The agency contended that disclosure of the footage under the Freedom of Information Act would be contrary to the Passenger Transport Regulations 2024 which prohibits the 'use' of recorded material for an unauthorised purpose.

Held, affirming the Ombudsman's decision that the CCTV footage is not an exempt document:

• Provision of a document by an officer under the Freedom of Information regime does not constitute 'use'. Use requires purpose beyond compliance with the legislative regime.

Administrative Review - Freedom of Information Act 1991 - Agency aggrieved by determination to provide CCTV footage - Where document found to not be an exempt document

Freedom of Information Act 1991 ss 4, 19, 40, 51, 52

Passenger Transport Regulations 2024 regs 79, 86

South Australia Civil and Administrative Tribunal Act 2013 s 37

Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58

Affirm decision of the Ombudsman that the CCTV footage is not an exempt document

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. The respondent, Ms Reynolds, experiences incomplete paraplegia and does not drive a car. If she needs to go somewhere, she is transported in an Access Cab, i.e. a vehicle that can transport a person who remains seated in their wheelchair while travelling.
2. In October 2023, Ms Reynolds was travelling in an Access Cab. Her seatbelt was not properly fastened. The Access Cab was involved in a collision with another vehicle. Ms Reynolds fell out of her chair inside the Access Cab and sustained some injuries.
3. The incident was investigated by the Passenger Transport Standards Committee (PTSC), which is part of the applicant agency.[1] There was CCTV footage from within the Access Cab that was viewed by the PTSC. The PTSC determined that the driver of the Access Cab was not liable to disciplinary action.
4. Ms Reynolds continues to be perplexed about how the PTSC could have reached this conclusion. In June 2024, she made an FOI application to the applicant, DIT. She requested access to documents that contained communications between the PTSC and the driver of the Access Cab, to better understand why her complaint about the driver's conduct did not result in any action being taken.
5. The agency did not determine the freedom of information application within the required 30-day time period. In accordance with s 19(2) of the Freedom of Information Act 1991 ('FOI Act'), on 11 July 2024, Ms Reynold's request was taken to have been refused.
6. After an unsuccessful internal review to the agency, Ms Reynolds applied for an external review by the Ombudsman. The Ombudsman proceeded on the basis of the agency's approach that there was a single document, but noted that it was in fact a bundle of documents, one of which was some CCTV footage of the incident from inside the Access Cab.
7. The agency's position was that the bundle of documents is exempt (and therefore not required to be provided to the applicant) under clauses 11 and 12 of Schedule 1 of the FOI Act. Clause 11 concerns documents that are held by judicial and quasi-judicial bodies. Clause 12 concerns documents that are the subject of legislative secrecy provisions.
8. A provisional determination dated 13 December 2024 was issued by the Ombudsman to the parties, no response was received. However, on 10 January 2025, the agency provided submissions which addressed an exemption clause not previously considered. This was taken into account in the final determination.
9. The final determination by the Ombudsman was provided on 28 February 2025. The Ombudsman was satisfied that the PTSC is a "tribunal" within the meaning of s 4 of the FOI Act. The Ombudsman found that the first six pages of the bundle attracted the operation of sub-clause 11(c) of Schedule 1 - that they were prepared by or on behalf of a tribunal (the PTSC) in relation to proceedings that are being heard, or had been heard, before the tribunal. The Ombudsman found that the remaining documents in the bundle, with the exception of the CCTV footage, attracted the operation of sub-clause 11(b) of Schedule 1 - that they were prepared for the purposes of proceedings before a tribunal that are being heard or have been heard. In other words, except for the CCTV footage, the Ombudsman upheld the agency's contentions that the bundle of documents were exempt documents and that the agency was not required to give access to them to Ms Reynolds.
10. The Ombudsman varied the agency's decision with respect to the CCTV footage. The issue in relation to the CCTV footage was whether it is a document that is subject to a secrecy provision in other legislation which would make it exempt under clause 12 of Schedule 1, and therefore not required to be provided.
11. The agency said that the CCTV was not permitted to be disclosed because of the terms of reg 86 of the Passenger Transport Regulations 2024 ("the Regulations").
12. The Ombudsman determined that the particular wording of reg 86 of the Regulations did not capture release of the CCTV footage by the agency to Ms Reynolds. The Ombudsman therefore found the CCTV footage not to be exempt.
13. The agency seeks a review of that decision.

1. In these proceedings, the agency seeks a review by the Tribunal of the Ombudsman's determination with respect to the CCTV footage under s 40(1) of the FOI Act.
2. The only document in dispute is the CCTV footage of the incident.
3. An agency may only seek a review as to a question of law.[2] The grounds for review proposed concern questions of law regarding the proper construction of clauses 11 and 12 of Schedule 1 of the FOI Act and their interaction with the Regulations.

1. Ms Reynolds is not legally represented. Even though it is the agency's obligation under s 40(8) of the FOI Act to pay the reasonable costs of the respondent when it seeks a review, irrespective of the outcome, Ms Reynolds has not sought to be represented or make a submission to this hearing. I make no criticism of her for this.
2. The agency prepared an outline of argument and Ms Reynolds was provided with a copy. Ms Reynolds, by email, provided an impact statement to the Tribunal. The agency chose not to make any submissions upon receiving the statement. The parties are content for me to now determine the review without an oral hearing.

1. The questions posed by the agency are:
   1. Whether, on a proper construction of reg 86 of the Passenger Transport Regulations 2024 ("the Regulations") the prohibition on "use" of "recorded material" in that regulation, does not include a prohibition on "disclosure" or "publication" of such "recorded material".

The agency contends that the answer to this is "no".

1. Whether, on a proper construction of reg 86, reg 79 and the FOI Act:
   1. The disclosure of "recorded material" as defined in reg 79, in circumstances that do not fall within the definition of "authorised purpose" under reg 79, would constitute "an offence against an Act" for the purpose of clause 12(1) of the FOI Act

The agency contends that the answer to this is "yes"; and

1. The disclosure of "recorded material" as defined in reg 79, under the FOI Act, could fall within the definition of "authorised purpose" under reg 79, without any express authorisation by the Minister under paragraph (d) of that definition.

The agency contends that the answer to this is "no".

1. I accept that these are questions of law and enliven the agency's entitlement for review.

1. The Ombudsman's determination dated 28 February 2025, found that if the agency were to give Ms Reynolds the CCTV footage pursuant to the FOI Act, it would not be an offence. This is because the disclosure by the agency to Ms Reynolds would not be a "use" of the recorded material.
2. The Ombudsman found that if the agency were to provide the CCTV footage to Ms Reynolds under the FOI Act, it would merely be a "disclosure", and that "use" does not encompass "disclosure".
3. At paragraphs [44] - [46], the Ombudsman's reasoning was as follows:

I draw a distinction between "use" as opposed to "disclose" or" publish". In my view, the agency is not "using" the CCTV footage by disclosing it to the applicant, rather the applicant is prohibited from using the CCTV footage once access is given unless in conjunction with one of the purposes listed above. > > The words "use" and "publication" both appear several times in the PT Act and Regulations. I consider that if Parliament intended to limit the disclosure/publication of CCTV footage it would have used the word "disclose" or "publish". > > In my view, there was no intention of Parliament to control the handling of the information before access is given. The prohibition on the use of the information only arises after access is obtained. Prohibiting disclosure would mean prohibiting accessibility to others outside of the agency and preventing the release of the handling of the information from the agency's effective control. That is not the case here. > > (Footnotes omitted)

1. The agency submitted that the Ombudsman erred and that the word "use" when understood in its context in the Passenger Transport Act 1994 and Regulations. It contended that reg 86 when given its proper construction, includes disclosure under the FOI Act.
2. In support of this contention, the agency submitted that the primary purpose for reg 79 is to protect the privacy of taxi drivers and passengers from the inadvertent or deliberate dissemination of CCTV footage recorded in a taxi.[3] It contended that it would undermine the effect of reg 79 if the agency were understood not to be covered by the provision.

1. Schedule 1 of the FOI Act sets out the various exemptions that may be relied upon by an agency to find that a document is not required to be provided. Clause 12 of schedule 1 says:

A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act.

2. The law that the agency says prohibits release of the CCTV footage is in reg 86 of the Regulations. It says that:

"A person must not use recorded material for a purpose other than an authorised purpose."

3. It is not in dispute that the CCTV footage is "recorded material".
4. Regulation 79 explains what an "authorised purpose" is. It is

(a) a purpose connected with the reporting or investigation of an alleged offence by a police officer or a prescribed officer; or

(b) a purpose connected with the prosecution of, or the issue of an expiation notice in respect of, an alleged offence; or

(c) a purpose connected with the exercise of disciplinary powers exercised by the Passenger Transport Standards Committee under Part 4 Division 5 of the Act; or

(d) a purpose authorised by the Minister for the purposes of these regulations;

1. For the purposes of this decision, the parties agree that there is no authorised purpose at play.

1. The first question posed by the agency is whether the provision of the document by the agency to Ms Reynolds is a "publication" of the document or alternatively a "use" of the document. No question of publication arises, in my view. Publication connotes distributing information publicly by some means.[4] What the agency did amounted to (or might amount to)[5] an act of disclosure but it was not an act of publication. A neutral term for what the agency did was to "provide" the document to Ms Reynolds. Did such provision of the document amount to "use"?
2. In other words, did the act of providing a document for the purpose of administering the FOI Act constitute a "use" of the document for the purposes of reg 86 of the Regulations?
3. Regulation 86 creates an offence. Provision of access to a document in breach of reg 86 would not expose an FOI officer to criminal liability because of the immunity from such liability contained in ss 51 and 52 of the FOI Act. However, that does not answer the anterior question as to whether "use" encompasses provision of a document under the FOI Act in the performance of functions.
4. For several reasons, I consider that "use" does not capture the act of providing a document pursuant to the FOI Act.
5. Firstly, "use" connotes purpose.[6] The FOI officer does not have any purpose in making the disclosure beyond compliance with a legislative regime. If the FOI officer were to be understood to be using the document when he or she grants access to the document to the applicant, then that officer is equally using the document if they were to deny access. The FOI officer is merely acting on the outcome of the assessment as to whether the document is exempt or not.
6. Secondly, reg 86 is penal. It is to be construed so as only to capture conduct that is unambiguously described by the prohibition.[7] Construed in such a manner, the term "use recorded material" connotes dealing with the recorded material towards some outcome. Such a construction requires that the use, and its purpose, be connected with the thing being used; the recorded material. The FOI officer seeks no outcome by his or her provision of the CCTV footage to Ms Reynolds. The fact that in the FOI Act there is an immunity against prosecution for the FOI officer for good faith acts does not diminish the application of that principle of statutory construction.
7. Thirdly, the mischief underpinning the penal provision is not undermined by the adoption of a construction that does not prohibit the FOI officer from providing access to the document. The provision of the recorded material to Ms Reynolds is not a target of the prohibition. Any subsequent use of the recorded material by Ms Reynolds may well be caught by the provision. But that is not to the point.
8. That is not to say that all disclosure is carved out from "use". A further disclosure by Ms Reynolds may, or may not, be a "use". It is not necessary to canvass all of the circumstances in which a disclosure may be a "use". All that is necessary is to determine whether disclosure by an FOI officer is a "use". I am satisfied that it is not.
9. Accordingly, I would answer the questions as follows:
   1. Whether, on a proper construction of reg 86 of the Passenger Transport Regulations 2024 ("the Regulations") the prohibition on "use" of "recorded material" in that regulation, does not include a prohibition on "disclosure" or "publication" of such "recorded material".

Answer: It depends on the circumstances of the disclosure. The prohibition does not include a disclosure by an FOI Officer to an FOI applicant.

1. Whether, on a proper construction of reg 86, reg 79 and the FOI Act,
   1. The disclosure of "recorded material" as defined in reg 79, in circumstances that do not fall within the definition of "authorised purpose" under reg 79, would constitute "an offence against an Act" for the purpose of clause 12(1) of the FOI Act,

Answer: No, if the disclosure does not entail a "use" of the recorded material.

1. The disclosure of "recorded material" as defined in reg 79, under the FOI Act, could fall within the definition of "authorised purpose" under reg 79, without any express authorisation by the Minister under paragraph (d) of that definition.

1. I uphold the Ombudsman's determination that the CCTV footage is not exempt, for the reasons given above.

1. The Tribunal affirms the decision under review.

[1] Section 4(1) and (2) of the Freedom of Information Act 1991 are relevant to this question.

[3] Applicant's outline of argument dated 1 August 2025 at [36].

[4] Macquarie Dictionary Online: Publish: 1. to issue, or cause to be issued, in print or digital formats, for sale or distribution to the public (a book, ebook, blog, periodical, images, sheet music, sound recordings, or the like).

[5] If disclose means impart new information, the act may not be an act of disclosure if the recipient already has the material. That issue does not need addressing in this decision.

1. [6] The word "use" means "to employ for some purpose": Macquarie Online Dictionary.

[7] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 at [45].