Snowy Hydro documents - when is debate unnecessary?

There are media reports today that the NSW Government has responded to a Legislative Council resolution requiring the tabling of documents concerning the sale of the Snowy Hydro. On this morning’s ABC radio AM program - see transcript "NSW Greens outraged by withheld Snowy Hydro documents" - discussion focused on the fact that 40 boxes of documents had been tabled but a further 25 boxes of documents had been subject to a privilege claim and only available for inspection by members of Parliament. Greens Upper House Member Sylvia Hale said that the letter accompanying the documents asserted that disclosure would be contrary to the public interest because they could lead to “unnecessary debate”.

I haven’t seen the letter but if this claim is correct, someone somewhere in the system seems to be blissfully unaware that this sort of argument, while frequently claimed, would be unlikely to get a smooth run in any FOI court or tribunal hearing. Its dangerously close to one of the “Howard factors” first adopted in a Federal FOI case 20 years ago – “that confusion and unnecessary debate resulting from disclosure of possibilities considered” would be contrary to the public interest. This “Howard factor” wasn’t argued in the recent landmark NSW Court of Appeal decision in Law Society v WorkCover Authority. But the Court pulled no punches in generally commenting that the Howard factors were a formulaic theoretical list of criteria developed in the pre FOI era of closed government.

The Court said that public interest factors for and against disclosure needed to be weighed with facts required to support assertions. It added there was a strong public interest in access to information held by the government.

As long ago as 1987 a Senate Committee said that this Howard factor implied that the Australian community

"lacks the sophistication to distinguish between a proposal canvassed as an option and a proposal actually adopted…… The Committee records its conclusion that possible confusion and unnecessary debate not be factors to be considered in calculating where the pubic interest lies”

The Australian Law Reform Commission in its 1995 review of the Federal Freedom of Information Act agreed.

The NSW FOI Act in Section 59A states that in considering public interest factors it is irrelevant that disclosure would cause the applicant to misinterpret or misunderstand the information because of an omission from the document or for any other reason.

The Greens have called for an independent legal arbiter to examine the documents.

In debate on the motion in the Legislative Council on 25 May, Minister Della Bosca argued that disclosure of the documents now that investors have been invited to subscribe to shares may raise legal issues and contravene Australian Stock Exchange rules. He failed to persuade the Council on this.

He may have had a point but "contrary to the public interest because it might lead to unnecessary debate" may not have been the best way to seek to protect sensitive information from disclosure.

There have been further developments with claims that some documents may have been destroyed - Treasury says that these were only copies and all relevant documents have been provided.