New years eve at Kirribilli

An unsuccessful Freedom of Information application for documents by the Sydney Morning Herald about the cost and the guest list for the Prime Minister's new years eve party at his official Sydney residence is hardly a matter of great significance but it raises some interesting issues.

The application was refused on the grounds that any relevant documents held by the Prime Minister were not "official documents of a minister" as defined by the FOI Act. According to the report, the relevant factors cited by the Prime Minister's Office were that "Mr Rudd and Ms Rein had personally invited guests to a private function at Kirribilli House on New Year's Eve" and "Mr Rudd and Ms Rein personally met all the additional costs associated with the conduct of the … function". It's correct that documents held by a minister of a personal kind, or comprising the records of a minister in her or his capacity as a member of Parliament, do not fall within the terms of documents covered by the Act.

It sounds as if the request was refused on the basis, that as the documents sought were outside the scope of the Act, the application was invalid, rather than a claim that the documents were exempt from disclosure. As the decision was made on behalf of the minister there is no right of internal review, no right to complain to the Ombudsman, and given the nature of the rejection, maybe no right of external review by the Administrative Appeals Tribunal. Just what constitute documents of a personal kind has not as far as I am aware been previously tested. Where the line should be drawn between the Prime Minister's use of public property and those aspects of the life of the Prime Minister and his family that are clearly of a personal nature is unlikely to be resolved by independent review in this case either.

In Senate Estimates hearings in February there was extensive questioning of officers of the Department of Prime Minister and Cabinet about the function. It emerged then that the Department did not have a copy of the guest list and that the additional costs of the function had been reimbursed to the Department by a payment by the Prime Minister's wife. In subsequent responses to questions taken on notice, the Department said Ms Rein had reimbursed all staff and other costs associated with the function over and above normal running costs, calculated by the Department and paid in response to an invoice sent to the PM. But the Department declined to provide further information, in accordance with what was described as a longstanding practice to not disclose details of public or private functions held at official residences.

It's unclear whether the Herald's FOI request was to the Department or the Prime Minister's Office. It would make a difference. If it was to the Office, the response received is what it is and that may be the end of the matter. If it went to the Department, however, the response received would not be adequate. A strange quirk in the Federal Act permits the minister or a person in his office to make a determination on a request for documents held by the agency but the response would have to determine the status of those documents. While the Department still may not hold a copy of the guest list, as made clear to the Estimates Committee, it holds documents about the costs of the function. The definition of " official document of a minister"referred to above would not be relevant to dealing with a request for documents held by the Department. The law says the documents held must be provided unless they are exempt. It might be hard to argue that a document detailing costs and a reimbursement for an event on public property involve unreasonable disclosure of personal information or would attract any other exemption. Any decision to refuse access would be subject to the normal rights of review.

As for guest lists at official functions not sure what has happened here, but the UK media for years have used FOI to keep an eye on who makes the list for Chequers, after this breakthrough in 2005.