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Thursday, February 25, 2010

Plenty more in FOI decision apart from the kitchen cabinet

The "kitchen cabinet" aspect of the decision by Deputy President Forgie of the Administrative Appeals Tribunal in Telstra wasn't the only element of the decision worth noting . Her examination of the law, precedents and findings concerning the cabinet document exemption (provided in the event she was wrong in concluding that the Special Ministers' group was not a cabinet committee), and the internal working document exemption and associated public interest test, provide something of a case book on these issues, worth filing away for future reference.

Cabinet document exemption
Deputy President Forgie's consideration [152 -168] of whether two reports submitted to the Special Ministers group-one prepared by the Department of Finance, the other by the Australian Competition and Consumer Commission-were  documents within the meaning of s 34(1)(a) involves detailed dissection of the two limbs of the exemption: a “document has been submitted to Cabinet for its consideration or is proposed by a Minister to be so submitted." and was “brought into existence for the purpose of submission for consideration by the Cabinet."

While not new, an observation of interest [164] is that once these requirements have been met there is no need to examine whether  Cabinet actually considered the document "in the sense of giving it careful thought or even any thought at all. It is enough that it has been offered or presented, and so submitted, to it for its formal consideration." It would have been enough in this case[165] that one of the documents in question was taken into the Cabinet room and was available for consideration. Before thoughts run to the old Queensland practice of stacking files on a hospital trolley parked in the room in order to attract the relevant exemption there, it's worth bearing in mind that section 34 requires more.The only change to s 34(1)(a) proposed in the Freedom of Information Reform (Amendment) Bill is the addition of the word "dominant" before purpose in the second limb.

Internal working document exemption
Deputy President Forgie's examination of the general principles drawn from the case law regarding the application of s 36 [173-189], what constitutes purely factual material [191-192] and the public interest test [193-207], and the analysis of contentions of the parties on this score [208-230] include many useful observations about the application of the law. The conclusion was that all the documents claimed exempt on this ground were not exempt. The following public interest issues are worth noting.

Transparency in public administration
Deputy President Forgie sees the public interest usually identified as a right to access government information better described as the public interest in "transparency in public administration."[213]

Irrelevance of claimed public interest in avoiding unfair advantage
In rejecting the Department's submission that a public interest against disclosure was that release would give Telstra an unfair advantage over others, Deputy President Forgie said this was " as irrelevant as thoughts of how the person requesting access will use the documents[226], and continued
227. There is nothing to say that the information would be available only to one participant. Subject only to the qualification regarding business and personal affairs, if it is accessible at all under the FOI Act, it is accessible by whosoever cares to request it and to pay any relevant fees and charges. Given that all or any participants in the unfinished competitive process have a right to seek access under the FOI Act and all requests must be considered in the same legislative framework,  I do not accept that any one would be given an advantage over another by the mere fact of being given access. The fact that one chooses to make a request and others do not may give that participant an advantage but it is an advantage of its own making and, possibly, a very short term advantage. It is an advantage brought about by its choosing to make a request. Any disadvantage to others is brought about by their not taking the same path but it is a disadvantage that they may easily rectify by making a request. In view of this, the fact that one participant in a competitive process may see certain documents as a result of a request under the FOI Act cannot be a relevant factor in this case in deciding what is contrary to the public interest. 
Public interest in informed debate and fair and appropriate regulation
...there is a public interest in an informed debate about the regulation of the telecommunications industry. I would also accept the more general statement of Telstra that there is a public interest in ensuring that the telecommunications industry is regulated fairly and appropriately. [228]
Public interest not dependent on evidence of widespread community interest in the issue
230. True it is that there is no evidence in the material pointing to any public debate concerning the methodology underpinning Telstra’s access prices for the ULLS. The existence of a public debate on a particular matter may be relevant in underlining that the matter is of public interest but, in some circumstances, it may simply show that a matter is of interest to the public but nothing more. Equally, the absence of a public debate does not demonstrate that a matter is not in the public interest. A lack of overt interest by the public at any particular time cannot determine that the matter is not a matter of public interest. If it were otherwise, it would be difficult to argue that notions of Cabinet confidentiality underpinning the exemption in s 34 of the FOI Act had their foundation in the public interest in maintaining a system of responsible government. Neither Cabinet confidentiality nor responsible government is a subject that garners much debate amongst the general public.
A finding of public interest immunity in other proceedings does not determine the public interest for FOI purposes
234. The (Australian Competition Tribunal) ACT found that it was arguable that the principle of public interest immunity extended to documents prepared by government departments for submission to the Senior Ministers group. It went on to weigh the two public interests at stake: the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and the public interest that the administration of justice shall not be frustrated by the withholding of documents. It decided that the latter outweighed the former in the circumstances. Not to disclose would frustrate the administration of justice in that Telstra would be at a critical disadvantage regarding a major issue were it not to be given access. The ACCC, whose determination was under review and it and the Commonwealth which were represented in the proceedings, would have access to it. Considerations regarding the administration of justice did not weigh so heavily that the ACCC report was disclosed to the public generally.

235. The fact that this was the conclusion reached by the ACT cannot determine the way in which I decide whether disclosure of the ACCC report would be contrary to the public interest. The circumstances and matters to which I must have regard are not limited to the two that determine whether a document is subject to public interest immunity. Quite apart from the matters I have identified as being relevant to the public interest in the previous section of these reasons, there is the underpinning philosophy of the FOI Act that the right of the Australian community to access to information in the possession of the Commonwealth be extended as far as possible.
The prior release of some information raises questions about secrecy arguments for related information
236. While it is true that the contents of the ACCC report have not been made public, the Senior Ministers did not choose to keep secret their request for it nor their deliberations to that point. In the Joint Media Release issued on 19 December 2005, the results of their deliberations to that point were revealed. It announced that the government had been considering retail pricing parity and the setting by the ACCC of wholesale access prices for the ULL. This was followed by announcement of the decision to make explicit Telstra’s retail pricing parity obligations and its consequential decision to seek further information from the ACCC about the impact of the policy on its wholesale ULL pricing decisions before determining whether any further action was required to ensure Telstra is able to fulfil its pricing parity requirements. The Government also made public that, while the ACCC was finalising a decision whether to accept or reject its undertaking for ULL prices, Telstra had separately sought the Government’s intervention to direct the ACCC on how ULL prices should be determined.
237. When I have regard to the public interest in telecommunications that I set out in section E. above together with the nature of the right of access created by the FOI Act, it seems to me that the balance lies in favour of disclosure. The Government itself put its request for the ACCC report and the subjects it was to address squarely in the public arena. That report later took a central role in the proceedings before the ACT when it reviewed the ACCC’s determination. Goldberg J found that it contained material and information on a critical issue to be determined on the review i.e. whether Telstra’s ULLS price should be averaged or de-averaged. The ACT’s decision affirming the ACCC’s determination is in the public arena. The ACCC’s report was never considered by the Senior Ministers’ group or by Cabinet. To disclose it would not be to disclose matters considered by Senior Ministers. It may be to disclose the topics on which the Senior Ministers’ group sought the report but the government had already done that itself through the Joint Media Release. The opportunity for the Senior Ministers’ group to consider the ACCC report has passed but the knowledge that it was requested and the central role it played in the ACT consideration remains. Disclosure at this stage is relevant in informing public debate on the maintenance of an effective system of telecommunications in Australia. Its disclosure is consistent with the public interest in the administration of justice. An integral part of that public interest is the transparency of proceedings. The ACT’s consideration of whether the doctrine of public interest immunity applied to the ACCC’s report did not need to consider that wider aspect and could focus on whether or not lack of disclosure would frustrate the proceedings. I do need to consider it as one of the circumstances or matters pertaining to whether or not disclosure would be contrary to the public interest.
This exemption is unchanged by the FOI Reform (Amendment) Bill, except for the new heading "deliberative documents", but changes to the object section and a link between that section and specified public interest factors in the Bill in favour of disclosure should tip the balance further in that direction.

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