Kennedy and Building Services Authority
(2001 S0119, 7 December 2001)
This was a ‘reverse FOI’ application by Mr Kennedy, an accredited building certifier, who objected to a decision by the Building Services Authority (BSA) to disclose documents relating to a complaint to the BSA about Mr Kennedy's conduct in incorrectly approving plans for extensions to the residence of the access applicant. The access applicant had commenced proceedings against Mr Kennedy in the Magistrates Court to recover expenses allegedly incurred as a result of Mr Kennedy's mistake. Mr Kennedy contended that the documents in issue were exempt under s.42(1)(d) of the FOI Act because their disclosure could reasonably be expected to prejudice the impartial adjudication of the case in the Magistrates Court.
The Deputy Information Commissioner observed that disclosure of the documents in issue under the FOI Act could not reasonably be expected to prejudice the impartial adjudication of the case any more than would their disclosure under the curial procedures that were clearly available to the access applicant to compel the production of the documents under the Uniform Civil Procedure Rules. If the documents in issue were disclosed under the FOI Act, the access applicant might seek to make use of them in the Magistrates Court hearing. However, he held that there was no reasonable basis for expecting that the presiding magistrate would not rule impartially on any objection to the documents being admitted into evidence. Nor, assuming the documents were admitted into evidence, was there any reasonable basis for expecting that the presiding magistrate would not impartially assess their value as probative evidence, in light of the totality of the evidence put before the magistrate, including any evidence put on behalf of Mr Kennedy. Accordingly, the Deputy Information Commissioner found that the documents in issue did not qualify for exemption under s.42(1)(d) of the FOI Act.