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Monday, December 03, 2012

Former PM's views urging government action no private communication

We don't yet know the name of the former prime minister who wrote to Prime Minister Gillard expressing views and suggesting action the government should take in response. But Australian Information Commissioner Professor John McMillan in Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31 decided the letters in 2010 and 2011 were not private communications. Release under the Freedom of Information Act would not involve unreasonable disclosure of personal information that on balance was contrary to the public interest, or negatively impact on the operations of the Australian Government.  

(Seems reasonable to me.In fact it might positively be in the public interest  that we know what other powerful people like media magnates and senior executives are saying when they have a quiet word, as Lord Leveson suggested-and Australian Press Council Chair Professor Julian Disney agreed.)

The name of the former prime minister was not published in the decision, pending any exercise of rights of review and appeal. Details of other signatories to one of the letters was outside the scope of the application. (Update: On 31 December Parnell reported that the former PM is Malcolm Fraser.) Extracts from the OAIC decision below:


  1. ...disclosure of the letters would identify the former Prime Minister as having expressed certain opinions to the current Prime Minister. The question is whether, in the circumstances, the letters were a private communication of views intended only for the Prime Minister. The decision‑maker on internal review seemed to reach this conclusion, holding that there was no expectation that the Prime Minister would convey the contents of the letters to others broadly. In contrast, the applicant submitted that former Prime Ministers writing to the current Prime Minister would have little expectation of privacy.
  2. A letter between a former and a current Prime Minister could, depending on the contents and the circumstances, be a private communication or an expression of opinion that might as readily be conveyed in a more public manner. In my view, the 2010 and 2011 letters were not private communications; they expressed opinions on issues of public policy that are commonly discussed in the public arena, including by former Ministers. This distinguishes them from the opinions about an individual's suitability for professional advancement provided to the NSW Bar Association in Smallbone. Nothing in the opinions, the supporting arguments or the expression contained in the letters in this case would make them unsuitable to be a contribution to public debate. It would be surprising if the former Prime Minister confined the expression of his opinions on these important public matters to a private communication for the consideration of the Prime Minister alone. Nor is there anything in the letters or in the context which would have indicated to the Prime Minister that representations were being made to her privately and that the existence of this communication from a former Prime Minister should not be revealed to others.
  3. The other basis for the access refusal decision at internal review was that release of the documents under the FOI Act could ‘hinder the Prime Minister's relationship with former Prime Ministers' and ‘deter former Prime Ministers from providing their personal views in writing to the Prime Minister, thereby impeding the Prime Minister's ability to have the benefit of their views which, in turn, could negatively impact on the operations of the Australian Government.' The applicant submitted that, as former Prime Ministers' views have the potential to influence the operations of the Australian Government, they ought to be disclosed and scrutinised.
  4. The weight to be attached to this consideration will again depend on the content and circumstances of the communication. Former ministers can provide an important source of advice and expertise to the Australian Government. They may be able to offer serving ministers a unique perspective on affairs of state derived from their own experience in high office. It should be open to a senior minister to consult a former minister to obtain advice based on their experience. Assurance of non‑disclosure may be reasonable in these circumstances to allow the former minister to give the current minister the full benefit of his or her insights. Similarly, it may be desirable for a former minister to be able to approach a current minister to convey confidential advice that will be received personally or that will be restricted in circulation.
  5. However, having found that the letters were not intended for the Prime Minister alone, for similar reasons I conclude that they do not constitute confidential advice on affairs of state from a former to a current minister based on the former Prime Minister's experience in public office. It has not been suggested that the letters were written in response to an invitation from the current Prime Minister to the former Prime Minister. Neither letter discloses that the views expressed draw upon experience gained by the former Prime Minister during his time in public office. Indeed, the 2010 letter was co‑signed by a number of other prominent Australians who shared the former Prime Minister's views without sharing his experience as a senior minister. The reasons which may in some circumstances make it unreasonable to disclose correspondence between current and former ministers do not apply in this case.
  6. The claim for exemption did not focus on the content of the letters. It was placed at the level of principle: that the privacy of all communications between current and former Prime Ministers should be protected. However, the FOI Act enacted by the Parliament of Australia applies not only to documents generated by government, but to correspondence sent to ministers from people outside government, including former officeholders in government. A presumption of openness permeates the FOI Act, particularly since the amendments to the Act in 2010. This is widely known and understood both inside and outside government. The internal review decision referred to a letter of 30 April 2009 from the then Cabinet Secretary, Senator the Hon John Faulkner to departmental secretaries and agency heads, which emphasised that the starting point for considering FOI requests should be a presumption in favour of giving access to documents. A blanket approach which assumes that all communications from former to current Prime Ministers will be exempt from disclosure under the FOI Act, regardless of their content or the context, is incompatible with the culture of disclosure which the FOI Act is intended to promote....
  1. .............I need go no further than to note that both letters deal with matters of broad public interest that are commonly discussed in the public arena. In my view, it would not be a matter of surprise that the former Prime Minister held opinions on these issues and chose to communicate these opinions to the present government.
  2. I conclude that, in all the circumstances, the disclosure under the FOI Act of the 2010 and 2011 letters signed by the former Prime Minister would not be unreasonable. The letters are therefore not conditionally exempt under s 47F and in compliance with s 11A(3) they must be given to the applicant in full, with the exception of the names and signatures of the other signatories to the 2010 letter, which were not within the revised scope of the applicant's FOI request.

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