Rouvinetis -v- Director General, Department of Housing [2001] NSWADT 155

CITATION: Rouvinetis -v- Director General, Department of Housing [2001] NSWADT 155 DIVISION: General Division APPLICANT PARTIES: Evangelos Rouvinetis RESPONDENT Director General, Department of Housing FILE NUMBER: 013010 HEARING DATES: 02/07/2001 SUBMISSIONS CLOSED: 07/02/2001 DATE OF DECISION: 10/03/2001

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - confidential material - access to documents - internal working documents - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - internal working documents - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998 Rouvenitis v Department of Housing Commission of NSW [1998] NSWSC 427 (CA) CASES CITED: Rouvenitis v Department of Housing [2000] NSWSC 131 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 APPLICANT REPRESENTATION: In person RESPONDENT M Fordham, barrister ORDERS: That the decision under review be affirmed except as set out in paragraph 32 of these reasons.

1 By request dated 16 August 2000, with fee paid 16 September 2000, the applicant sought access pursuant to the Freedom of Information Act 1989 (FOI Act) to tenancy records held about him by the respondent agency. The applicant was refused access to part or the whole of 154 documents contained on the agency's file relating to him, the file comprising 586 folios numbered D1 to D586 . The agency's final decision was made on 15 November 2000 following internal review, with reasons recorded in a letter dated 18 November 2000. The applicant has applied to the Tribunal for review of that decision. 2 In the meantime the agency has decided to release the whole of a further 49 documents covered by the decision of 15 November 2000: see letter 27 June 2001 to the applicant. It has also released material not dealt with by that decision, being all folios belonging to the period June 2000 to 28 June 2001, marked D587 to D632 inclusive to the applicant. These were handed up to the Tribunal, and marked exhibit 1. 105 documents remain in issue. 3 For present purposes I regard the decision under review as being the decision recorded in the letter of 18 November 2000 read in conjunction with the further letter to the applicant of 27 June 2001. 4 The applicant is a public housing tenant of the agency. He has been a public housing tenant since 1995. He presently resides in the Department of Housing complex at 34 Boronia Street, Kensington. He has been the subject of complaints by other tenants in the complex alleging acts of harassment and nuisance. He was the subject of similar complaints at a previous location in Waterloo. The file to which he has sought access covers the time since he became a tenant. 5 The agency has brought proceedings against him over the years, and he in turn has brought proceedings against the agency alleging 'malicious persecution' among other things. In 1996, the Residential Tenancies Tribunal granted the agency's application for an order terminating the applicant's tenancy at premises at Waterloo after hearing evidence of various incidents of nuisance and provocative conduct: Matter No 96/10673, 24 May 1996. Other information in the documents before the Tribunal indicate that that decision was set aside by the Supreme Court on 17 July 1996 on error of law grounds, and that the proceedings were remitted to the Tribunal. What then occurred is not clear. (Mr Fordham for the agency said that there had been five Residential Tribunal proceedings brought against the applicant.) The applicant has initiated Supreme Court proceedings on at least two occasions against the agency. Each has been dismissed at an early stage as being without legal foundation: see Rouvenitis v Department of Housing Commission of NSW [1998] NSWSC 427 (CA) (8 September 1998): Rouvenitis v Department of Housing [2000] NSWSC 131 (9 March 2000). 6 Of the 105 documents that are in issue, 70 are the subject of full exemption claims and 35 as to part of their contents. There are four exemptions variously relied upon: the personal affairs exemption (cl 6, Schedule 1), the internal working documents exemption (cl 9), the legal professional privilege exemption (cl 10) and the confidential material exemption (cl 13). 7 The legal professional privilege and internal working documents exemptions are invoked where advice has been obtained by the agency to assist it in dealing with claims, disputes and litigation relating to the applicant. The personal affairs and confidentiality exemptions have usually been invoked by the agency where it seeks to protect the identity of complainants in relation to the conduct of the applicant or content of the information provided by them. On their face these are all circumstances to which the exemptions mentioned could be relevant. Applicable Law 8 The right of access is conferred by s 16: '16. Right of access to agencies' documents (1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. (2) (Repealed).' 9 An agency may refuse access on the grounds set out in s 25, of which sub-section (1) is relevant to these proceedings: ' 25. Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document.' 10 An exempt document is defined at s 6 as relevant to this case as: 'a document referred to in any one or more of the provisions of Schedule 1.'