External review should encompass full merits review and discretion to disclose.

Whether an external Freedom of Information review body should have power to require release of an otherwise exempt document- either on public interest or other grounds- is one of those important policy matters that can spark plenty of debate.

It's an issue several submitters are running up to the Senate Public Administration and Finance Committee in Canberra this afternoon.The Federal Act since enactment has stipulated that a finding by the AAT that a document is exempt is the end of the matter. Elsewhere the Victorian Civil and Administrative Appeals Tribunal has legislative power to exercise an override discretion where it decides the public interest "requires" disclosure of an otherwise exempt document. The courts have narrowly defined requires to mean necessitates or compels.

In NSW there is no specific legislative power in the relevant legislation but the Supreme Court (Nicholas J) in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker in every case where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and proper decision, consistent with the objects of the Act.

In IPART v Services Sydney [2008] NSWADTAP 79 the Tribunal Appeal Panel has qualified the effect of the McGuirk decision. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

The main issue before the Appeal Panel was the interpretation of the NSW FOI Act concerning Tribunal review powers when an agency has decided that a document is exempt under clauses 1,2 or 4 .The Act (Section 57) states that the Tribunal is to consider and decide whether there are "reasonable grounds for the claim." The issue was whether Section 57 was a specific contrary provision that ousted the more general Tribunal powers on review set out in Section 53 of the Administrative Decisions Tribunal Act:to make the "correct and preferable " decision on the status of the document, that is undertake full merits review of the original decision.

The Appeal Panel [33-45] accepted a submission that the High Court in the McKinnon case had established a relevant precedent for what constitutes a ‘reasonable grounds’ inquiry. That case involved consideration of what the law required when review was sought of a decision to issue a conclusive certificate - whether there were reasonable grounds for the claim.There was enough said in the judgments of the majority to satisfy the Appeal Panel that the High Court had accepted that when an act set out two different procedures for review Parliament meant the more particular to limit the more general. That is where the NSW FOI Act stipulated a "reasonable grounds" review for a decision that a document was exempt, this served to limit the Tribunal's general powers to undertake full merits review of the decision.

In my opinion full external merits review of decisions to refuse access should be available for all exemption claims. The Federal Government appears to have accepted this and has a bill before Parliament which will achieve this result. What an irony that the significance of the High Court's decision in McKinnon will wane in the Federal arena as a result, but in line with this Tribunal decision will continue to limit full review in NSW of any decision to claim documents as exempt as cabinet documents or, of even more concern, of documents claimed exempt under Clause 4 (law enforcement and public safety), an exemption used very frequently by NSW Police. All this in a state where the Premier has announced the end of secrecy and plans to turn the Freedom of Information Act on its head.

The NSW Ombudsman's review report didn't include any commentary or specific recommendations on these matters. The Premier should commit, in the new Open Government Information era, to full merits review for all exemption claims and to an override discretion for the external review body.