Major NSW Court of Appeal decision boosts FOI

In the most important court decision in the 17 years since the NSW FOI Act was introduced, the Court of Appeal in WorkCover Authority of NSW v Law Society of NSW (2006) NSWCA 84, has strongly reinforced the importance of the openness and accountability objectives of the FOI Act.

The Court of Appeal rejected arguments that the Administrative Decisions Tribunal Appeal Panel had erred in law in deciding that a consultant’s report prepared by a legal costs expert as part of a legislative review of costs in workers compensation matters, was not an exempt document.

The 45 page decision includes important clarifications about some of the FOI Act exemption provisions: legal professional privilege (does not apply where a lawyer is acting in another capacity); internal working documents (after decisions have been made, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic. theoretical propositions developed in an era of closed government but must be supported by facts); and secrecy provisions in other acts (must be read narrowly and in any event do not prevent disclosure under FOI when qualified by a provision which permits disclosure “with other lawful excuse”).

While lawyers will find the legal professional privilege elements of the decision of interest, the more significant aspect are the Court’s views about public interest in the context of internal working documents. The Court says in effect that tick and flick approaches based on what are known as the “Howard factors”, a 1985 Federal Administrative Decisions Tribunal decision in a case initiated by the current Prime Minister, do not represent the proper approach.

WorkCover had relied on 3 of these factors – communications at high levels of government, documents relating to the development of policy, disclosure would not fairly disclose the reasons for a decision subsequently taken – in arguing that it was contrary to the public interest to release the report.

The Court says that when considering documents after decisions have been made, there is a need for factual information in order to identify tangible harm that will flow from disclosure in order to satisfy the public interest test.

The judgement gives some legal standing to the scepticism expressed in other NSWADT decisions (and elsewhere including the Queensland Information Commissioner decision in Eccleston and Department of Family Services and Aboriginal and Island Affairs (1993) 1QAR 60) about the “Howard factors.

It will provide some useful support for arguments in the High Court of Australia when it considers on 18 May the case to be put on behalf of The Australian’s FOI Editor, Michael McKinnon when he challenges a Federal Court finding regarding a ministerial certificate issued by the Federal Treasurer. Public interest considerations are a key element in the case.

One intriguing aspect of the Court of Appeal case is that the WorkCover Authority declined to make the documents for which exemptions were claimed available to the judges. As two of them comment, WorkCover created a problem of its own making, in that this made it virtually impossible to satisfy the Court regarding the claim for legal professional privilege

On another tack, there has to be a question about the time, cost, and energy that WorkCover invested in seeking to protect a document now 4 years old and regarding a matter that the ADT and the Court of Appeal found had been concluded some years ago.

Will the eagle eyed NSW Treasurer wrestling with budget problems, be concerned about the use of taxpayers’ funds in all this, particularly as WorkCover have been stuck with an order to pay the Law Society’s costs of the Court of Appeal case.