"Buried in the labyrinth" by Margaret Simons

In the latest edition of the Griffith Review, freelance journalist Margaret Simons writes about her experience as a concerned citizen who sought information in order to understand a government decision that impacted on her neighbourhood. Her efforts included an unsuccessful Freedom of Information application for documents about the checks done before a convicted paedophile was released and housed in a Melbourne suburb, next to a house in which two children lived, and at the point where school children gathered each day to walk to school. This was after Mr. Jones had been removed following clear evidence of a stuff up in the system.

The Victorian Civil and Administrative Tribunal upheld the decision to refuse access. In this decision and another recent decision to refuse access to documents about the establishment of an independent police corruption watchdog, there are clear signs of a gulf between Victorian (and Federal) versus NSW and Queensland thinking about public interest matters.

In the Victorian decisions, the public interest was relevant either in the context of an exemption claim or in considering the Tribunal's override discretion to grant access to an otherwise exempt document. Both give weight to grounds for refusing access on public interest grounds that have been the subject of great scepticism in the NSW Administrative Decisions Tribunal and the Court of Appeal and aren't relevant in Queensland.

In Victoria the Tribunal took into account matters such as whether disclosure would reveal deliberations at the highest levels of government; the likelihood that disclosure would lead to unnecessary confusion and debate; the impact of disclosure on the frankness and candour of officers in offering advice in future; and the importance of the integrity of the decision making process.

These type of considerations (which come from a 1985 decision involving the present Prime Minister when he was Shadow Treasurer and known as the 'Howard factors'), either do not apply in NSW because the FOI Act says they are not relevant (confusion and debate) or, have been rejected in the absence of credible evidence, on grounds that they are broad, theoretical and reflect thinking in the pre FOI era. See this earlier link to the NSW Court of Appeal decision in the WorkCover case.

The Howard factors appear to be alive and well in Victoria (and some Federal circles) but not in NSW, or Queensland - where this FOI guidance( FOI Concepts: Public interest balancing tests - Ver 1.0) from the Information Commissioner lists these considerations as not relevant.

Meanwhile Margaret Simons is left to ponder just what people in the Victorian system were thinking when they plonked Mr. Jones right in the middle of the neighbourhood.

Thanks to an alert reader, Melissa Dryden for the lead on the Margaret Simons' article.