: the initial report rezoning of land near Highbury reasons why the initial report had was not written in ‘draft format’. to allow residential housing, been withdrawn and replaced by It was in fact sent to the DPAC as part of a Development Plan the revised version. My office then and then recalled after concerns Amendment process (DPA) under the identified that in fact, there was were raised about the accuracy Development Act 1993. The rezoning only a small amount of information of its contents. In this context, I also involved the eastern boundary of in the initial report which was not considered it would be contrary to two closed landfill sites. reflected in the revised report (the the public interest if the information information), over which a claim of was released, as the views reflected The Development Policy and exemption could be made. appeared to be the final views of the Advisory Committee (DPAC) and the agency - and in fact they were not. Department of Local Government The EPA submitted that the and Planning (DPLG) were to provide information did not reflect the EPA’s · in this instance, confusion would advice to the Minister prior to making views about the landfill issues as feasibly be generated within the this decision. The Environment accurately as it should have, and community about the EPA’s position Protection Authority (EPA) made that the views expressed were in relation to the DPA and the landfill, submissions to DPAC for its use in inconsistent with the views which had if the information was disclosed. developing the advice. been previously communicated by the This would be contrary to the public EPA to DPLG about the landfill. For interest. A journalist applied under the FOI this reason, the initial report had been Act to the EPA for access to these recalled and replaced by the revised I was persuaded that the public submissions. version. The EPA’s public interest interest arguments against disclosure submissions under clause 9(1) were: of the information outweighed the The EPA determined to refuse access public interest factors in favour of to the three documents which fell · if the information was released, the disclosure under clause 9(1). within the scope of the application community may be confused about under clause 9(1) of Schedule 1 to the EPA’s position in relation to the Determination and comments the FOI Act, the ‘internal working DPA I varied the EPA’s determination document’ exemption. to protect the information from · it would not further the good disclosure, but to enable the release The Minister later decided that on government of the state if a view of the remainder of the initial report the recommendation of the EPA, the is made public which does not which was replicated in the revised Highbury rezoning would be put on represent the considered opinion report. hold to enable further independent of the EPA, and which may cause environmental testing in relation to unnecessary concern This case was one of the rare the eastern boundary of the landfills. instances where an agency ultimately On internal review, the EPA · the publication of ‘poorly worded’ has been able to present clear and determined to give access to two of and ‘flawed advice’ in the information persuasive reasons for justifying the three documents in light of the which was promptly withdrawn, refusal of access to information Minister’s decision. would not advance more effective under the public interest test in the participation by members of internal working document exemption. Ombudsman review the public in the making and The arguments were appropriately The applicant requested my review of administration of laws targeted to specific information in the determination to refuse access to the document, and they were not the remaining document, contending · potential development at Highbury is generalised and speculative. that ‘release of the document is a matter of public interest. It would clearly in the public interest on the not promote the effective conduct Subsequent to my review, the grounds the Highbury rezoning plan of public affairs if public discussion applicant invited my office to provide will affect a large number of residents was diverted by the publication of an FOI workshop for other journalists and new home owners in the area.’ information which may be taken to in his organisation about the express the views of the EPA when operation of the FOI Act. During my review, I learned that the in fact it does not. document to which access had been refused had initially been submitted I weighed up these factors against to DPAC by the EPA (the initial the objects of the FOI Act and open report), but had been withdrawn and accountable government, and I within the hour. A revised version of accepted on balance that

44 Department for Families and Ombudsman review Determination and comments Communities My office obtained submissions from I was satisfied that the documents Whether documents were within the applicant, the department, and relevant to applications 1 and 4 the scope of applications and the Guardian for Children and Young contained personal information of whether claims of exemption were People (the Guardian). people within the meaning of section justified 58(1) of the CP Act. I was further Applications 2 and 3 satisfied that the information was The full text of this determination During the course of these reviews obtained by staff of the department in is available at http://www. I wrote to the department and the course of their employment duties ombudsman.sa.gov.au/freedom-of- expressed the provisional view that and for the purpose of administering information/79970D01.pdf the documents identified by the the CP Act. X’s consent to release department as within the scope information about him is not an Application for access of applications 2 and 3 were out exception to section 58(1) of the In late 2007, X, a former foster carer, of scope, ‘and the department’s CP Act. Further and in any event, was acquitted by a Supreme Court determination[s] should be varied to the information in the documents jury of charges alleging that he had conclude that no documents exist concerned the personal affairs of sexually abused youths in his care. within the scope of the application[s]’. more than one person.

On 30 October 2008 the applicant On reflection the department When interpreting the word ‘divulge’ asked a question of the Minister for agreed with my provisional views. I in section 58(1) of the CP Act, I had Families and Communities in the therefore varied the Department’s regard to a judgment of his Honour Parliament about the investigation of determinations to conclude that the Judge Smith of the SA District Court: X by the Special Investigations Unit department held no documents within of the Department for Families and the scope of applications 2 and 3. In my view, the plain and ordinary meaning of “divulge” is to disclose. It does not Communities (the department). 2 necessarily convey the imparting of that The Minister’s response included the Applications 1 and 4 which is previously unknown. Further, following statements: Given the department’s concession given the objectives and principles regarding applications 2 and 3, underlying the CP Act [the care and We had people going into that house and my consideration was limited to protection of children], I am of the view that finding semi-naked boys in his [X] bed. applications 1 and 4. The department the word “divulge” should be construed so [And after interjections] If you want me to as to give paramountcy to protecting the go into detail I can. It is very unsavoury. 3 refused the applicant access to child’s interests. Its meaning should not these documents under clause 12(1) be confined to the disclosure of otherwise The Minister reportedly ‘relied on of Schedule 1 to the FOI Act, in unknown or secret information. It should documentation provided by the conjunction with section 58(1) of the include that. There are difficulties in the department’s special investigations Children’s Protection Act 1993 (the qualified construction. For instance, whilst unit’ when making her statements to CP Act). some information might be known to an applicant he or she may not be aware that the Parliament. 4 Clause 12(1) deals with documents it has been obtained by the agency. So in accessing the information the applicant will The applicant subsequently made 4 that are subject to secrecy or know that the agency has that information. applications to the department for confidentiality provisions in other The disclosure of the fact of that holding access to relevant documents. He legislation. It provides as follows: would amount to divulgence. Also, such specifically excluded information that a narrow interpretation would require the would identify any children allegedly A document is an exempt document if it agency to indulge in what I would regard contains matter the disclosure of which involved. as an intolerable task of speculating about would constitute an offence against an what the applicant may or may not know. Act. In the end, the more expansive meaning The department refused access to is consistent with ensuring the protection documents considered to be within The department relied on section of the child and so consistent with the the scope of the applications. During 5 58(1) of the CP Act: objectives of the Act. my reviews the department consented to de-identified descriptions of the A person engaged in the administration I was also mindful of suppression documents relevant to application 4 of this Act who, in the course of orders relevant to the committal being provided to the applicant, but that administration, obtains personal hearing, and over certain evidence objected to de-identified descriptions information relating to a child, a child’s relevant to the Supreme Court trial. of the documents relevant to guardians or other family members or any applications 1, 2 and 3 being provided. persons alleged to have abused, neglected I concluded that it was practicable or threatened a child, must not divulge that to release parts of the documents information. within the scope of applications 1 and 4. I did not accept that would be a Maximum penalty: $10 000 2 South Australia, Hansard, House of Assembly, 30 October 2008, divulgence for the purposes of section 768 (Ian Evans). 58(1) of the CP Act to disclose under 3 South Australia, Hansard, House of Assembly, 30 October 2008, 768-769 (Jennifer Rankine). the FOI Act the actual words used 4 Hendrik Gout, ‘Minister accused of misleading Parliament’, The by the social worker or the former Independent Weekly (Adelaide, Australia) 14 November 2008,2. 5 Ward vCourts Administration Authority [2003] SADC 18 (Unreported, Judge Smith, 21 February 2003 [57].

45 foster child, where they had given ministerial officers, but maintained noted that the test ‘is a high one’. 8 evidence about such matters during that the names of departmental the criminal trial. In saying this, I officers were exempt under the risk to Determination and comments understood that such evidence was life or safety exemption (clause 4(1) I balanced the Minister’s submissions, not suppressed, and that relevant (a) of Schedule 1 to the FOI Act). including her concerns about the information of a general nature had effect of the names being released, been reported in the media. Likewise Ombudsman review against the public interest in I did not consider that it would be On external review I sought promoting accountability and public a divulgence to release parts of a submissions from the Minister in participation within representative fourth document having regard to support of her claim of exemption, government, as envisaged by the information provided to the applicant and about her on-air offer to a objects of the FOI Act. with the Department’s consent, and journalist: publicly available information. I considered that the examples ...I would be me more than happy for you provided to support the risk to life Although X had access to documents to come in here and meet my staff, look at and safety claim did not make out a fitting the description of the the list… threat to the life or personal safety documents under review through his of departmental staff. Based on the solicitors, I considered that it would In support of the claim of exemption, examples provided by the Minister, be a divulgence for the purposes the Minister claimed that: she and other Ministers and their of section 58(1) of the CP Act offices appeared to be the primary to disclose the remainder of the · Releasing names of staff in the Minister’s focus of the threats. documents under the FOI Act. The Office could be reasonably expected clear policy underpinning the CP Act to endanger their lives and/or physical safety. While I accept that it is easier to is the care and protection of children, search for information about a and when exercising powers under · There has been a history of threats person using their name, it does not the CP Act the child’s wellbeing against the Minister and the Minister’s logically follow that disclosure of and best interests are paramount staff. There have also been incidents the names of departmental officers considerations. I had this in mind of disturbing and aggressive behaviour could reasonably be expected to when reaching my conclusion, as well directed at the Minister and the Minister’s endanger their lives or physical safety. staff. as the Guardian’s view that release Such information already is easily of the document would not serve the accessible within the public sector. interests of the former foster child. · The nature of the work handled by the Minister’s Office make[s] it likely that the Minister’s staff will continue to be Similarly, I was not persuaded that I varied the department’s exposed to aggressive and disturbing disclosure of names could reasonably determinations with respect to behaviour. be expected to have a substantial applications 1 and 4 to enable parts adverse effect on the effective of the relevant documents to be · Staff of the Office all feel so strongly performance of her functions or on about the issue … released to the applicant. the conduct of industrial relations in the Minister’s office. Minister for Families and Regarding the offer to the journalist, the Minister submitted as follows: Communities I reversed the Minister’s External review of a refusal to determination, thereby enabling the Providing an opportunity for (the journalist) release departmental officers’ to view a list of staff names and extending names of departmental officers to be names that invitation to actually meet staff is released. considered to be vastly different to that of The full text of this determination is releasing an internal document for public Flinders University of South available at http://www.ombudsman. distribution. The reason for not releasing Australia names was … to minimise any potential sa.gov.au/freedom-of-information/ Access to student evaluations of risk to the personal safety of staff. Lucas.pdf teaching and topic performance Application for access Application for access In subsequent submissions, the Minister’s office raised the internal The applicant, a researcher, requested The applicant applied for access to agency operations exemption (clause access from the university to: ‘the names and positions of all staff 16), which requires that a ‘substantial within the Minister’s office, including adverse effect’ on those operations Student feedback surveys and written departmental staff appointed to the must be demonstrated. comment on teaching and courses for first Minister’s office’ as at 1 October year education courses (e.g. EDUC 1101 2009. In the decision of Konieczka v South or equivalent) run in 2005 and 2006 and the number of students enrolled in these Australian Police 6 Judge Boylan courses One document within the scope of concluded that ‘substantial adverse the application was located, namely effect’ refers to an effect that is the document Student Evaluation of Teaching a directory of staff ( ). ‘sufficiently serious or significant to exercises (SET) had been conducted Following internal review, the Minister cause concern to a properly informed for the two first year Education released the names of her six reasonable person’. In addition, he Topics in 2005 and 2006 taught

46 at the university. They comprised · if SET could not be used, it would university’s processes and functions Topic Evaluations and Teacher have a significantly adverse effect on in this case outweighs the benefits Evaluations. The university held the University’s operations of release the SET electronic result reports of the rating scale questions, but the · preservation of the integrity of the · the publication of student comments original hard-copies completed by the existing evaluation processes, of in the ALTC report did not justify students had not been retained. which confidentiality is a necessary release, as in the ALTC Project, part, is in the public interest. staff were active participants. It was The university determined to clearly understood that the staff refuse access to both evaluations The applicant submitted in his request involved would be sharing the survey under clauses 13(b)(confidential for internal review that: results and that the data would material) and 16(1)(iv)(operations of form part of a publicly available agencies) of Schedule 1 to the FOI · the claimed confidentiality report to be submitted to ALTC as a Act. However, the student numbers exemption was misconceived, as requirement of funding. enrolled in each topic were released. a reasonable person would expect The university based its arguments on no substantial change in the rate of Ombudsman review its Policy on Evaluation of Teaching survey completion by students if the After meeting with the university and and Policy on Course and Topic evaluations were released the National Tertiary Education Union Evaluation, Monitoring and Review, (NTEU), the parties submitted both of which set out the rules under · he did not want names of staff, which SET is conducted. and it was unlikely that any student · SET policies and procedures comment could be connected were the subject of an agreement On the confidential material unequivocally with any individual between the NTEU and the exemption, the university argued that: staff member university in 1994 (the agreement). The agreement incorporated · restricted access to SET data and · he agreed to accept the evaluations confidentiality, and release of the results ensures its quality and by year instead of topic, making it evaluations would undermine that viability more unlikely that any teaching staff could be identified. · SET is not a perfect instrument for · confidentiality in the policies protects measuring teaching performance, teaching staff from subjective or · similar information had been and this is why the NTEU is unfiltered comments becoming included in a report Raising the concerned that results of SET are public Profile of Teaching and Learning: kept confidential. Scientists Leading Scientists, which · as only a few staff are involved in was published in an article by the I noted that the agreement foresaw teaching a topic and that information Australian Learning and Teaching the publishing of ‘aggregate Faculty is publicly available, it is not possible Council (ALTC) in December 2008 data’ only. to guarantee anonymity by removing their names from the reports · the restriction of survey data denies I was not persuaded that students · disclosure would show staff the reality that it would be useful would be hesitant to complete that confidentiality could not be to third parties, including those future SET surveys if the evaluations guaranteed. It would be difficult conducting research in this area, fee were disclosed; and I agreed with to engage the assistance of staff paying students and parents and the applicant that the university’s in the conduct of future SET if the other academic staff. submissions in this respect were documents were released. misconceived. In relation to the On internal review, the university Teacher Evaluations, I accepted that On the ‘operations of agencies’ confirmed the determination, adding: it may be possible to learn the names exemption, the university argued: of staff involved in delivering the four · the operation and management topics; and I noted the confidentiality · the SET processes are a valuable of SET relies on an assurance to undertakings in the university’s Policy management tool within the those involved that the material is on Evaluation of Teaching. Although university being provided and will be used the results were favourable to the in confidence in accordance with university and they were dated, I · inability to guarantee confidentiality university policy. considered that disclosure would would have a detrimental effect on place the university in breach of its the university’s ability to conduct SET · disclosure of the evaluations would own policy. amount to a breach of a university · the Teacher Evaluation process is policy, which is a key element of staff Disclosure would therefore undermine primarily a tool informing individual conditions of employment approved the university’s credibility as an performance development. The by the University Council. employer and its trustworthiness process would be untenable as a party in its negotiations if confidentiality could not be · it would not be in the public interest and employment undertakings guaranteed to release the information because with teaching staff. In this way I the potential damage to the considered that disclosure of the

47 evaluations could reasonably be However, in order for the Minister its activity. This is an invaluable tool in expected to have a ‘substantial to hold documents for the purposes ensuring your business is “in sync” with adverse effect’ on the conduct of of the FOI Act he must do so in his government direction. industrial relations by the University capacity as a Minister of the Crown, within the meaning of clause 16(1)(v). rather than as a member of the ALP. I also had regard to quotes attributed to Premier Mike Rann. In response I did not consider that the ALTC The Minister’s office subsequently to Queensland Premier Anna Bligh’s Project was a comparable situation identified 38 documents within the move to ban her ‘ministers from with the one at hand; and I did not scope of the application. In June exclusive business fundraisers’, consider in the circumstances that 2009 the Minister’s office released Premier Rann is reported to have said the applicant’s agreement to access 29 of these to the applicant. that ‘[t]here is a different corporate the evaluations by year rather than by culture in Queensland. And what we topic took the issue any further. Following consultation, the Minister do is disclose everything and that claimed that the names of individuals is the difference.’ 9 The Premier is In relation to the Topic Evaluations, I (other than Ministers and their current further quoted for his commitment found that there was no express or support staff) and organisations in 2002 to ‘lift standards of honesty, implied confidentiality in the Policy were exempt under clause 13(1)(a) accountability and transparency in on Evaluation of Teaching and Policy (confidential information). The ALP, government’: on Course and Topic Evaluation, acting on behalf of SAPB, claimed Monitoring and Review. I was not that the names of the organisations Secrecy can provide the cover behind persuaded that their disclosure were confidential, and that the which waste, wrong priorities, dishonesty and serious abuse of public office may would have the substantial adverse documents were exempt under clause occur. A good government does not fear impact described in clause 16, and 7(1)(c) (business affairs). scrutiny or openness. 10 nor did I consider that release would on balance be harmful to the public Determination and comments The apparent public interest in interest. Under section 39(11) of the FOI Act, there being transparency in political I varied the Minister’s determination to fundraising, as reflected in the media Determination and comments enable the names of individuals and and associated public comments was I varied the university’s determination organisations referred to in the nine relevant in this regard. to enable release of the Topic documents to be released. Evaluations. Ultimately, I was not satisfied that I was not satisfied that the documents disclosure of the documents would, Minister for Health were communicated to the Minister on balance, be contrary to the public External review of a determination or his office in confidence, or that interest. that the Minister held no many of the names had the necessary documents quality of confidentiality required Independent Gambling Authority to found an action for breach of Discretion to extend the time to confidence. The full text of this determination is apply for external review available at http://www.ombudsman. I accepted it was arguable that Application for access sa.gov.au/freedom-of-information/ the identities of the third parties The applicant applied to the Lucas.pdf constituted their business affairs, and Independent Gambling Authority my determination therefore turned on (the IGA) for access to documents Application for access public interest considerations. relevant to an order barring him from The applicant applied for access the Adelaide Casino, including an to documents that referred to SA In assessing the public interest, I audiovisual record of a hearing. Progressive Business since 2005. balanced the submissions raised SA Progressive Business (SAPB) by the Minister and selected third The IGA granted the applicant is the fundraising arm of the South parties, against the public interest in access to various documents, but Australian Branch of the Australian promoting the objects of the FOI Act. refused him access to a copy of the Labor Party (the ALP). The objects of the FOI Act include to audiovisual record. The applicant promote ‘accountability of Ministers’ was nevertheless invited to view the An accredited FOI officer for the and to facilitate public participation audiovisual record. Minister for Health initially determined within representative government. that there were no documents Ombudsman review within the scope of the request. The I took the view that there is a public Under section 39(3)(b) of the FOI Minister confirmed this determination interest in people knowing who has Act, the applicant was obliged to following internal review. had access to the Minister at SAPB apply to my office for external review functions, given that SAPB itself within 30 days after the IGA made its Ombudsman review claims to provide: determination. The applicant applied My office took the view that to my office almost two months late documents intrinsically linked to opportunities for its members to hear and approximately one and a half the Minister’s health portfolio were directly the government’s views and months after the IGA reminded him of intentions across the entire spectrum of within the scope of the application. his right to apply for external review.

48 Section 39(4) of the FOI Act gives me Three applications made by the same Determination and comments a discretion to extend the time for an applicant involved all correspondence I determined that certain of the applicant to make their application for between the department and a documents requested should be external review. consortium of developers in Mount released to the applicant, but my Barker, information concerning the determinations for the three above In considering whether or not to other interests of the consultancy firm matters are subject to appeal to the exercise this discretion, I asked the which produced the Growth Areas District Court. applicant to provide an explanation Report (which fed in to the 30 Year for the delay, and submissions as to Plan), and all documents submitted I was satisfied that the fourth why he thought I should exercise my to the department by a developer and document is exempt under clause 1 discretion. In addition, I invited him its consultants regarding the Gawler of Schedule 1 to the FOI Act (Cabinet to respond to two provisional views East Development Plan Amendment. documents), albeit I suggested that which affected the merits of his some of it might find its way to the application: A fourth matter, which I determined public. early in July 2010 but which relates · That the IGA was not an ‘agency’ to the three above, concerned the Department of Planning and for the purposes of the application, Growth Investigation Areas report Local Government because in reviewing the decision to itself. External review of a determination ban the applicant from the casino it to extend time under section 14A was acting as a tribunal within the At first instance, and then again of the FOI Act meaning of the FOI Act at internal review, the department determined to refuse access to all Application for access · Even if the IGA was an ‘agency’ for relevant documents, other than three The applicant made a submission to the purposes of the application, it ‘with compliments’ slips. In so doing, her local council. She subsequently would be entitled to refuse access the department relied on submissions applied to the department for the to the audiovisual record because from third parties to whom the council’s ‘residential character’ the record was a document that documents in part related. submission for the new residential was prepared in relation to court or development code. tribunal proceedings Ombudsman review It is often the case that commercial The CEO of the department The applicant accepted my invitation entities, whether in relation to determined, under section 14A of the to provide submissions, but failed development matters or otherwise, FOI Act, to extend the time in which to rebut my provisional views or commonly expect to be able to do the department had to process the to adequately explain his delay in business with the government under application. The extension was made applying for external review. conditions of complete confidentiality, because: and therefore expect that all Determination and comments information about them and their the application will involve consultation In the circumstances, I decided not ventures should be exempted from with third parties as required by Sections 25 & 27 of the Act. This consultation to exercise my discretion to extend release to the public. process will not conclude until after the the time for the applicant to apply for expiration of the time limit prescribed external review under section 39(4) Whilst this seems to be a common under Section 14 of the Act. of the FOI Act. industry expectation, I consider it inconsistent with the FOI Act. In my The reasons for the department’s Department of Planning and view, the objects of the FOI Act are determination appeared to me Local Government / Town of at odds with any notion of blanket to be insufficient. It was not, for Gawler confidentiality over commercial instance, obvious who the department External reviews of refusals to matters involving government. needed to consult with. Additionally, release information relating to the question is not whether the large development This is not to say that all information consultation process will have relating to commercial matters will concluded within 30 days, but The full text of these 4 determinations be released to the public if it is whether it is ‘reasonably practicable’ is available at http://www. requested. In certain circumstances, to consult within that period. The ombudsman.sa.gov.au/freedom-of- it may be appropriate that particular period of extension also has to be information/foi-determinations information held by the government reasonable in the circumstances. concerning the affairs of commercial Application for access entities is not released. Obvious Ombudsman review examples might include trade secrets The advent of the government’s 30 At a meeting between my office and specific financial capabilities. In Year Plan has seen an emergence and officers of the department, I these circumstances, it is usually easy of interest from politicians and other ascertained that the main reasons for to tie the particular information to community members in information the extension were did not justify an clauses 7 and 13 of Schedule 1 to concerning new land being re-zoned extension of one month. I considered the FOI Act. for development. that: an extension of two weeks would have been reasonable.

49 \PMZMY]QZMUMV\\PI\IOMVKQM[ U][\R][\QNa\PMQZLMKQ[QWV[VW\ \WZMTMI[MLWK]UMV\[UMIV[ \PI\\PMaVMML\WM`XTIQV_Pa \PMPIZUUQOP\JMZMITQ[ML

Unfortunately, not only had the relates to the life or physical safety Determination and comments department not yet written to of any person) and 4(2)(a)(v) and Cautions regarding ‘class claims’ are, the council for the purposes of (b) (which relates to the security of unfortunately, a repetitive theme in consultation, but the department’s any building, structure or vehicle) of the annual reports produced by my FOI officers were yet to receive the Schedule 1 to the FOI Act. office. In this case, the department relevant document from elsewhere in argued that these types of documents the agency. The department confirmed its contain sensitive information which, exemption claims at internal review if released, could lead to community Determination and Comments so the applicant applied to me for an harm. My office suggested, in the external review. circumstances, that the department However, in my view the requirement expedite the processing of the Ombudsman review in the FOI Act that agencies must application, which might include Put briefly, the department’s justify their decisions not to release ringing and/or emailing the council arguments were that those with documents means that they need rather than formal correspondence. I mischievous minds would use the to explain why the harm might be was pleased to hear that, receiving information within the documents to realised. Only then will I be able to no objection from the council, the do damage to bridges. Whilst it was appropriately consider their exemption department determined to release the abundantly clear that the department claims. document about a week later. would forcefully press its claims that the bridge inspection reports were Department of Transport, Energy exempt in their entirety I encouraged and Infrastructure it to target its arguments to specific External review of a refusal to matter and information within the release information concerning documents. In my view the reports bridges contained much information that The full text of this determination could not be used in the antisocial is available at http://www. manner feared by the agency. ombudsman.sa.gov.au/freedom-of- information/2010-00074.pdf Over the course of the external review, the application was narrowed Application for access to 22 bridge inspection reports, and the applicant was provided with The applicant applied to the copies of those documents, albeit department for access to documents so that he could not identify which containing information about the bridges they related to. condition of bridges in South On the basis that the agency had Australia. failed to identify information within the documents that could assist would-be The department located over 700 wrong-doers, I determined that the documents, the vast majority being department had not justified its claims ‘bridge inspection reports’. Three that the reports, or the identifying documents were released, whilst the features of the bridges they relate to, department claimed the remainder were exempt from release. exempt under clauses 4(1)(a) (which

50 Freedom of Information Matters Received 1 July 2009 to 30 June 2010

Adelaide Health Service Incorporated 1 Adelaide Hills Council 2 Alexandrina Council 2 Attorney-General’s Department 1 Central Northern Adelaide Health Service 14 City of Adelaide 1 City of Burnside 1 City of Charles Sturt 4 City of Holdfast Bay 1 City of Mitcham 2 City of Playford 1 City of Tea Tree Gully 2 Corporation of the City of Marion 2 Corporation of the City of Unley 1 Corporation of the City of Gawler 4 Country Fire Service 1 Court Administration Authority 2 Department for Correctional Services 6 Department for Environment and Heritage 1 Department for Families and Communities 15 Department of Education and Children’s Services 20 Department of Further Education, Employment, Science & Technology 1 Department of Health 8 Department of Planning and Local Government 12 Department of Primary Industries & Resources 5 Department of the Premier and Cabinet 5 Department of Transport, Energy and Infrastructure 3 Department of Treasury and Finance 2 Department of Water, Land and Biodiversity Conservation 1 Development Assessment Commission 1 District Council of Mallala 1 District Council of the Copper Coast 1 Environment Protection Authority 2 Flinders University Council 1 Guardianship Board 1 Legal Practitioners Conduct Board 3 Medical Board of SA 3 Minister for Education & Early Childhood Development 2 Minister for Environment and Conservation 1 Minister for Families and Communities 3 Northern Areas Council 1 Nursing and Midwifery Board South Australia 1 Outside Jurisdiction 3 Port Augusta City Council 1 Public Trustee 1 Residential Tenancies Tribunal 1 RSPCA Inspectorate 1 SA Community Housing Authority 1 SA Housing Trust 3 SA Police 2 South Australian Tourism Commission 1 Southern Adelaide Health Service 11 The Barossa Council 3 Trans Adelaide 1 University of Adelaide 1 Veterinary Surgeons Board 1 Wakefield Regional Council 1 WorkCover Corporation 6 Total 180

51 Freedom of Information Applications for Reviews Received: Issues 1 July 2009 to 30 June 2010 Other Central Northern Adelaide Health Service Department for Families and Communities Department of Education and Children’s Services Department of Planning and Local Government Southern Adelaide Health Service Total Percentage Access to information 89 13 13 18 12 10 155 74.5% Access to documents/Deemed refusal 1 1 0.5% Access to documents/Sufficiency of search 8 1 7 16 7.7% Amendment of records 1 2 3 1.4% Agency Determination to extend time (s14A) 1 1 0.5% Agency Determination to refuse to deal with application/ 1 1 0.5% Voluminous application (s18(1) Agency FOI processing errors/Other 1 1 0.5% Exemptions/Business affairs 2 3 5 2.4% Exemptions/Cabinet documents 1 1 0.5% Exemptions/Confidentiality 1 1 0.5% Exemptions/Internal working documents 2 1 3 1.4% Exemptions/Judicial functions 1 1 0.5% Exemptions/Law enforcement 3 3 1.4% Exemptions/Legal professional privilege 2 2 1.0% Exemptions/Operation of agencies 2 1 3 1.4% Exemptions/Personal affairs 1 1 1 3 1.4% Exemptions/Secrecy provisions in legislation 3 3 6 2.9% Extension of time for application for review (s39(4)) 1 1 0.5% Other - OOJ 1 1 0.5% Total 120 14 20 27 17 10 208 100% 57.7% 6.7% 9.6% 13.0% 8.2% 4.8%

Note: Issues which appear as shaded lines relate to complaints finalised before 15 March 2010, when the new case management system commenced operation. Those appearing in unshaded lines relate to complaints finalised after that date. The unshaded issues will appear in future reports.

52 Freedom of Information Matters Completed 1 July 2009 to 30 June 2010

Adelaide Hills Council 2 Alexandrina Council 2 Attorney-General’s Department 1 Berri Barmera Council 1 Central Northern Adelaide Health Service 14 City of Adelaide 1 City of Charles Sturt 4 City of Holdfast Bay 1 City of Mitcham 1 City of Playford 1 City of Tea Tree Gully 2 Chiropractic and Osteopathy Board of South Australia 1 Corporation of the City of Marion 2 Corporation of the City of Unley 1 Corporation of the City of Gawler 4 Court Administration Authority 1 Department for Correctional Services 5 Department for Environment and Heritage 2 Department for Families and Communities 17 Department of Education and Children’s Services 18 Department of Health 5 Department of Planning and Local Government 11 Department of Primary Industries & Resources 2 Department of the Premier and Cabinet 5 Department of Transport, Energy and Infrastructure 5 Department of Treasury and Finance 1 Department of Water, Land and Biodiversity Conservation 1 Development Assessment Commission 1 District Council of Mallala 1 District Council of the Copper Coast 1 Environment Protection Authority 4 Flinders University Council 1 Guardianship Board 1 Legal Practitioners Conduct Board 4 Medical Board of SA 3 Minister for Environment and Conservation 2 Minister for Families and Communities 3 Minister for Health 1 Northern Areas Council 1 Nursing and Midwifery Board South Australia 1 Outside Jurisdiction 3 Port Augusta City Council 1 Public Trustee 1 Residential Tenancies Tribunal 1 RSPCA Inspectorate 1 SA Community Housing Authority 1 SA Housing Trust 2 SA Police 2 SA Water Corporation 1 Southern Adelaide Health Service 10 The Barossa Council 3 The Treasurer 1 Trans Adelaide 1 Wakefield Regional Council 1 WorkCover Corporation 11 Total 175 Wakefield Regional Council 1 WorkCover Corporation 6 Total 180

53 Freedom of Information Matters Completed: Outcomes 1 July 2009 to 30 June 2010 Other Central Northern Adelaide Health Service Department for Families and Communities Department of Education and Children’s Services Department of Planning and Local Government Southern Adelaide Health Service Total Percentage Declined 1 1 0.6% Declined/Withdrawn by complainant 1 1 0.6% FOI Advice given 62 10 8 8 7 10 105 60.0% FOI/application for review withdrawn by applicant 8 1 9 5.1% FOI/Application settled during review (s39(5)) 1 2 3 1.7% FOI/Determination confirmed (s39(11)) 4 1 1 6 3.4% FOI/Determination reversed (s39(11)) 2 3 5 2.9% FOI/Determination revised by agency (s19(2a)) 2 2 1.1% FOI/Determination varied (s39(11)) 2 4 2 8 4.6% FOI Review 20 3 4 5 1 33 18.8% Resolved with agency cooperation 1 1 0.6% Transfer OOJ 1 1 0.6% Total 105 14 17 18 11 10 175 100% 60.0% 8.0% 9.7% 10.3% 6.3% 5.7%

Note: See Appendix 3 for definitions of FOI outcomes

54 About OmbudsmanSA

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Our Mission Our Values · Responsiveness in our service Our mission is to help make In performing our work we are delivery South Australia a state where all committed to: We are committed to providing communities and individuals are prompt service and facilitating treated fairly by: · Maintaining independence and speedy resolutions where impartiality appropriate · Promoting sound public We are committed to acting administration and accountability in a manner that maintains the Our Jurisdiction within State and local government; independence and objectivity of Certain agencies are outside and the Ombudsman. Ombudsman SA’s jurisdiction. We · Keeping the Parliament, the do not have the power to investigate Government and the community · Facilitating access to our services actions and decisions of: informed of matters of public We are committed to ensuring importance. people can, and know how to, · the South Australian Police access our services through a · employers - which affect their Our Functions range of technologies and employees The Ombudsman contributes to avenues. · private persons, businesses or sound public administration by South companies Australian State and local government · Respecting the views of all parties · Commonwealth or interstate agencies through: We are committed to ensuring government agencies that all parties’ points of view are · government Ministers and Cabinet · Investigating, conciliating and heard and considered. resolving complaints in accordance · courts and judges with the Ombudsman Act; · Fairness and integrity · legal advisers to the Crown · Undertaking investigations referred We are committed to acting by Parliament, and conducting in accordance with our powers, The Ombudsman has a discretion administrative audits and basing our actions on relevant whether to commence or continue investigations on the Ombudsman’s considerations and at all times an investigation. Key issues of own initiative; acting in good faith. the complaint will be assessed to · Making recommendations for determine whether: change in procedures and legislation; · Accountability in our dealings · Reviewing decisions about release We are committed to · special circumstances exist for of information under the Freedom of keeping people informed matters over 12 months old Information Act 1991; and about their rights and any · the complainant has a legal remedy · Providing advice and training. decisions affecting them, and to or right of review or appeal and using our resources efficiently, whether it is reasonable to expect effectively and responsibly. the complainant to resort to that The Ombudsman is an independent We will strive to refine means remedy statutory officer within the Attorney to measure and report on our General’s Department, and reports · a complaint appears to be frivolous, performance. directly to Parliament. trivial, vexatious, or not made in good faith;

55 · an investigation does not appear to The Ombudsman should not in any be warranted in the circumstances, report, make adverse comments such as where the agency is still about any person or agency unless investigating the complaint or a they have been provided with an complaint has not yet been made opportunity to respond. to the agency, or where another complaint-handling body may be The Ombudsman may make a more appropriate; recommendation to Parliament that · the complainant does not have a certain legislation be reviewed. sufficient personal interest in the matter. Service principles If the complaint is within the Investigations by Ombudsman’s jurisdiction, the Ombudsman SA Ombudsman will, in normal circumstances Any individual person or organisation who is directly affected by an · provide an accessible and timely administrative action of a government service, with equal regard for department, authority or council under all people with respect for their the Ombudsman’s jurisdiction can background and circumstances make a complaint to the Ombudsman. · provide impartial and relevant advice Investigations may be initiated by and clear information about what we Ombudsman SA in response to a can and cannot do complaint received by telephone, · provide timely, impartial and fair in person, in writing or through investigation of complaints the website from any person (or · ensure confidentiality an appropriate person acting on · keep people informed throughout another’s behalf); a complaint referred the investigation of a complaint; and to the Ombudsman by a member of Parliament or a committee of · provide concise and accurate Parliament; or on the Ombudsman’s information about any decisions or own initiative. recommendations made and provide reasons wherever possible If the Ombudsman decides to investigate a complaint, the Referral to other jurisdictions Ombudsman advises the agency Ombudsman SA also has an and the complainant accordingly. As important referral role. Even though part of this process, the Ombudsman we may be unable to be of direct identifies the issues raised by the assistance to people who approach complainant along with any other the office about matters that are not issues that we consider relevant. within jurisdiction, it is often possible The Ombudsman can choose to to refer them to another appropriate conduct either an informal or a formal source of assistance. Therefore, an investigation (preliminary or full). If outcome of ‘no jurisdiction’ does not the Ombudsman decides not to necessarily mean that the office has investigate, the complainant is advised not been of assistance to the person of this, along with the reasons for the who consulted us. decision. If a complaint is out of Ombudsman Investigations are conducted in SA’s jurisdiction we will attempt to private and the Ombudsman can refer the complainant to another only disclose information or make complaint handling body which may a statement about an investigation, be able to assist. subject to compliance with specified provisions of the Act.

At the conclusion of an investigation, the Ombudsman may recommend a remedy to the agency’s principal officer or recommend that practices and procedures are amended and improved to prevent a recurrence of the problem.

56 APPENDIX 1. Financial Statement

Expenditure 2008/09 2009/10

Annual Report 446 405 Branding Development 23 730 Computer expenses 24 562 75 372 Equipment maintenance 1 395 13 993 Equipment purchases 15 755 Fringe Benefits Tax 3 140 4 492 * Motor vehicles 15 299 18 068 Postage 1 121 3 295 Printing and stationery 8 360 21 558 Publications and subscriptions 2 231 5 534 Recruitment costs 58 457 1 493 Research Grant 10 000 Staff development 5 241 35 337 Sundries 14 265 27 363 Telephone charges 21 459 18 068 Travel/taxi charges 10 621 8 157 Website Development 13 101 Sub-total 166 597 295 721 * Accommodation and energy 110 722 112 745 Consultant/Contract staff 145 879 119 300 Sub-total 256 601 232 045 * Salaries 1 373 424 1 320 366 Sub-total 1 373 424 1 320 366 Income (13 300) (9 761) Sub-total (13 300) (9 761)

* Figures include expenses incurred by the Ombudsman position (funded by Special Acts)

Net expenditure 1 783 322 1 838 371

57 APPENDIX 2. Declined (formerly included · it relates to action by a Minister, or Description of outcomes - in ‘Declined/Terminated/ · it relates to a police matter. Ombudsman jurisdiction Withdrawn’) Ombudsman SA’s new case The matter was terminated at an early Out of time (New category, management system, and revised stage because: formerly included in ‘Declined/ office procedures incorporating Terminated/Withdrawn’) target timeframes for completion · further investigation was After investigation the complaint is of files, commenced operation on unnecessary or unjustifiable found not to be within jurisdiction 15 March 2010. As a part of this · the complainant had no sufficient because the matter arose more than implementation, new reporting personal interest or was not directly 12 months previously. categories have been introduced. affected, or This appendix provides an explanation · the complaint was trivial or vexatious. Preliminary Investigation (Old of the new categories, and their category) relationship to categories included in Full Investigation (Replaced by A Preliminary Investigation previous years’ Annual Reports. Section 25 finding categories) pursuant to section 18(1) of the Ombudsman Act is conducted to A Full Investigation is commenced obtain preliminary information to 1. Outcomes included in this where sufficient background material determine whether the matter should year’s Annual Report has been gathered to indicate a proceed to a full investigation. Often Advice given (Continuing basis for complaint. Section 18(1a) such an investigation can involve a category) requires that the Principal Officer of considerable amount of effort on the agency be advised of such an Information or advice was provided to the part of the investigator, without investigation. Such advice is usually the public, normally without contacting reaching the point where formal (although not necessarily) provided in the agency complained against. advice of a full investigation is writing. necessary. Many complaints are Whilst this category will continue, we resolved during this phase. expect its numbers (and consequently In future, the results of full investigations will be reported against the total number of complaints) will Since 15 March 2010, the outcome the specific administrative error found, reduce in future years. of these investigations may be as section 25 findings. recorded as: From 15 March 2010, a number Not Substantiated (formerly ‘Not of matters which were previously · not substantiated recorded as complaints with an Sustained’) · Ombudsman comment warranted outcome of ‘advice given’, are being A matter is classed as Not recorded as ‘approaches’ which are Substantiated if the complaint has · out of jurisdiction resolved without the lodging of a been investigated and sufficient · out of time formal complaint. Because they are information has been discovered to · referred back to agency resolved speedily, Ombudsman SA conclude that there is no basis to form · resolved with agency cooperation has determined not to classify them an opinion pursuant to section 25(1). as complaints. Ombudsman comment Referred back to agency (New Alternative remedy available warranted (New category, category, formerly included in with another body (New formerly included in ‘Preliminary ‘Advice Given’) category) Investigation’) Ombudsman SA declines to The complainant had an alternative These matters have been the subject investigate because the agency remedy available. Under section of a preliminary investigation. No complained about has not had a 13(3) of the Ombudsman Act, administrative error has been found reasonable opportunity to address the Ombudsman SA must not investigate but an issue worthy of comment has matter. unless it is not reasonable for the been identified. complainant to exercise that remedy. Resolved with agency Out of jurisdiction cooperation (formerly ‘Reasonable Resolution’) Cannot contact person (New After investigation the complaint is category) found not to be within jurisdiction A matter is classed as having been The complainant is unable to be because: resolved with agency cooperation if, contacted. before an opinion is formed pursuant to section 25(1) of the Ombudsman · the body complained about is found Act, some action is taken by the Conciliated (New category) not to be an agency for the purposes agency to remedy (in the opinion The complaint was conciliated under of the Ombudsman Act of the Ombudsman) the cause of section 17A of the Ombudsman Act · the matter arose from an the complaint, or provision is made employment relationship - section whereby the complaint can be 17(1) properly addressed by the agency. · it relates to an action by a judicial body

58 Section 25 Findings (New Partly Resolved in Favour categories, replacing ‘Full of Complainant (Replaced Investigation’) category) These categories detail the outcome A matter is Partly Resolved in of a full investigation where a specific Favour of Complainant if there is administrative error is found. They some benefit to the complainant or comprise: some action by the agency such that the substance of the complaint is · improper purpose or irrelevant partly addressed and resolved. This consideration - section 25(1)(d) description would often apply where · mistake of law or fact - section 25(1) there would not have been sufficient (f) information to sustain the complaint, but notwithstanding this the agency · no reasons given - section 25(1)(e) acts to partly remove the difficulty · unlawful - section 25(1)(a) which was the basis of the complaint. · unreasonable law or practice - section 25(1)(c) Reasonable Resolution · unreasonable, unjust, oppressive or (Replaced category) improperly discriminatory - section A matter is classed as having a 25(1)(b) Reasonable Resolution if, before · wrong - section 25(1)(g) an opinion is formed pursuant to section 25(1) of the Ombudsman Transferred to WorkCover Act, some action is taken by the Ombudsman (Old category) agency to remedy (in the opinion of the Ombudsman) the cause of These matters are now recorded the complaint, or provision is made in the category ‘Alternative remedy whereby the complaint can be available with another body.’ properly addressed by the agency.

Withdrawn (formerly included in ‘Declined/Terminated/ Withdrawn’) The matter was withdrawn by the complainant.

2. Outcomes included in previous years’ Annual Reports, but now replaced Not Sustained - Explanation Given (Replaced category) A matter is classed as Not Sustained - Explanation Given if the complaint has been investigated and sufficient information has been discovered to conclude that there is no basis to form an opinion pursuant to section 25(1), but as a consequence of the information obtained the complainant is able to receive an explanation of the reasons for the agency’s actions, and that explanation is in advance of the explanation or information which the complainant previously had from the agency

59 APPENDIX 3. FOI Review - Determination Description of outcomes - varied- section 39(11) FOI jurisdiction At the conclusion of external FOI Advice given (Old category) review, the Ombudsman was not wholly satisfied with the agency’s Formal or informal freedom of determination, and varied it. information advice was provided to the public and/or agency. Since 15 FOI Review - Application March 2010, this category has been dismissed - lack of cooperation treated as a type of approach, with - section 39(8) FOI issues identified as their subject. The application is dismissed because FOI Investigation (Old category) the applicant did not meet their obligation to cooperate in the conduct An investigation under the of the review. Ombudsman Act was conducted into a freedom of information FOI Review - Application for related administrative action. These review withdrawn by applicant investigations are now categorised (formerly FOI Review - as complaints under the Ombudsman withdrawn) Act, with FOI issues identified as their subject. During or at the conclusion of external review, the applicant decided to FOI Review (Old category) withdraw the application. An external review was conducted. Outside jurisdiction This category has been replaced by the FOI review categories listed The body was not an ‘agency’ under below. Each external review has one the FOI Act or the application for main outcome recorded for reporting external review was premature. purposes, as follows:

FOI Review - Application settled during review - section 39(5) (formerly FOI Review - matter settled during review) The external review settled following negotiations with the parties

FOI Review - Determination confirmed - section 39(11) At the conclusion of external review, the Ombudsman was satisfied with the agency’s determination.

FOI Review - Determination reversed- section 39(11) At the conclusion of external review, the Ombudsman was not satisfied with the agency’s determination, and reversed it.

FOI Review - Determination revised by agency - section 19(2a) (formerly FOI Review - Agency revised determination) During external review, the agency revised its determination in part or in whole.

60 APPENDIX 4. October 2009 May 2009 Speeches and staff Local Government Association of SA - Blind Welfare Association - development AGM - Keynote speaker The role of the Ombudsman Ombudsman Staff member Speeches and training provided by Ombudsman SA staff for November 2009 May 2010 agencies and councils Local Government Chief Officers State Records - Accredited FOI Group - National conference - Training July 2009 Building Better Governance 2 staff Natural Resource Investigators Group Ombudsman Network Conference May 2010 Ombudsman November 2009 Local Government Association of SA - Prospect Council - Elected Members Governance Seminar July 2009 Workshop Ombudsman Metropolitan - FOI Workshop for Ombudsman councils June 2010 3 staff November 2009 Environment Protection Authority - Australian Institute of Administrative Roundtable July 2009 Law - Lunchtime seminar Ombudsman Crystal Brook - FOI Workshop for Ombudsman councils June 2010 3 staff November 2009 Wallman’s Lawyers - Election Survival South East - Naracoorte - FOI guide August 2009 Workshop Ombudsman Complaints handling in Workshop - for Councils Local Government 3 staff June 2010 Deputy Ombudsman State Records - Accredited FOI November 2009 Training August 2009 State Records - Accredited FOI 2 staff Metropolitan councils CEO’s meeting Training Ombudsman 2 staff Staff training and conferences attended September 2009 February 2010 Local Government Association of SA - July 2009 State Records - Accredited FOI Leena Sudano CEO’s meeting Training Ombudsman The Health and Community Services 2 staff Complaints Commissioner September 2009 All staff March 2010 Adelaide University Law School - Norman Waterhouse Lawyers - The Ombudsman in an administrative August 2009 Staff seminar law context Wayne Lines Ombudsman and Deputy Ombudsman Deputy Ombudsman The WorkCover Ombudsman All staff March 2010 September 2009 Local Government Association of SA - August 2009 Health & Community Services FOI Workshop Complaints Commissioner - Training Aboriginal Cultural Awareness Deputy Ombudsman in administrative law principles training Deputy Ombudsman Ombudsman March 2010 State Records - Accredited FOI August 2009 September 2009 Training Law Council Alternative Dispute Commonwealth Ombudsman trainer 2 staff Resolution Symposium - The Multi- Writing workshop Door Court’ 3 staff April 2010 Ombudsman Anti-Corruption Branch - Training Day August 2009 Ombudsman October 2009 AGD Risk Management training - Karoonda - FOI Workshop 5 staff April 2010 for councils State Records - Accredited FOI 3 staff September 2009 Training Sandy Canale 2 staff October 2009 The Energy Industry Ombudsman Eyre Peninsula - Wudinna - FOI All staff April 2009 Workshop for councils Adelaide University Law School - 3 staff The role of the Ombudsman Deputy Ombudsman

61 September 2009 2009 National Conference - Good, Better, Best Complaint Handling Canberra Deputy Ombudsman

October 2009 (2 days) Glenn Sullivan Victorian Ombudsman’s Office - Investigation Training All staff

November 2009 Michael Butler, Manager Disruptive Management Team, Housing SA All staff

November 2009 David Brown and Marja Elizabeth, Department for Correctional Services Shaping Corrections All staff

November 2009 Deputy Ombudsmen’s meeting Canberra Deputy Ombudsman

December 2009 Stephen Brennan The Employee Ombudsman All staff

January 2010 Roger Freeman, DPLG Development Act 1993 All staff

March 2010 (2 days) Asia-Pacific Ombudsmen Regional Conference Canberra Ombudsman

April 2010 Paul Hellander Working with interpreters All staff

May 2010 Dr Steven Churches A tour of the Ombudsman Act All staff

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63 Contact us If you’re not sure whether Ombudsman SA can help you, we are happy to discuss your matter further. If it is not under our jurisdiction, we are happy to point you to another agency who may be able to assist.

Visit our website for further information about our services or register your complaint directly online.

Level 5 East Wing 50 Grenfell Street Adelaide SA 5000 Telephone 08 8226 8699 Facsimile 08 8226 8602 Toll free 1800 182 150 www.ombudsman.sa.gov.au

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