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Friday, November 06, 2015

Too much work involved in deciding whether you should see AG's appoinments diary and you can't see any of it, so there!

The Sydney Morning Herald and other media are enjoying the Freedom of Information battle in the Administrative Appeals Tribunal between the former Attorney General Mark Dreyfus and his successor Senator George Brandis over access to the current attorney's appointments diary for an eight month period in 2013-14.  

Me too when I sat through the three hour hearing in Sydney this morning.

But none of us enjoyed it more than Dreyfus.

Dreyfus QC who represented himself and giving the lie to that old maxim, a lawyer who does so has a fool for a client, had an enjoyable morning drawing on years of knowledge of  FOI law gained at the bar in his pre-parliament years and experience since in ministerial positions. Dreyfus was masterly in making submissions and putting Brandis Chief of Staff Paul O'Sullivan through the hoops. 

O'Sullivan by the way didn't seem to enjoy it at all. 

Paul Farrell in The Guardian provides a detailed report of proceedings.

The Tribunal is required to make the correct and preferable decision in light of O'Sullivan's determination to refuse to deal with the application because doing so would "substantially and unreasonably interfere with the performance of the Minister's functions."

Dreyfus argued that the Attorney General (well O'Sullivan in his name) had misconceived
what was required, exaggerating the time and resources involved by citing exemption considerations that were ill informed, and consultation requirements that went beyond what was required in order to justify a claim that hundreds of hours would be involved in dealing with the request in accordance with provisions of the FOI act. 

Dreyfus argued the approach was wrong and the estimated time involved way beyond what was realistic.

On a point that could if successful give new prominence to the importance of the objects of the act Dreyfus submitted that contrary to the approach taken by O'Sullivan in identifying every conceivable problem that stood in the way of granting access, the objects in Section 3 set out rights of access and agency obligations that overall dictated a different approach:
  • the act conferred a right to access documents,
  • Parliament's stated intention "was to promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities", and 
  • of particular relevance in this case, 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."
Another issue of interest in the case is the contention on behalf of the Attorney General that each of the almost two thousand entries in the diary are separate document Dreyfus argues on the basis of authority particularly a Victorian Court of Appeal decision that they consist of one document. 

Both parties acknowledge some entries in the diary are outside the scope of the FOI act because they do not relate to the affairs of an agency and are thus not 'Minister's documents' for the purpose of the FOI act.

In a telling admission of the 'horse and buggy' approach to dealing with FOI matters in the office of the minister responsible for the FOI act, O' Sullivan said redacting information from a requested document was complex and time consuming for the one officer trained in the task using the one computer that had the necessary software. Each redaction involved about 13 keyboard commands and took 5-10 minutes.That's after the very time consuming process O'Sullivan recounted in deciding if a name of someone in the appointments diary could reasonably be expected to give rise to a consultation or exemption requirement.

Software suppliers who have ready made answers should be knocking on O'Sullivan's door as we speak.

Justice Jago who reserved her decision expressed a degree of scepticism about whether the mere mention of the name of a person scheduled to meet the Attorney General touched off either consideration.

The bills before the Parliament to abolish the Office of Australian Information Commissioner and make other changes to FOI arrangements would see the Attorney General and his department responsible for government wide guidance on the interpretation of the FOI act and presumably for good practice standards in the stead of an independent statutory officer.

Surely the PM sees folly in this.


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