PM's office draws a legal shade on sunshine

Ceridwen [CC-BY-SA-2.0] Wikimedia Commons

FOI Editor at The Australian, Sean Parnell wrote over the break about the two decisions handed down (in Christmas week) by Australian Information Commissioner Professor John McMillan, upholding decisions on behalf of the Prime Minister to refuse access to documents because they were outside the scope of the Freedom of Information Act.

The issue in both cases was whether documents requested by Parnell were "official documents of a Minister."( Freedom of Information Act (s 4). The commissioner found that a letter sent in September 2010 by Emily's List, a Labor Party advocacy group which counts the Prime Minister as a member, congratulating her on her election victory, and separately, a list of the meetings and conference commitments of the Prime Minister at an ALP national conference, did not relate to the affairs of a government agency, an essential component of the definition, and therefore were not subject to the FOI act.

Parnell argued in both cases that the documents involved contact with people seeking to influence government decision making that should, in the interests of transparency, be disclosed. But as the commissioner observed

Whether there is a public interest in greater transparency surrounding contact between elected political leaders and business or community representatives is not the issue to be resolved in this IC review. That is a debate for another forum.

Hopefully an issue for the review of the Commonwealth act towards the end of the year, and for anytime anyone shows an interest in our weak lobbying laws that should require some disclosures about lobbying activity.

 Section 4(1) of the Commonwealth FOI act defines ‘official document of a Minister' as ‘a document that is in the possession of a Minister ... in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State'. (Most of the state FOI acts from memory, contain something similar except NSW where the law makes no reference to "affairs of an agency." The Government Information (Public Access) Act  extends to information held by a minister or member of the minister's personal staff "in the course of the exercise of official functions in, or for any official purpose of, or for the use of, the office of Minister of the Crown" (Schedule 4 Clause 11).

In Parnell and Prime Minister of Australia [2011] AICmr 10 the only document in contention was a letter sent in September 2010 from Emily's List congratulating the Prime Minister on her election. The commissioner summarised [12]:

The letter: outlines the assistance that EMILY's List Australia provided to women ALP candidates during the 2010 election campaign; made proposals as to how the Prime Minister could support the organisation; briefly commented on the alignment between research undertaken by the organisation on a particular topic and the announced policies of major political parties including the ALP; and attached a similar letter sent to the National Secretary of the ALP. The letter to the Prime Minister does not refer to any particular department or agency of the Australian Government, nor to any specific legislation or program administered by the Australian Government.

(In his application to the Prime Minister's Office Parnell also sought access to similar letters from the Catholic Church, Anglican Church, Uniting Church, Presbyterian Church, Baptist Church, Lutheran Church, Australian Christian Churches, Hillsong, Exclusive Brethren, Islamic Association of Australia and Australian Federation of Islamic Councils. Two relevant letters from ‘church organisations' were located. The Office denied access to both letters: one on the basis that it was exempt under s 47G (business affairs), and the other under s 47F (personal privacy). Parnell didn't challenge those decisions but those refusals might have raised interesting issues as well.)

The commissioner referred to his own published guidelines issued under s 93A of the FOI Act to which regard must be had by those performing a function or exercising a power under the FOI Act  [2.17]:

The term [‘official document of a Minister'] does not extend to the personal documents of a minister or the minister's staff, documents of a party political nature, or documents held in the minister's capacity as a local member of parliament unless the correspondence concerns an agency within the minister's portfolio.

Parnell argued:

The decision-maker has wrongly taken the view that [the letter from EMILY's List Australia] is not an ‘official document of a Minister' under the Act. Given the organisation actively lobbied the Prime Minister during the election campaign on several issues, and briefed her advisers, and that the Prime Minister can use her position to bring affect to requested policy changes and the like, this is clearly an ‘official document of a Minister' under the Act. The Prime Minister is also a member of the organisation and has spoken in support of it in the past. If a company, organisation or individual lobbies a government or minister on an issue related to their portfolio responsibilities, and especially if those parties have a relationship, that correspondence must be made public in the interests of transparency of decision-making.

The commissioner reasoned:

13. The responsibilities of the Prime Minister are broad and extend potentially to all the nation's affairs, including the affairs of each agency or Department of the Australian Government. It is likely that most correspondence to the Prime Minister (as could be said of the letter in this case) is crafted directly or indirectly to influence the way that the Prime Minister approaches the task of governing the nation. That line of reasoning, unless balanced against other considerations, could lead to the conclusion that all correspondence to the Prime Minister, except letters of a purely private and personal nature, could be classified as ‘official documents' of the Prime Minister for FOI purposes.

14. However, I do not believe that ss 4(1) and 11(1)(b) of the FOI Act are to be applied in that way. The sections place a boundary on the documents in the possession of a Minister that are subject to the FOI Act. Further, I believe that the distinctions drawn in [2.17] of the Guidelines (quoted earlier) correctly chart that boundary. The particular distinction that is relevant to this case is between the official portfolio responsibilities of a Minister and a Minister's activities as a member of a political party who has been elected to the Parliament. A similar approach was adopted by the Administrative Appeals Tribunal in Re Michael Nassib Said and John Dawkins, MP (1993) 30 ALD 242.

15. In my view, the letter in this case relates to the activities of the Prime Minister as the leader of a political party that has been elected to government. The letter does not relate ‘to the affairs of an agency or of a Department of State'. It is not therefore a document that is an ‘official document of a Minister' to which the FOI Act applies.

In Parnell and Prime Minister of Australia (No 2) [2011]AICmr 12, Parnell had sought access to

.. diary entries, correspondence and other documents held by the Prime Minister's Office and detailing who Julia Gillard was asked to meet, and then met, as part of Labor Party business observer programs run in conjunction with state and federal Labor party conferences in 2008, 2009 and 2010.

The relevant documents held by the office were "a diary record on ALP letterhead that briefly lists the meetings and conference commitments of the Prime Minister for three days. That document lists the time of each meeting, the name of the other party and the organisation to which the person presumably belonged. The other three documents are printouts from an electronic diary and record the same details."

Parnell submitted that the document was an official document of a minister for a number of reasons including that "a connection exists between the ALP business observer programs and the affairs of Australian Government agencies, as those participating in these programs are likely to do so in order to communicate views to the Prime Minister that are relevant to government policies or programs," and access had been granted to similar documents under access to information legislation in Western Australia and Queensland.

The commissioner concluded:

 14.....There is nothing in those documents that relate to the affairs of any Australian Government agency. It is speculative whether the affairs of Australian Government agencies were discussed by the Prime Minister at the business observer program meetings. However, it may be that that did not occur and that the discussion was confined to other issues, such as the affairs of the ALP conference that was being held at the same time. 15. The documents do not indicate what was discussed, why a meeting was arranged, and indeed whether the meeting went ahead and who attended. There is nothing in the content of the documents that characterise them as official documents of a minister under the FOI Act