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Monday, July 26, 2010

Last gasp for "confusion and unneccessary debate" argument?

Well there may be others still to come, but the clock is ticking down to 1 November when changes to the Freedom of Information Act should see this claim as a public interest against disclosure under the Commonwealth act despatched to the bin. In the meantime as reported by Ben Grubb in the Sydney Morning Herald it gets a prominent run arising from an application to the Attorney General's Department for documents distributed to representatives of the internet industry during consultations in March on a proposal that would require ISPs to store certain internet activities of all Australians - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access. The application resulted in lots of black ink but not much else. All parties to the consultations have been sworn to secrecy. The SMH link provides access to what was released and the notice of decision.

The decision to refuse access to 90% of what was contained in the document was based on two exemptions- internal working documents (which requires consideration of public interest factors) and prejudice the effectiveness of methods or procedures to investigate breaches or evasions of the law, (which doesn't). Grubb's article and a wave of comment (180 and counting) that followed only refer to the former. It is not possible to judge from the statement of reasons the relative importance of each exemption and where reliance has been placed on one or the other to refuse access to a specific part of the document.

Grubb summarises the internal working document exemption and the public interest argument :
the Attorney-General's Department legal officer, FoI and Privacy Section, Claudia Hernandez, wrote in her decision that the release of some sections of the document "may lead to premature unnecessary debate and could potentially prejudice and impede government decision making". Hernandez said that the material in question related to information the department was "currently weighing up and evaluating in relation to competing considerations that may have a bearing on a particular course of action or decision". "More specifically, it is information concerning the development of government policy which has not been finalised, and there is a strong possibility that the policy will be amended prior to public consultation," she wrote.
Now this has been a favourite in some bureaucratic quarters for years (and not just with Sir Humphrey Appleby in Yes Minister) deriving as it did from observations by the then President of the Administrative Appeals Tribunal Justice Davies in Re Howard and Treasurer of the Commonwealth (1985) 3 AAR 169, 7 ALD 626 [177-178]. It's still just alive as a possible public interest against disclosure a result of observations in 2006 by High Court justices Heydon and Callinan and separately Hayne  in McKinnon v Treasury that didn't dismiss it out of hand, although it rarely crops up in AAT cases. (Victoria is another matter.)

Come 1 November and the commencement of the Freedom of Information Reform act, two new provisions should mean this line of argument has had its day. Among factors that the act says must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest are (b) access could result in any person misinterpreting or misunderstanding the document; and (d) access could result in confusion or unnecessary debate.(Shudder the thought: does this leave open "premature debate"?)

Second, the act lists as factors favouring access to a document in the public interest whether access would (a) promote the objects of this Act which include promoting representative democracy by contributing towards increasing public participation in Government processes, with a view to better-informed decision-making, and increasing scrutiny, discussion, comment and review of the Government’s activities; and (b) inform debate on a matter of public importance.

That should be enough to see the argument off although whether in this case 90% of the document could still be withheld on the basis of the other exemption, we just don't have anything to go on.  However we note sharing this stuff with the internet industry including presumably Google (more recently the subject of a very serious breach of the law finding by the Federal Privacy Commissioner) apparently poses no dangers to the effectiveness of methods for investigating breaches of the law.


  1. Anonymous10:48 am

    Oh dear
    each decision needs to relate to the documents at hand, and to the context in which the documents exist.
    To run the old, out of favour re Howard factor when the document itself notes " This paper does not represent the settled views of the Australian Government" etc is very weak.
    I'm surprised that a 'confidentiality' line wasn't also run given the "not for further ditribution" warning also on the document.

  2. Yes I agree, and with legislation proscribing this as a public interest already passed but yet to commence, you would think 'spirit and intent" would mean you wouldn't go down this path