McGuirk v Independent Commission Against Corruption

[2008] NSWCA 302

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Freedom of information
3. › Exempt bodies and offices
4. › Construction of s 9 Freedom of Information Act 1989 (NSW)
5. › Distinction between exemption of body and exemption of document
6. › Whether s 9 exempts body from operation of Act or only renders documents exempt
7. › Freedom of Information Act 1989 (NSW), ss 6(1)(b), 9, Sch 2
1. Appeal
2. › Leave to appeal
3. › Discretionary considerations
4. › Whether substantial argument available on appeal
5. › Whether importance of question sufficient to warrant further tier of review
6. › Aberrant decision of Appeal Panel
1. Practice and Procedure
2. › Costs
3. › Appeal from discretionary costs order
4. › FOI proceedings
5. › Whether costs order against individual seeking access to information under FOI Act was outside proper exercise of discretion
6. › Suitors Fund Act 1951 (NSW)

Quick Take

Section 9 of the Freedom of Information Act 1989 (NSW) operates to exempt a body or office from the operation of the Act in relation to specified functions. This exemption is distinct from the concept of an 'exempt document' under s 6(1)(b), which applies where a document of the relevant kind is in the possession of an agency other than one exempted by s 9. The Appeal Panel's approach of treating the exemption as operating through the definition of exempt document rather than through s 9 directly was characterised as aberrant.