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Monday, March 10, 2008

The FOI casebook throws up some unusual angles

Some rarely raised issues emerged in these recent Freedom of Information cases around the country:
  • Case 1. When access is sought to information about a dead person, some FOI acts require consultation prior to disclosure with the nearest or closest relative. This decision by the Acting Information Commissioner in Western Australia was that where there were five siblings with an interest in personal information held about their deceased mother, the eldest was the person who should be given this status. He rejected a submission that the quality of the relationship between the deceased person and the relative should be considered as "too vague and subjective to be of real assistance in achieving the objects of the FOI Act".
  • Case 2. Still in the West - this decision by the Acting Information Commissioner, based on a Supreme Court decision, singles out that jurisdiction as the only one in Australia where the review body does not have power to consider whether legal professional privilege has been waived by some action by a government agency. Elsewhere an important element in consideration of this exemption, is whether the privilege claim has been lost as a result of action inconsistent with the claim of confidentiality.
  • Case 3. All our FOI acts contain a requirement for an agency to publish certain information and to make it available without the need for an application under the act. It requires usually the publication of documents used to make decisions that impact on members of the public. Centrelink hadn't interpreted this obligation to cover its internal Freedom of Information manual. Justice Finn of the Federal Court said that such a document came within the scope of the publication requirement in the Federal Act but dismissed an action in which the applicant sought a statement of reasons about why this was so, as Centrelink had already released the document.
  • Case 4. An officer of the Australian Taxation Office who is a defendant in civil proceedings for malicious prosecution or misfeasance in public office, sought access to documents about the matter under the Federal FOI Act, but was refused access largely on the grounds that disclosure of information to him would be an offense under Section 16 of the Income Tax Assessment Act. However the Act includes the provision that permits disclosure "in the performance of (a) person's duties as an officer". The Tribunal decided that these words should be widely interpreted. The secrecy provision would normally apply to documents requested but disclosure to the applicant, who was performing his duty as an officer in defending the proceedings in the Supreme Court, came within the exception in the Tax Act. (Paragraph 30).
  • Case 5. Two years after an application, and 18 months after proceedings commenced in the Administrative Appeals Tribunal, the Australian Taxation Office succeeded in an application to the Tribunal to have the matter remitted so that it could have another crack at getting the decision right. The applicant sought access to documents concerning income tax liability over a period of 10 years, and the Tribunal refers to many similar applications from persons under investigation in connection with offshore tax schemes (Project Wickenby). The Taxation Office had not undertaken search for documents on the basis that all were likely to be exempt. Further delay is now inevitable, but here is the Tribunal's comment: "Much was made by the applicants of the amount of time that has elapsed since the original applications and the time and effort that the applicants have expended on the applications and review process. While a degree of impatience and exasperation might be understandable, any past wasted effort involved can no longer be recouped. The relevant question is what course of action will involve the most efficient disposition of the issues at the least cost in the future". When this matter is finally resolved, the applicants are likely to find that the cost rules in the AAT are so restrictive that they are very unlikely to qualify for a recommendation that the Government pay their costs, despite the fact that all this has been no fault of theirs.

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