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Tuesday, March 15, 2011

Public interest chestnuts and the impact of the amended FOI act

A decision in February by Senior Member Professor Creyke of the Administrative Appeals Tribunal in Gilligan and Australian Securities and Investment Commission [2011] AATA 104 reminds why some of us hope that aspects of the jurisprudence on the Freedom of Information Act  as it was before 1 November will be displaced by decisions of the Australian Information/ Freedom of information Commissioner, the AAT and the courts, in proceedings based on the law as amended from that date.

The case concerned parts of a document prepared in 2008 concerning the use of calculators or projections for the purpose of forecasting levels of individual’s superannuation savings. It formed part of a wider project to enable an accurate forecast of the likely balance of superannuation benefits of a person on retirement. The Tribunal accepted the document qualified as an internal working document (s 36) [23-29] A final decision on the substantive issue under consideration by ASIC was still to be announced at the time of the AAT decision.

The public interest considerations against disclosure discussed and accepted by the Tribunal were: 

  • Disclosure of the views of persons or bodies outside government could lead to their increased reluctance to participate in such consultations [38]. (Comment: It was entirely within ASIC's powers to choose who to talk to, and not to talk to Dr Milligan [55])
  • Disclosure of an evaluation of such views by the agency could inhibit ASIC’s ability in future to obtain such assistance [39]. To publish a possibly negative evaluation of the views expressed has the potential to damage relations with those stakeholders.That supports a public interest in non-disclosure of such an evaluation.[57]
  • Release of tentative views at an early stage of the decision making process is likely to be misleading [41].
  • The release of confidential advice on strategic matters would inhibit the candour between senior officers [42] particularly where this could generate ‘undesirable speculation as to the inner workings of Government in respect of matters that are of continuing significance’ [44]. On its own "this may not be a sufficient reason to deny disclosure on the ground of public interest. However, in the context of this case, combined with the argument about tentativeness, the balance shifts to non-disclosure. [46]
  • The views expressed in the document were tentative,  and release  could ‘create a misleading, perhaps unfair, impression in the minds of readers’ [47] Earlier drafts of later documents need not be disclosed [48] "It is hard to see what interest the public as a whole or a segment of it would have in knowing the ideas which were canvassed, but not necessarily adopted, along the way. In these circumstances, disclosure could not contribute to the public debate about what the government actually decides and, on balance, it would not be in the public interest to disclose the document." ]52] 
  • Disclosure would be likely to prejudice participation by stakeholders as it could inhibit frankness and candour in future pre-decisional communications. "This ground has not been accepted as sufficient on its own. In particular evidence is required that disclosure would have a dampening effect."[53]. But "as a matter of general knowledge, it can be accepted that individuals and organisations outside government would be less inclined to provide responses to informal soundings by government if their views are to be published, particularly if there are commercial reasons for non-disclosure." [54].  (Comment: fair enough on the last point unless there are compelling public interests in disclosure.)
  • Disclosure could inhibit the integrity and viability of decision-making within ASIC.[55].
Considerations such as the "substantial adverse impact on the willingness of staff of ASIC to express their tentative views in writing, and (the fact that disclosure) would not enable a reader to come to a conclusion about how these preliminary views fitted into ASIC’s more mature views as demonstrated in CP101 and CP122, much less its forthcoming final paper on the topic"[65-68] also contributed to a finding that disclosure would have have a substantial adverse effect on the proper and efficient conduct of the operations of the agency (s 40 (1)(d)) and was not in the public interest.

It's hard to find anywhere much weight given to public interest factors in favour of disclosure.

Post 1 November, changes to the act should impact the general approach taken in this case and some of these considerations. No relevant Commissioner, AAT or court decisions have been published so far. And Australian Information Guidelines referred to in the act are yet to be published.(Correction:They have been published-see Part 6) Both the exemptions cited in the case, under the amended act are conditional exemptions- documents in each category are to be released unless disclosure would be contrary to the public interest.

The relevant provisions are-
and as an instructor would say:

S 3 Objects--general 

(1)  The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
       (a)  requiring agencies to publish the information; and
       (b)  providing for a right of access to documents.
(2)  The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
       (a)  increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
       (b)  increasing scrutiny, discussion, comment and review of the Government's activities.
(3)  The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)  The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. 

S 11B Public interest exemptions--factors

(1)  This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2)  This section does not limit subsection 11A(5).
Factors favouring access
(3)  Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
      (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
       (b) inform debate on a matter of public importance;
       (c) promote effective oversight of public expenditure;
       (d) allow a person to access his or her own personal information.
Irrelevant factors
(4)  The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
       (a)  access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
              (aa)  access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
       (b)  access to the document could result in any person misinterpreting or misunderstanding the document;
       (c)  the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
       (d)  access to the document could result in confusion or unnecessary debate.
(5)  In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.

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