International Law

"Interesting' Ombudsman report-a serious understatement.

Words that stay in the mind after reading the report about OBOS handling of the matters are adversarial, defensive, combative, obfuscatory, technical, legalistic, uncooperative, and according to the Ombudsman's interpretation of the Act, plain wrong on a number of counts, including regarding the limitation on the need to search for computer records mentioned here the other day. The Ombudsman reports on a couple of firsts in 20 years experience reviewing FOI complaints - senior officers writing letters for more junior officers to sign, and a senior officer "independently" reviewing the exercise of his own statutory powers - twice.

The reported cost of employing the Crown Solicitor's Office, $15000 for representation of OBOS for a technical but in the end pyrrhic victory in the Administrative Decisions Tribunal, is just the tip of what this whole exercise must have cost in terms of public service time and energy, and internal meetings and messages back and forth as letters on technical points were exchanged. for two years. Plus the cost of loads of legal advice from the Crown Solicitor (66 pages the Ombudsman couldn't access because of claims of privilege) on the way through, not to mention the Ombudsman's lengthy investigation and report.

Make what you will of the fine detail. The Ombudsman's findings were:

"19.1 I find that the OBOS?s failure to have a person with sufficient knowledge, skills and experience, in relation to the FOI Act and the relevant case law and government
policy, to make an appropriate determination in relation to the December 2005 or January 2007 applications, was unreasonable. (s. 26(1)(b) of the Ombudsman Act)

19.2 I find that the handling of the December 2005 application was unreasonable, based on irrelevant considerations and partly on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.3 I find that the handling of the January 2007 application (including the handling of the ?fresh? FOI application) was unreasonable, based on a mistake of law and based on irrelevant considerations. In particular, I find that the OBOS?s actions in not treating the Lane letter as a determination were based on a mistake of law. (s. 26(1)(b), (d) and (e) of the Ombudsman Act)

19.4 I find that the denial of access to the documents sought in the January 2007 application constituted conduct of the OBOS for which reasons should have been
given but were not given. (s. 26(1)(f) of the Ombudsman Act)

19.5 I find that the handling of Mr Parsonage?s complaint of 15 January 2007 about the way his December 2005 application had been handled was unreasonable and
otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

19.6 I find that the handling of Mr Parsonage?s complaint, made at the end of his request for an internal review in a letter dated 12 April 2007, about having to pay another $40 internal review fee, was unreasonable and otherwise wrong. (s. 26(1)(b) and (g) of the Ombudsman Act)

I note that in its comments on a draft copy of this report, the OBOS stated that it does not agree with the generality of these findings with respect to the application of the law. However, during consultation on 2 September 2009, the Minister and the President of the Board of Studies accepted our findings. I welcome this positive and constructive response."

Full post as published by Open and Shut on September 24, 2009 (boomark / email).