Kavvadias, Dimitrious v Commonwealth Ombudsman [1984] FCA 196

Kavvadias, Dimitrious v Commonwealth Ombudsman [1984] FCA 196

The decision of the Ombudsman refusing access to the draft report under s.36 of the FOI Act was valid insofar as disclosure would reveal deliberative material and be contrary to the public interest, particularly as the statutory process required provisional criticisms to be tested through submissions before a final report. However, any purely factual material in the draft report, that can be separated without being misleading, must be disclosed to the applicant under s.36(5) and s.22 of the Act.

Parties
Applicant: Dimitrious Kavvadias; Respondent: Commonwealth Ombudsman
Jurisdiction
Australia
Judgment Date
09 July 1984
Procedural Posture
Application for Judicial Review / Reasoned Judgment; No Final Orders Yet Made; Adjourned for Short Minutes of Order
Outcome
Application allowed in part; Ombudsman's decision set aside to the extent that purely factual material must be disclosed.
Legal Topics
Exemptions From Disclosure, Deliberative Processes, Public Interest, Draft Reports, Ombudsman Procedures
Freedom of Information Administrative Law Exemptions From Disclosure Deliberative Processes Public Interest Draft Reports Ombudsman Procedures

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Parties

Dimitrious Kavvadias

Applicant

Commonwealth Ombudsman

Respondent

Procedural Posture

Application for Judicial Review / Reasoned Judgment; No Final Orders Yet Made; Adjourned for Short Minutes of Order

Legal Issues

  1. 1 Whether the draft report is exempt from disclosure under s.36 of the Freedom of Information Act 1982
  2. 2 Whether any part of the draft report contains purely factual material to which access must be given under s.36(5)
  3. 3 Whether the Ombudsman took into account irrelevant considerations or failed to take relevant ones in refusing access

Ratio Decidendi

The decision of the Ombudsman refusing access to the draft report under s.36 of the FOI Act was valid insofar as disclosure would reveal deliberative material and be contrary to the public interest, particularly as the statutory process required provisional criticisms to be tested through submissions before a final report. However, any purely factual material in the draft report, that can be separated without being misleading, must be disclosed to the applicant under s.36(5) and s.22 of the Act.

Court Disposition

Application allowed in part; Ombudsman's decision set aside to the extent that purely factual material must be disclosed.

Orders

  • Order that the Ombudsman's decision of 3 May 1983 refusing disclosure of the draft report is set aside.
  • Ombudsman to give applicant access to such part of the draft report as constitutes purely factual material within s.36(5) FOI Act, subject to s.22.