1. The applicant, Mr Richard King, is the General Manager for the Anangu Pitjantjatjara Yankunytjatjara ("APY") lands. He was first appointed to that position in 2015 pursuant to s 13D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 ("the APY Act").
2. The appointment was made by the Executive Board of APY. Pursuant to s 13D(4) and (5), the conditions of appointment (including conditions as to remuneration) required the approval of the Minister for Aboriginal Affairs.
3. In September 2016 Dr Duncan McFetridge was a member of the South Australian Parliament. He was the shadow Minister for Aboriginal Affairs and he was a member of the South Australian Parliament's Aboriginal Lands Parliamentary Standing Committee ("the Committee").
4. Dr McFetridge made a request to the Department of State Development under the Freedom of Information Act 1991 ("the FOI Act") for access to Mr King's contract as APY General Manager.[1]
5. The Department identified one document within the scope of the request, described as:

"a copy of the employment agreement letter to the General Manager, APY"

1. The Department determined that the document was exempt in full pursuant to cl 6(1) of the Second Schedule to the FOI Act and that it would not be disclosed.
2. The determination indicated that the document was direct correspondence between APY and the General Manager and that it was provided to the Department on the understanding that it would remain confidential. The determination stated that disclosure of the document would unreasonably disclose information concerning Mr King's personal affairs. It further stated that the document was exempt pursuant to cl 13(1) and cl 16(1)(a)(iv) of the Schedule.
3. Dr McFetridge sought an internal review of this determination. On internal review, the Department decided to partially release the document. Dr McFetridge was provided with a redacted copy of the document. Substantial redactions had been made on the stated basis that disclosure of the redacted material would involve the unreasonable disclosure of information concerning Mr King's personal affairs. Reliance was placed on cl 6(1).
4. Dr McFetridge sought external review by the Ombudsman. The Ombudsman received information and submissions from the Department, Dr McFetridge, and Mr King. The Ombudsman found that the document concerned Mr King's personal affairs. However, he found that it would not be unreasonable to disclose the information in the document and hence the document was not exempt under cl 6(1). The Ombudsman determined that the agency's determination should be reversed. The document was to be disclosed in full.
5. Mr King then issued an application for review by this Tribunal. By his Amended Initiating Application, the applicant sought to argue that the document was fully exempt under both cl 6(1) and cl 13(1)(a) of the Schedule.
6. There was a very lengthy delay in listing the matter for hearing as the parties jointly submitted that it should not be listed until a relevant issue was determined in proceedings then current in the Supreme Court. It was suggested that the Supreme Court would determine whether APY was an "agency" as defined in the FOI Act, which was an issue central to the claimed exemption under cl 13.
7. Eventually, the applicant decided to abandon the claimed exemption under cl 13 and thus the hearing in this Tribunal proceeded. The Supreme Court judgment was subsequently delivered in September 2019. It does have some relevance to the remaining issues before this Tribunal and I shall refer to this later.

1. This Tribunal is required to conduct a "rehearing". It is required to have regard to the material before the Ombudsman and may also receive further evidence or material in its discretion. It may inform itself as it sees fit, subject of course to the principles of procedural fairness.
2. The Tribunal is required to give appropriate weight to the decision of the Ombudsman, but in the end must reach "the correct or preferable decision" (s 34 South Australian Civil and Administrative Tribunal Act 2013). This requires that the proceedings be a rehearing on the merits.
3. Section 48 of the FOI Act provides:

"In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency."

1. This provision does not directly address the current circumstances where it is a determination of the Ombudsman that is subject to review and a third party who is seeking to establish the exempt status of the document. However, the principle must be the same. A third party asserting that an exemption applies cannot be in a different position to an agency which so asserts. I consider that the applicant bears the burden of establishing that the document is exempt. I did not understand the applicant's counsel to argue otherwise.
2. Whilst the history of the matter is by no means irrelevant, the task of the Tribunal is to come to the correct and preferable decision based on the facts (state of affairs) at the time that the decision is made.[2] Thus the Tribunal must have regard to the changed position of Dr McFetridge as described in para 13 above. He can no longer assert a special interest in obtaining the document as a shadow minister, Member of Parliament, or member of the Committee.
3. As some of the circumstances have changed since the determination of the Ombudsman, the changes also affect the weight that can be given to the Ombudsman's determination. My approach is also slightly different from that of the Ombudsman and I have decided that it is appropriate to approach the matter afresh, without according weight to the Ombudsman's decision.

1. In my view, there can be no doubt that the terms and conditions of the applicant's appointment to the position of General Manager constitute part of his personal affairs. The information in the document concerns his personal affairs.
2. The Ombudsman so found. No party suggested otherwise.

"A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead)."

1. The issue argued before the Tribunal was whether disclosure of information in the document would be unreasonable.
2. It is to be noted that other clauses in the Schedule require an assessment as to whether disclosure of information "would, on balance, be contrary to the public interest." Clause 6 is differently framed and requires a test of "unreasonable disclosure".
3. This test, in my view, invites the widest consideration of any factor that might be relevant to whether disclosure would be unreasonable.[3] Such factors might include the public interest, private interests, and any other relevant circumstance.
4. The test is to be applied in the context of the objectives of the FOI Act. They are set out in s 3 of the FOI Act which relevantly provides:

(1) The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament-

(a) to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and

(b) to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.

(2) The means by which it is intended to achieve these objects are as follows:

(a) ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and

(b) conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy ..."

1. I note four matters that are evident from this provision:
   • (a) The FOI Act seeks to facilitate effective participation by "members of the public" in the processes of government. It intends to confer rights of access to information on "each member of the public". Access is not to be conditional on the status of an applicant for access or on the demonstration of any proper interest in access to the document. However, the Act does recognise the special interest and role of members of parliament.[4]
   • (b) The Act recognises a public interest in promoting the openness and accountability of government
   • (c) The Act also recognises a public interest in the preservation of personal privacy.
   • (d) It is acknowledged that these two aspects of the public interest may be in tension in their application to a particular case.
2. That tension is to be resolved, in the circumstances of a particular case, by the application of the "unreasonable disclosure" test found in cl 6 of the Schedule.
3. The objects of the FOI Act were discussed in some detail in APY v Ombudsman and Anor [2019] SASC 162.[5] That discussion highlights the strong public interest in promoting openness and accountability in government. In this context, the reference to "government" is not limited to Ministers or the public service. As stated by Hinton J[6]:

"The concepts of government and the operations of government as used in ss 3(2)(a) and (b) refer to the system by which the State as a body politic is governed and not to the government, being the party enjoying the majority in the House of Assembly. That is to say, the concepts of government and the operations of government include the operations of the government, but extend to agencies and instrumentalities of the State that may operate independent of government departments, and that are generally created by or pursuant to statute exercising power sourced in statute. The breadth of the concepts caters for the breadth of the power of the State to create executive bodies of various types and confer power accordingly. The inclusive breadth of the concepts also reflects the purpose of the FOI Act and the intention that Members of Parliament be able to obtain the information necessary to the discharge of their obligation to watch and, if necessary, to call the Executive to account." [7]

1. The definition of "agency" in s 4 of the FOI Act is correspondingly broad.
2. In APY v Ombudsman and Anor the Court held that APY was an "agency" as defined in the FOI Act as it is a body corporate subject to control or direction by the Minister.[8]
3. The Court found it unnecessary to determine whether APY was also a body "established or continued in existence for a public purpose by an Act (within para f(i) of the definition of "agency").[9]
4. However, the detailed review by the Court of the provisions of the APY Act is instructive[10]. At paras [84] - [87] the Court identifies extensive provisions that concern the accountability of APY to the Minister and the powers of intervention that the Minister has into the affairs of APY. These provisions undoubtedly reflect the fact (acknowledged on this review) that APY is largely funded by public funds.
5. At para [88] the Court refers to amendments that were made to the APY Act in 2005:

"to provide a legislative framework for a more accountable and transparent system of governance on ... [APY] lands , including increasing ministerial powers and accountability"[11]

1. APY is an agency for the purposes of the FOI Act and there is a clear public interest (recognised by the legislature) in promoting openness and transparency in relation to the governance of the APY lands. This extends to embrace the role of the Minister pursuant to the APY Act.
2. In my view, this public interest in promoting openness and transparency is clearly one factor to be taken into account in determining whether disclosure of the information contained in the document in this case would be unreasonable. Insofar as the applicant argued otherwise, I do not agree.
3. In Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257, at page 259 the Administrative Appeals Tribunal stated:

"Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough, what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.

However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document." (Emphasis added)

1. This statement appears to be endorsed by the Full Court of the Federal Court in Wiseman v Commonwealth [1989] FCA 434; (1989) BC 8908428. The passage from Chandra was adopted and applied by the Tribunal in that case and the Full Court held that no error of law had been demonstrated.[12] I do not accept that Wiseman is distinguishable as suggested by counsel for the applicant. The Court was clearly considering the "unreasonable disclosure" test and not a "public interest" test that might also have applied in that jurisdiction.
2. In Page v Metropolitan Transit Authority (1988) 2 VAR 243 at page 245-6, the Tribunal said that the decision about whether disclosure of personal information would be unreasonable:

"requires a balancing of interests: the right to personal privacy of an individual ...and the object of the Act to extend as far as possible the right of the community to [have] access to information in the possession of the Government or agencies..."

1. In Victoria Police v Marke [2008] VSCA 218, Maxwell P did not accept the appropriateness of the balancing approach that had been suggested in Page and other cases. He suggested that what was required was the making of "a judgement, based on a synthesis of all the relevant features of the case at hand, about whether the disclosure of the personal information to the applicant would be unreasonable". His Honour does not directly comment on whether the "relevant features of the case" would include the public interest in the disclosure of the information. Be that as it may, the majority of the Full Court endorsed the "balancing approach" adopted in other cases.[13] Pagone AJA stated:[14]

"The facts that may be relevant to the balancing process may be as diverse as the facts that arise for consideration"

1. His Honour said of the "unreasonable disclosure" provision:[15]

"The condition for its operation is expressed in understandably wide language. It is wide because the circumstances in which the section may operate are wide, disparate and unpredictable. The two sets of competing objectives which the section deals with are of fundamental importance in a liberal democracy (public disclosure and personal privacy) and a weighing of one against the other must depend upon the specifics of each case in which the two objectives come into conflict."

1. The weight of authority suggests that the Tribunal should undertake a balancing process.[16] The competing aspects of the public interest are to be assessed not in the abstract, but by reference to the facts and circumstances of the case. The Tribunal is required to take into account the competing aspects of the public interest, but the ultimate issue to be determined is whether disclosure would be unreasonable. As stated earlier, this may require consideration of the public interest, private interests or other relevant circumstances.
2. The Ombudsman in his determination cited the following passage from a decision of the Australian Information Commissioner in Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council[17]:

"Information about the gross salary paid to an employee of a government agency has a dual character. It is both information about the income of an identifiable individual (and hence information concerning that individual's personal affairs) and information about the cost of having the duties of the relevant position performed for the benefit of the public. Governments fund their operations by imposts on the public of one kind or another. In a representative democracy, elected representatives are accountable to the electors for decisions made in respect of raising and spending public funds. The public has a strong, legitimate and abiding interest in having access to sufficient information to enable scrutiny of whether funds raised by government are expended efficiently and effectively in furtherance of the wider public interest. This extends to scrutiny of whether the public is obtaining value for money from performance of the duties of particular positions for which a government has decided to allocate funding. This public interest is even stronger in the case of senior officers who have responsibility for devising and/or implementing strategic and operational plans, and delivering key performance outcomes."

1. The Ombudsman noted that this passage had been cited with approval in Clarke v Blacktown City Council.[18]
2. The applicant's counsel correctly pointed out that the legislation under consideration in Burdekin involved a "public interest" test rather than an "unreasonable disclosure" test. So too did the legislation being considered in Clarke. For reasons already stated, I agree that the two tests should not be conflated. However, I do not agree with the applicant's submission that the public interest in accountability of government is irrelevant to the proper application of the "unreasonable disclosure" provision. It is a proper factor to be taken into account in determining whether disclosure would be unreasonable. Understood in this way, I consider that the passage from Burdekin cited above has relevance and application to this case.
3. Disclosure of the salary of government officers was also considered in Asher v Department of State and Regional Development [2002] VCAT 609. MacNamara DP stated:

"It seems to be generally accepted that the quantum of remuneration received by an officer for his or her discharge of government duties is information relating to that officer's personal affairs: [citations omitted] Nevertheless the total figures for the remuneration packages of officers have been disclosed by this Tribunal and its predecessor the Administrative Appeals Tribunal on a number of occasions on the basis that whilst the information may relate to the officer's personal affairs, in the circumstances the disclosure would not be regarded as unreasonable. In Forbes v Department of Premier and Cabinet (1993) 6 VAR 53 Mr Ball, a Deputy President of the Administrative Appeals Tribunal, ordered the release of the total remuneration package of the Secretary of the Department of Premier and Cabinet. In Ricketson's case_[19]_ Judge Hannon ordered the disclosure of the total remuneration package of the Chief Executive of the Royal Women's Hospital. In Milthorpe's case_[20]_, I granted access to the total remuneration package of the Chief Executive the Shire Council and its Tourism Office. By way of contrast, in O'Sullivan v Department of Health and Community Services (No 2) (1995) 9 VAR 1 20-21 I declined to order release of the total remuneration package of two officers involved in the 'Children of God' case on the basis that, unlike the Chief Executive of the Royal Women's Hospital, those officers could not be regarded as 'high flyers'."

1. The Deputy President also referred to Thwaites v Department of Premier and Cabinet (1996) 10 VAR 437 where Megay DP declined a request for disclosure of "all documents relating to performance bonuses paid to secretaries of government departments" and stated:

"... the Tribunal does not regard the cases cited by Mr Ball as standing for an immutable principle that precise information relating to salaries and benefits should be disclosed."

1. In Asher, MacNamara DP considered whether disclosure of the total remuneration packages of two public servants would be unreasonable. One was the Chief Executive of Tourism Victoria. The other was the Director, Office of Manufacturing. She was an Executive Officer Level 3 who, along with 11-14 peers, reported through the Head of the Business Group to the Departmental Secretary. It was held that disclosure of the total remuneration of both officers would not be unreasonable. In the case of the Director, Office of Manufacturing, it was held that her office was a significant one, as indicated by the title and responsibilities. She was sufficiently "a high flyer". MacNamara DP stated[21]:

"The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in the matter, ... although it is ... clearly a matter relative to the personal affairs to the officers themselves. .... The existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation."

1. Counsel for the applicant submitted that Asher was decided before the decision in Marke and that the Tribunal in Asher proceeded on the basis of the wrong test. MacNamara DP in Asher appears to have followed the test as espoused in Page. That approach was not doubted by the majority of the court in Marke. I consider with respect that the general approach of the Tribunal in Asher was correct, albeit that undue emphasis on the notion of a "high flyer" could lead to an overly simplistic approach. It is necessary to consider how the public interest might be served by disclosure of the information in question and to have regard to that together with all other relevant facts, circumstances and considerations arising in the particular case. It is just one factor in the balancing exercise.
2. I note that there is common reference in the cases to "total remuneration package". As a matter of logic, it is difficult to see why total monetary remuneration should be distinguished from other entitlements or benefits conferred on an individual by the terms and conditions of their appointment or employment. If the relevant public interest is in the ability of the public to ascertain whether there is "value for money" in the performance of a role, all of these entitlements and benefits (as well as performance expectations) might be relevant to that issue. A relatively moderate salary might otherwise hide the fact that the public was bearing the cost of significant hidden benefits.
3. Various factors have been suggested in the authorities as relevant to the question of "unreasonable disclosure". I refer, for example, to Marke[22], Chandra[23], Page[24] and Bradshaw[25]. I have regard to the matters mentioned in those cases. I also note, however, that the matters listed are by no means intended to be exhaustive and that not every matter will necessarily be relevant in every case.
4. It was suggested by Maxwell P in Marke that one factor to be considered is "the nature of any interest that the applicant can demonstrate" in the personal information or other information in the document. This is not to say that an applicant be able to demonstrate a particular interest in the document. If an applicant has a particular interest, that may be a relevant factor. and are examples of cases where the applicant could demonstrate a reason (going beyond other members of the public) as to why he legitimately required the relevant information. Those applicants demonstrated a particular interest which was taken into account in favour of disclosure. However, the absence of such interest does not necessarily suggest that disclosure will be unreasonable. Any member of the public is entitled to seek information under the Act, without disclosing or demonstrating any reason for doing so. As Weinberg JA stated in ,

"There are difficulties associated with distinguishing between, on the one hand, a journalist who seeks information in order to disseminate it as widely as possible and, on the other hand, a private individual who seeks the same information for his or her own purposes. The FOI Act does not, as a general rule, accommodate or support any such distinction. It does not, in the normal course, contemplate that the motives of the person seeking access to a document should be scrutinised and characterised as either worthy or unworthy. These are value judgements, which are likely to be highly subjective, and have no place in a scheme that is designed to ensure the proper accountability of Government."

(Emphasis added)

1. The failure to establish a particular interest in the information is not a factor that, of itself, would suggest that disclosure is unreasonable. As Muscat J stated in Bradshaw:[28]

"It is accepted that an applicant seeking access to documents held by an agency is not required to demonstrate any particular interest in the document nor disclose what might be done with the document if access is granted. In this way, the FOI Act deliberately does not discriminate against one applicant over another. However, there are a number of authorities which have held that in an appropriate case, a decision-maker is permitted to have regard to the special interest of an applicant in seeking access to documents when considering this aspect of the exemption."

1. For the sake of completeness, I refer to one other legal issue. At para 25 of his determination, the Ombudsman suggested that the personal affairs exemption should be approached on the basis that release of information "is to be treated as release 'to the world at large'." The Court of Appeal in Marke explained why that is not necessarily a correct approach. The better formulation is that there is potential for the document to be released to the world at large.[29] Each case must be considered on its merits as explained in Marke.
2. In relation to the potential wider dissemination of information released, it may be relevant to consider to what extent the information is already known. Insofar as the personal information contained in a document is widely known or "notorious", that may be a strong factor suggesting that disclosure would not be unreasonable.[30]

1. When he applied to the Ombudsman for external review, Dr McFetridge indicated that allegations had been made to him concerning the applicant. These allegations raised the question of whether the applicant was complying with the conditions of his employment. Reference was made to alleged unauthorised time in Adelaide, unauthorised allowances and other unauthorised payments. Dr McFetridge indicated that without production of the contract in full there was no way of ascertaining the accuracy of those allegations. He asserted that the contract should be disclosed as the position of General Manager was "taxpayer funded".
2. It appears that the application for external review was not at this time provided to the applicant (so he was unaware initially of these allegations), but he was invited to respond to a "Provisional Determination" prepared by the Ombudsman. This Provisional Determination proposed that the document should be disclosed in full.
3. The applicant made submissions to the Ombudsman. He opposed the release of the document, stating that the content was highly sensitive and personal to him. He relied on cl 6(1) of the Schedule and submitted that disclosure would be plainly unreasonable. He submitted that he was not a government employee and that APY was not established for a public purpose. He submitted that there was no public interest in the disclosure of his contract. He stated that Dr McFetridge's interest in the document was unclear. In response to a suggestion from the Ombudsman that Dr McFetridge's interest was "in order to ascertain whether any wrongdoing has occurred", he submitted that such suggestion did not make any sense.
4. The Ombudsman published a Revised Provisional Determination and sought further responses.
5. The applicant responded through his solicitor. The response contains legal argument as to the applicability of cl 6. It does not take the factual situation any further.
6. Dr McFetridge also responded, addressing the applicant's enquiry about the nature of his interest in the document. He referred to his continuing membership of the Committee and as a Member of Parliament. He stated that constituents in his seat had "expressed concern about the amount of money being spent in Aboriginal Affairs and whether this spend is effective in helping the State's most vulnerable constituents".

"25. I believe the release of the details in my employment contract could be used in an attempt to embarrass me and alienate me from the general Anangu community. I am not suggesting that Dr McFetridge would do this, or seek to do this.

1. I say that my employment contract details, if they became publically available information, however, could be used by certain persons to seek to cause dissention against me on the basis of the income I receive, and the terms and conditions of my employment. I believe this may undermine my ability to maintain harmonious relationships with all of the Anangu, who as general manager of APY, I am attempting to serve and assist."
2. The applicant also addresses the allegations that had been made to Dr McFetridge, stating that they have no foundation. He denies any wrongdoing and asserts that the allegations are false and vexatious. There are other matters dealt with in the affidavit, but it is not necessary to recite them. The affidavit also refers to legal advice allegedly received by the applicant. Those references do not assist the Tribunal.
3. Whilst he was still actively involved in the proceedings, Dr McFetridge also filed an affidavit. Counsel for the applicant submitted that this affidavit should be ignored, given Dr McFetridge's withdrawal from active participation in the proceedings. I intend to ignore the affidavit, with one exception. Exhibit DMcF 3 to the affidavit is a copy of an article published in The Advertiser on 7 November 2017. It is not in dispute that the article was so published. Insofar as it is relevant to the matters before the Tribunal, the article should not be ignored.[31]
4. The article claims that the newspaper had obtained a copy of an email sent from the Minister's Office to the Acting General Manager of APY prior to the APY Board meeting where the proposed appointment of the applicant was considered. The email was headed "Package Requirements". In reference to the email, the Minister is quoted in the article as saying:

"The terms and conditions were requested by Mr King and passed along by my office.

APY resolved to appoint Mr King under those terms and conditions, which were subsequently approved by me as required by legislation after the APY Executive made the decision to appoint Mr King."

The article sets out a number of dot points under a heading: "Richard King's Contract Requests." The implication is that these dot points set out the terms and conditions referred to in the email. Given the purported statement by the Minister, the article gives the impression that the dot points indicate terms and conditions under which the applicant was appointed.

1. I make no comment on the accuracy or inaccuracy of the claims made in the article. It would be inappropriate to do so in these Reasons for Decision. I note that disclosure of the document in dispute would reveal such accuracy or inaccuracy.
2. As to the salary paid to the applicant (as distinct from other terms and conditions), it was agreed by both parties that the salary of the General Manager is published each year in the Annual Report of APY. This document is available to the public on the APY website. The Tribunal was provided by consent with documentation and a link demonstrating that fact.

1. I now mention some aspects of the matter to which I have had regard in considering whether disclosure would be unreasonable.
   • (a) APY is largely funded by public monies. There is a legislative recognition that APY should be accountable to the Minister and ultimately the public in respect of the administration and expenditure of such moneys. The Minister is accountable to Parliament and ultimately the public in respect of his statutory oversight of such matters. It is clear from the applicant's affidavit that governance and financial administration within APY has in the past been lacking and has given rise to public concern. Legislative amendments were introduced to promote greater accountability and transparency.
   • (b) APY is an agency for the purposes of the FOI Act and documents in its possession are subject to requests under the Act. The applicant's claim that he "is not a government employee" cannot detract from the undoubted public interest in the accountability and transparency of APY financial affairs.
   • (c) The applicant occupies a very senior statutory position within APY and attracts substantial remuneration, entitlements and benefits.
   • (d) The material redacted from the document refers to salary, and other terms, conditions, entitlements and benefits set out within the applicant's terms of engagement. It includes expectations and performance requirements.
   • (e) There is a clear public interest in the public being able to scrutinise those terms of engagement and assess whether they are appropriate and whether the appointment was providing "value for money". That scrutiny might include an assessment of whether the applicant was operating in compliance with the terms of his engagement and whether he was addressing the expectations and performance requirements.
   • (f) It is clear that Dr McFetridge sought access to the document for the very purpose of scrutinising those matters. Whilst he no longer has a special position and role as a Member of Parliament, such scrutiny is still appropriate for a member of the public interested in such issues. The Advertiser article tends to confirm that the details of the applicant's appointment are matters in which the public takes a keen interest.
   • (g) The document was in the possession of the agency as a result of the requirement in s 13D of the APY Act. The conditions of the applicant's appointment had to be approved by the Minister. Section 13D is part of the legislative scheme to ensure that APY is accountable to the Minister in relation to its administration of (largely) public funds. The Minister is accountable to Parliament. It was of course necessary that the agency retain a copy of the document approved by the Minister.

1. Having conducted the balancing process required by the authorities and having regard to all circumstances of the case, I conclude that disclosure of the document would not be unreasonable.
2. The document is not an exempt document and access should be granted in full.
3. The determination of the Ombudsman is affirmed.

[1] He also sought a second document which, as it happened, was not held by the Department.

[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 per Hayne and Heydon JJ at para [101].

[3] Victoria Police v Marke [2008] VSCA 218, (2008) VR223, per Pagone AJA at [104]; Bradshaw v SA Police [2012] SADC 184 at para [56].

[4] See APY v Ombudsman and Anor [2019] SASC 162 at paras [95] - [96].

[7] See also Lange v ABC [1997] HCA 25, (1997) 189 CLR 520 at page 561; Egan v Willis [1998] HCA 71, (1998) CLR 424 per Gaudron, Gummow, and Hayne JJ at para [42].

[11] South Australia Parliamentary Debates, Legislative Council, 14 September 2005, page 2529.

[13] See Weiberg JA at paras [68] and [76]-[77], Pagone AJA at para [96].

[16] See also Bradshaw v SA Police [2012] SADC 184 at paras [53]-[56].

[17] [2004] QICmr 2 at [27]; cited at para [34] of the Ombudsman's determination.

[18] [2013] NSWADT 36 at para [71].

[19] (1989) 4 VAR 10.

[20] (1997) 12 VAR 105.

[21] At para [18]. The report of the case appears to have grammatical error, which I have attempted to correct by redaction.

[22] Especially per Maxwell P at para [19].

[23] See passage cited at para [39] above.

[24] (1988) 2 VAR 243.

[26] [2012] SADC 184.

[27] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 per Lockhart J at page 438; Vic Police v Marke [2008] VSCA 218 per Weinberg JA at para [66].

[30] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 at page 436, Victorian Police v Marke [2008] VSCA 218 per Weinberg JA at paras [83]-[84].

[33] Marke per Weinberg JA at para [79]; per Pagone AJA at para [96].

[34] Marke per Weinberg JA at para [79].