The Tribunal gives Government a drubbing: "National Cabinet is no cabinet committee "

The decision in the Administrative Appeals Tribunal by Justice White rejecting arguments that documents concerning the operation of the "National Cabinet' are exempt as cabinet documents cheered up those among us who keep lamenting the decline in  transparency.Thanks to Senator Rex Patrick, something to cheer about, the first in a long time for years.

The matter took a year to get to this stage (speedy compared to delays some of us are enduring in a queue at the Office of Australian Information Commissioner) and it may not be over yet. The Secretary of the Department of Prime Minister and Cabinet is considering an appeal to the Federal Court.

There's no reason to think the Australian Government Solicitor who ran the case for exemption didn't put their best case forward, or were rushed and caught off guard in marshaling evidence in support, but it fell way short. I canvassed some of the problems the Government faced last year. By the look of it AGS didn't have much to play with in addressing them before the AAT.

Decision

On the cabinet exemption issue Justice White concluded

Having addressed several matters bearing on the question of whether the National Cabinet is a committee of the Cabinet, I have then sought to consider their collective effect. In my view, taken together they point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression. At the very least, I am satisfied that the respondent has not discharged the onus of establishing that Mr Hupalo’s decisions about these matters were justified or that the Tribunal should give a decision which is adverse to the applicant. [210}

Professor Anne Twomey has a good piece on The Conversation about the decision and its consequences. 

The evidence and contentions

In his decision Justice White was measured but scathing in observations about the evidence put forward and the contentions on behalf of the Secretary of the Department of Prime Minister and Cabinet in arguing the case for a finding the documents were exempt.

It's a real drubbing, both on the cabinet document claim and a claim made for the first time when the matter reached the AAT that disclosure of minutes of a meeting in March 2020 would damage relations with the states.

Not for the faint hearted, but here's (a selection of) what Justice White said about the case put for the cabinet document claim (emphasis added):

Senator Patrick chalks up important FOI win

He''s a vigilant determined defender of the spirit and intent of freedom of information.

May the wind be at his back!

In the Senate on Tuesday Senator Rex Patrick recounted a drawn out and eventually unsuccessful attempt by the Department of Prime Minister to deny access to the complete performance audit report into the handling of a $1.3 billion dollar Defence contract for the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd. 

The government had refused to table the complete report in response to a Senate Order; Attorney General Porter issued a (rare?unprecedented?) certificate under the Auditor General's Act preventing disclosure of parts of the report on public interest grounds; and various FOI exemption claims, some dropped on the way, were advanced on this journey to the Administrative Appeals Tribunal.

Deputy President Britten-Jones concluded no additional harm to national security or Thales commercial interests would result from disclosure, given information already in the public domain in a redacted version of the report, and information made available by Thales when it commenced Federal Court proceedings in January 2018. 

The Deputy President[ 70-78] was dismissive of another claim that the Auditor General's analysis and conclusions involved deliberative processes: "Rather than disclosing a deliberative process, the Redacted Report discloses a final conclusion based on an analysis of factual findings.....Section 47C does not operate to disallow access to a report of this nature generated by an independent officer of the Parliament exercising his statutory functions. The Disputed Material is not conditionally exempt under s 47C(1) of the FOI Act."

Senator Patrick posted the report and relevant documentation following notification the decision will not be appealed, observing

"In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”

Indeed.

Senator Patrick in the Senate 2 February

Guardian Australia argues the FOI case: boat turnbacks don't involve security

Paul Farrell of Guardian Australia was not only busy on the Nauru files in recent weeks , he's also been a very interested party in the challenge in the Administrative Appeals Tribunal to refusal of his Freedom of information application for documents about boat turnbacks.
 

We will have to wait until the AAT decision for the detail but among a number of issues the case is testing is the meaning of “security of the Commonwealth” in the FOI act. According to this report

"Farrell’s barrister pushed the point that “national security” was not relevant for operations that were unlawful and the government’s incursions into Indonesian waters, which were covered in some of these logs, were unlawful in his view."

Guardian Australia’s barrister Tom Brennan told the hearing:

“Security in the Asio act goes beyond that which is dealt within the FoI act, because it’s not limited to the security of the body politic. It’s directed also to the security of people.“There can be no doubt that people-smuggling activities are a matter of significant public interest … they are not in my submissions ones that rise as high as touching the security of the commonwealth.”

According to the report Major General Bottrell, Commander of Operation Sovereign Borders testified

“Our greatest asset now is the scepticism of the potentially illegal immigrants..” “Much of our effort is aimed at educating people sitting there, that people smugglers are convincing to get on boats.”People smugglers would use the information about turnbacks to inform asylum seekers about how close they had got in their previous attempts to reach Australia. “Our efforts are to educate them about the dangers of that journey.” Bottrell argued that hiding this information from the public and from people smugglers was essential as part of that education effort.

"Security of the Commonwealth"
The exemption relied upon according to these reports (there may be others) is Section 33(a)(i) of the FOI Act: “A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to: (i) the security of the Commonwealth...

The exemption is absolute- there is no weighing of public interest or other considerations that might favour disclosure. 

The meaning of terms used in the exemption received the usual thorough analysis recently from AAT Deputy President Forgie in Prinn and Department of Defence. [58-96] citing many precedents from court decisions but none that appear directly to address the argument reportedly advanced by Tom Brennan.

Guidelines issued by Australian Information Commissioner
Also of interest in the Prinn case [47-57] Deputy President Forgie parted company with Senior Member Popple (as she had last December in Wood) who most recently in Jones said

"The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary."

Deputy President Forgie:

53. I agree that they are not binding but I disagree that decision-makers, including this Tribunal, “should” apply the Guidelines. The obligation is to have “regard” to them i.e. “... to take into account; consider. ...”.[35] It is not to “apply” them i.e. “... bring to bear, put into practical operation, as a principle, rule, law, etc ...”.[36] Regard can only be had to them if they are made lawfully i.e. within the scope of the power conferred by s 93A and consistently with the FOI Act. Decision-makers cannot be required to have regard to the Guidelines in so far as they relate to the interpretation of the FOI Act. Section 93A(2) limits the power to issue Guidelines for the purposes of the performance of a function or the exercise of a power under that legislation. For those purposes, regard must be had to them and there can be no doubt about that. A modern statement of the importance of guidelines of this sort has been made in Plaintiff M64, to which I have referred at [50] above.

Vietnam vet with a good cause enters difficult territory with broad FOI applications

In Q&A on ABC last night questions were raised about government policy regarding veterans pensions, drawing acknowledgement from panelists including former Deputy Prime Minister Tim Fisher that more has to be done to get things right. 

As reported in The Australian Vietnam veteran Don Tate also "questioned the faith Australians could place in accounts of the nation’s military history. He claimed a number of omissions by The Australian War Memorial, including the existence of one platoon he fought in, had led to further stress over the subsequent years."

Private Don Tate, Vietnam-ABC 7.30 Report

Mr Tate referred to Administrative Appeals Tribunal Freedom of Information proceedings in which the Australian War Memorial refused him access to information sought about the "D&E Platoon” in which he served, and claims by others in the light of the secrecy that he had lied about his participation in the Vietnam War.

The decision he referred to is Tate and Director Australian War Memorial [2015] AATA 107
handed down by Deputy President Tamberlin in February. 

The Tribunal upheld the agency decision that the work involved in dealing with two applications by Mr Tate would involve substantial and unreasonable diversion of resources. The evidence was that one application would require at least 150 hours of processing time after taking into account the work involved in producing 90 documents already furnished to the Applicant and at least 48 hours for the second application.

(The issue about the D&E platoon seems to be whether it existed as a discrete unit. It has been widely canvassed previously.)

I'm sympathetic to Mr Tate's cause, the more so as he represented himself in the case, up against the Australian Government Solicitor's office, but the Tribunal decision on substantial and unreasonable diversion of resources appears sound. 

All inclusive applications unbounded by time periods such as these (see below) will always raise the substantial and unreasonable diversion of resources question. Mr Tate declined the opportunity to narrow his applications other than exclude his own correspondence when properly consulted about ways the requests might be revised in an attempt to remove the practical refusal reason.

The FOI act (s 24AA (3)) provides that in deciding such matters no regard is to be had to any reasons that the applicant gives for requesting access so Mr Tate's submissions in this regard were not considered.

Here are examples of how to run into difficulty if FOI requests are framed in the broadest catch all terms, difficulties that arise even before the agency dives into the exemption provisions:

The time and cost equation for AAT review of FOI matters

Jonathon Holmes in The Age yesterday bought the line that merits review by the AAT will help journalists obtain FOI access, in the words of ABC FOI Editor Michael McKinnon, more quickly, and more fairly. 

"We’re journalists, not historians. We need to know now” said McKinnon in drawing attention to the long and unacceptable delay in FOI review matters at the OAIC.

The Administrative Appeals Tribunal timeline may prove better than some achieved by the underfunded OAIC. After all $1.8m over four years, the sort of money the OAIC never saw, will be transferred to the Tribunal to assist with the processing of FOI reviews.

Will the "need to know now" cause get a boost in the coming new/old era with agencies reaching the correct decision more often and with fulsome embrace of spirit and intent of the legislation? You're more of an optimist than me if you think so given the absence of an FOI champion to maintain the effort to move culture change in the right direction, something that disappears with the abolition of the OAIC from 1 January 2015, and with AGD providing 'guidance' on the interpretation of the act.

 With a long or short queue, AAT processes aren't likely to be speedy in any event.

According to the AAT's 2012-13 Annual Report (a period when it had a limited FOI role) the tribunal's overall caseload performance target was 85% of matters to have their first conference within 13 weeks, and 60% of matters to progress to hearing within 40 weeks. (Table 3.8) 

The performance measures in the 2014--15 Portfolio Budget Statement are 75% of applications finalised by the AAT within 12 months of lodgement, 80% of matters finalised without a hearing.

Then there's the cost. According to the AAT in 2012-13 the cost (to the taxpayer) per matter that went all the way to an AAT decision was $16, 641.

The costs incurred in an AAT FOI review by the applicant who will be up for $816 (and due to rise by CPI on 1 July) for starters from 1 January, and the government agency involved in a matter is unknown.

 But some information about AAT costs generally is contained in the Draft Productivity Commission Report on Access to Justice. The mean cost to a party that brought proceedings regarding workplace compensation was just under $20,000 (median around $15 000). On the other side according to Comcare its average costs per case were $15,500 when matters were withdrawn, $23 000 when matters were resolved by consent, and $48,000 in matters that went to hearing.

Halve, quarter it for FOI if you like.

But  in time and cost the new FOI 'efficiencies' much loved by Attorney General Brandis are going to take a while for those who 'need to know now' or give or take in six months or so, and to cost the taxpayer and the citizen a pretty penny as well.

PM's diary messy enough to preclude disclosure

Wilcox-SMH

Anne Davies in Fairfax papers "Push for Gillard to reveal meetings" reports on the decision by Australian Information Commissioner Professor John McMillan to uphold refusal of her two Freedom of Information applications for diary entries of prime ministers Rudd and Gillard for 'practical refusal reasons'. In one instance because dealing with the request would substantially and unreasonably divert the resources of the Department from its other operations; in the other, because it would substantially and unreasonably interfere with the Prime Minister's functions.

Each Davies' request was for entries for one month, excluding personal appointments. It turns out that the electronic diaries are a mixture of official, party and personal engagements. The amount of detail in each entry varies, some containing only a name, phone number, and no detail of the nature of the activity or the capacity in which a person was scheduled to meet the Prime Minister. As the commissioner said "It is apparent that neither diary was prepared for public release." The PM Gillard document contains around 500 entries. The guesstimate of time needed to sort through and reach a decision on disclosure,163 working hours or just over 4 weeks.

In another decision Professor McMillan decided against the Office of the Prime Minister, ruling that the processing of an FOI request by Paul Fletcher MP for diary entries for PM Gillard's meetings with crossbench MPs over a 12 month period would not substantially and unreasonably interfere with the Prime Minister's functions because it would likely take less than 8 hours:

I am not satisfied that a practical refusal reason exists in this case to deny Mr Fletcher's request. For the reasons given, I doubt that the task will be as time-consuming as the Department has submitted. Lest I be wrong, and it will take 8 hours and 20 minutes to peruse the diary, plus additional time to reach a decision, I am not satisfied that the Office of the Prime Minister has discharged the onus of establishing that this would constitute a substantial and unreasonable interference with the Prime Minister's functions.

Professor McMillan suggests in Davies [45] that while not required to keep a diary of appointments or publish details, "ministers (or the Government) take a more active stance by proactively publishing a greater level of detail than at present about ministerial appointments and meetings."

Behind the game
Of course they should. Who gets to bend the ear of those at the top of the tree should be disclosed unless there are particular personal, (rare) business or security related reasons for non-disclosure. And published routinely, as Professor McMillan points out is the case with President Obama and Queensland Premier Newman. 

Then the even better precedent, "Who ministers are meeting" with details of ministerial meetings with outside organizations, hospitality, gifts and overseas travel for British Prime Minister David Cameron and the entire ministry. 

It all makes the published PM's schedule here look puny and inadequate by comparison.

The UK Government initiative to publish followed revelations during the News of the World scandal about access enjoyed but not publicised over the years by Rupert Murdoch.

(Public -or at least Fairfax readers-opinion: 65% in favour.)

Messy diaries take a long time to brush up
The Davies decision includes pages of consideration of issues concerning what can be taken into account in deciding what constitutes substantial and unreasonable diversion of resources: the resources that would be used in identifying, locating and collating documents; deciding whether to grant, refuse or defer access; consulting with other parties; redacting exempt material from documents; making copies of documents; and notifying an interim or final decision to an applicant. 

And of course if the record is as messy to start with as is the case with the PM's electronic diary, it's obviously going to take ages, and ages. Well something like 163 hours for each month of entries. More than enough to get into substantial diversion of resources territory. Watch out if the OAIC recommendation to the Hawke review, supported almost uniformly by agencies, comes to pass that 40 hours should be the capped limit on time spent responding to an FOI application.

Minister's document
Another issue [12-22] thrown up in the Fletcher decision is the application of the FOI act to a minister's documents. 'Official document of the Minister' is defined in s 4 as a document that is in a Minister's possession and 'that relates to the affairs of an agency or of a Department of State'.  Room for argy-bargy here as the Office of the Prime Minister demonstrated.

The office argued that entries relevant to the agreement with The Greens and independents on forming government were outside scope because the agreements were entered into by Ms Gillard as leader of the ALP, not as a minister. Professor McMillan rejected that, but it remains to be seen whether there is a further argument concerning some entries because they may not relate to the affairs of an agency or of a Department of State' despite Professor McMillan saying:

That phrase should be understood broadly as encompassing any matter that could be the subject of a Government action or decision, of legislation introduced into the Parliament by a Government minister, or that falls within the portfolio responsibility of a minister.

No mention in the decision of The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 where Judge Jenkins ruled that the diary of Victorian Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier, that many entries in a sample provided to the Tribunal related "to the affairs of an agency" even where they did not directly concern departmental business. The range of entries that Judge Jenkins found would qualify for release (subject to any exemption claim) include:

• (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
• (b) interaction with public servants, both with and without the Premier;
• (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
• (d) attendances involving foreign dignitaries, including politicians and diplomats;
• (e) other entries which may record events, whether or not attended by the Chief of Staff; and
• (f) entries in the nature of descriptions, observations or outcomes.
•  
•  

Last August this decision was reportedly off on appeal but I haven't heard of it since.

Argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted (emphasis added and attention Dr Hawke):

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpufBritish Prime Minister David Cameron
 

Public broadcasters FOI exemption brought back to where parliament intended

The Administrative Appeals Tribunal decision in Australian Broadcasting Corporation and Herald and Weekly Times [2012] AATA 914 sparked media interest in a slow news period with this headline suggesting the decision could result in a peek into Tony Jones pay packet, among other closely guarded gems held by the ABC.

The Tribunal upheld two decisions of Freedom of Information Commissioner Popple that hardly rated a mention at the time that bring the ABC back closer to the real world in use and application of the exemption the public broadcasters enjoy from the act in respect of  documents in relation to program material and datacasting content.

The ABC argued unsuccessfully that documents relating to the classification of ABC television programs and others relating to salaries and other payments made to program makers engaged on 13 ABC television and radio programs (I don't think Tony Jones was included) were exempt either because they are documents which are “program material” or are documents “in relation to program material.”

President Kerr and Senior Member Britton were faced with Federal Court precedents difficult to reconcile: Bennett J in Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209  and the Full Court in Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 but worked their way through to a reasonable and sensible result.

Given the clumsy wording of the relevant provisions in the act and room for argument about what the terms mean that lawyers could seize upon, I imagine the ABC will consider an appeal on error of law grounds despite the fact that the Tribunal decision seems in line with parliament's intentions way back in 1981 in seeking to afford protection to program material. It is a welcome reset of lines of exemption extended by the UTS decision and well utilised by the ABC in the seven years since.

Another bone of potential contentious legal argument, although I think the Tribunal was right again, is the significance attached to the objects section [72-74] in interpreting relevant provisions, somewhat in contrast to the recent Federal Court decision in the Kline case.

Alternatively or in addition the ABC might swing into action arguing for legislative change? 

No submission from the ABC to the Hawke review has been published so far but they along with SBS and APN did not join other media coalition colleagues in their joint submission. SBS which is afforded the same exemption as the ABC lodged a submission obviously prepared before the Tribunal decision was handed down, cutely suggesting they take comfort from the fact that the exemption is not part of the terms of reference ("operation of the act" seems to cover the whole shebang, to me at least), but suggesting in any event the FOI exemption for public broadcasters in Canada might be a better form of words. 

Four years ago ABC Managing Director Mark Scott showed a glimmer of interest in the context of the FOI reforms being floated at that time, in negotiating a modification narrowing the special exemption, but the glimmer hasn't been sighted since. The Tribunal decision if it stands is a workable torchlight.

As to the decision regarding the scope and interpretation and application of the exemption:

Corby FOI decision not as exciting as media reports suggest

The two mainstream media reports of a freedom of information decision by Deputy President Hack in the Administrative Appeals Tribunal suggest a large number of previously withheld documents are to be forced out of the hands of the Australian Federal Police: Eamon Duff in The Sydney Morning Herald "Corby granted access to case files" writes the decision paves the way "for reams" of new documents to be released. Jared Owens in The Australian "Schapelle Corby wins access to police records" reports Ms Corby won access to "a slew" of new Australian Federal Police records detailing the agency's dealings with Indonesian authorities at the time of her arrest. 

Not sure if Duff and Owens spent much time reading the decision, or whether they accepted someone's wishful thinking about the outcome, and hate to disappoint Corby supporters or others interested, but it was no big deal either in quantity or (to this casual observer of things Corby) the potential significance of the released documents.

Deputy President Hack decided to grant access to two documents, nine pages of another and additional parts of two other documents previously withheld. The Deputy President notes [6] a "good many" of the relevant documents sought had been released in full by the AFP in determining the application. More documents or parts of documents had been released during pre-hearing stages in the Tribunal [8]. 

In most respects Deputy President Hack affirmed the AFP decisions to deny access. The law applicable was the pre-reform Commonwealth FOI act as it stood prior to November 2010. It's largely a safe conservative decision, much of it devoted to dealing with 19 documents that  the AFP "wrongly, and too generously" listed as relevant despite the fact they do not answer the request [23]. 

Several of the claims by the AFP were faintly ridiculous as outlined below. But for the rest the AFP not Ms Corby had the win. When the penny drops expect more of this from Corby supporters. It's no conspiracy, just FOI-land.

Drawing from the published decision, the documents to be disclosed are:

Tribunals not courts, but if it looks like....

You may have been thinking I got to 2500 posts and dropped by the wayside. 

Or off the perch. Not quite.

I've been busy with other things including representing an applicant in a Government Information (Public Access) Act review in the NSW Administrative Decisions Tribunal. That  involved a few visits to John Maddison Tower in Goulburn St where the Tribunal has been located since moving south from long time digs in Elizabeth St in October last year. The former home was in an office block near Sydney's heavyweight legal precinct. The John Maddison Tower and the Downing Centre next door are court buildings in the next tier, with John Maddison home to the District Court including the civil registry and several floors of courtrooms, the Federal Magistrates Court and the Chief Industrial Magistrates Court. These days with the ADT, the Dust Diseases Tribunal, and the Medical Tribunal for company making it a mix of parts of both the executive and judicial branches of government.

Citizens jostling with barristers and solicitors passing through the security check as they enter on the ground floor, and who consult the day's tribunal listings in the foyer affixed to a notice board headed "District Court" may find this a somewhat intimidating, heavily legal environment.

Schapelle Corby on a point of order

ABC TV

The details of the Freedom of Information application and the documents in dispute are not clear but Schapelle Corby is contesting a decision by the Australian Federal Police to deny access to some documents claimed exempt on grounds relating to the security, defence or international relations of the Commonwealth. The Administrative Appeals Tribunal in what might be the first published decision on the interpretation of amendments that came into effect in November 2010, was asked to rule on procedure arising from the requirement in s 60A:

Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence

The legal representative of the AFP, and the Inspector-General submitted that the section compels a second hearing if the Tribunal is minded to release documents after a first hearing. President Justice Downes and Deputy President Handley noted that a second hearing would "amount to an unusual, even unique, process" and

6. ....create a number of problems. First, after a first hearing, the Tribunal would receive submissions on the documents and evidence before it at that time. The submissions to be put by an applicant would have to address that state of affairs. It is at least possible that such submissions might be compromised at the time of a further hearing, after further evidence from the Inspector-General, which affected the state of the evidence.
7. Other practical problems arise. Is the respondent to be given a further opportunity to put on evidence after the Inspector-General? Is the applicant to be given a further opportunity to put on evidence after the Inspector-General? The rules of procedural fairness would almost certainly ensure that at least the applicant should be entitled to put on further evidence and make further submissions. There is also the unusual fact that, before the Inspector-General was invited to give evidence, the Tribunal would be required, on the case put by the Australian Federal Police and the Inspector-General, at least on a preliminary basis, to form a view that the documents should be released. It is not the habit of courts or tribunals in Australia to release draft decisions and then invite further submissions, yet de facto that is what is being suggested here.

The Tribunal found nothing in s 60A that compelled the “two hearing approach.”

"It seems to us that the Tribunal, at any time that seems appropriate to the Tribunal, can make a request under s 60A, and the steps that s 60A require will come into play."[18] 

No orders were issued, and the Tribunal suggested ways in which the matter could proceed to hearing likely to be in late February or March, when more about the documents in dispute will be revealed.

(Update-there is quite a Corby related FOI queue at Customs and the AFP)

FOI search processes short of exemplary

The Department of Immigration and Citizenship is always under FOI pressure, with a continuing large stream of applications, so the department may take some momentary comfort from this Administrative Appeals Tribunal ruling that all reasonable steps had been taken to identify relevant documents in a Freedom of Information case. Until it gets to the last paragraph of the decision where Member Webb comments about the processes that led to discovery of additional documents well after the initial search of the four relevant (of 138!) departmental systems:

34. Before concluding it remains to observe that the manner of the Department’s response to Mr Zhang’s request, and the thoroughness of the initial searches that were conducted, is less than exemplary. One can understand Mr Zhang’s frustration at the initial results he obtained from the Department. No good reason has been advanced why only one file was identified in the initial searches that were conducted. Similarly, no reasonable explanation has been provided why the subsequent searches conducted by Ms Selvadoss and others in the Freedom of Information Access Team failed to identify documents that were within the Department’s ExecCorro system. These are matters of concern for the Department to consider in relation to the management of its obligations and responsibilities under the Act. It should not be necessary for a dispute under the Act to come before the Tribunal before adequate searches are conducted.

Three years ago, then Ombudsman Professor McMillan made some observations about systemic problems in FOI processing in the department.

Advice on tobacco plain packaging legally privileged

In a matter separate from the British Tobacco case recently heard in the Federal Court where privilege was also an issue, Phillip Morris Limited failed in a bid to access documents held by the Prime Minister containing legal advice concerning the plain cigarette packaging legislative initiative. In Phillip Morris Limited and Prime Minister [2011] AATA 565 the issue before Administrative Appeals Tribunal Deputy President Forgie was the decision by a delegate of the Prime Minister to refuse access to five emails and attachments that contained legal advice requested by the Department of Health and Ageing and prepared by Australian Government Solicitors' in 2010 that included advice from Department of Foreign Affairs officers on aspects of international and trade law. The matter was decided on the basis of the law as it stood prior to November 2010.

In a whopping 261 paragraphs (357 footnotes) Deputy President Forgie left no word not parsed or relevant precedent unexamined as she analysed and applied the law regarding legal professional privilege (s 42). One interesting aspect was confirmation that the absence of a practicing certificate was not an impediment to a privilege claim-one of those responsible for part of the DFAT advice held an LLB from the University of Sydney but had not been admitted to practise in any capacity as a legal practitioner[86-100].

Deputy President Forgie concluded:

the DFAT advice and AGS advice are subject to legal professional privilege, I am satisfied that their disclosure under the FOI Act would be contrary to the public interest. As the privilege has not been waived, the doctrine of legal professional privilege has already determined that disclosure is contrary to the public interest. The public interest is that in the administration of justice that comes from the encouragement of full and frank disclosure by clients to their lawyers [252].

Counsel for the Prime Minister had argued in the alternative that the documents were exempt as deliberative process documents under s 36. Deputy President Forgie proceeded to examine this claim on the assumption that they were not protected by legal privilege. While finding that the documents contained advice and opinion developed in the course of decision making functions, thus satisfying s 36(1)(a), she was not satisfied that disclosure would be contrary to the public interest. For the second time in a week the Tribunal rejected this type of claim because of the absence of evidence-in this case that disclosure would tend to inhibit confidential communications in future, or inhibit their being recorded:

AAT subjects "cabinet confidentiality" to rare scrutiny

In McKinnon and Department of Finance and Deregulation [2011] AATA 469 the Administrative Appeals Tribunal (Deputy President Hack SC and Dr Hughson) overturned the department's decision on a Freedom of Information Act application to refuse access to the final reports on three strategic reviews of Commonwealth government programmes–  on indigenous expenditure, the job capacity assessments programme and future directions for government service delivery. 

The Cabinet Strategic Priorities and Budget Committee (SPBC) had decided to commission the reviews at meetings in June and July 2009. They were then undertaken each by a different consultant, leading to the final reports in 2010 that were the subject of the FOI application. The executive summaries (and in one case an additional attachment) not the full reports were attached to subsequent cabinet submissions. The Department contended that the reports were exempt from access by virtue of either or both ss 34 (Cabinet documents) and 36 (deliberative documents) as the sections stood prior to November 2010. The Tribunal rejected the cabinet document claim on the basis that the evidence did not show the reports had been prepared for submission to cabinet. The deliberative document claim failed because the only public interest consideration argued against disclosure was a breach of Cabinet confidentiality, which the Tribunal found would not occur if the reports were released. While precedent was cited in support of the decision on this latter point, the Tribunal gave "cabinet confidentiality" rare, close examination, distinguishing the disclosure of part of the subject matter for Cabinet consideration from a disclosure that would reveal recommendations, deliberations, the views of any member of Cabinet, and conclusions reached.

McKinnon wins another one

Michael McKinnon of the Seven Network has chalked up another good Freedom of Information win, providing the basis for widespread media reports over the last week following disclosure of a consultant's report completed for the Rudd government early in 2010 that concluded spending on indigenous programs of about $3.5 billion annually, maintained over many years ''has yielded dismally poor returns to date. '' The document was released following an Administrative Appeals Tribunal ruling against the Department of Finance and Deregulation, overturning the department's decision that the report (and two others that have received little publicity to date, the Strategic Review of Job Capacity Assessments Program and the Strategic Review of Future Directions for Australian Government Service Delivery) were  exempt as cabinet documents and or deliberative documents. Some media reports describe the decision as a landmark, opening the way for greater access to information considered in cabinet. Its a good and welcome decision but it remains to be seen if the gates open at least a smidgen as a result.The cabinet document exemption claim failed because the Tribunal decided there was insufficient evidence that the documents had been prepared for submission to cabinet, something sure to be corrected from now on. (More about the decision in a separate post.)

The reports released to McKinnon have been published on the Department of Finance Disclosure Log

After the 18 month battle, McKinnon may not have been amused that the minister responsible for indigenous affairs Jenny Macklin says she wasn't part of all this, but is pleased the report is now in the public arena. A brave face after the event maybe. The taxpayer might be even less amused at the cost to date, with the Tribunal still to consider an application by McKinnon for costs, although the criteria for an ex gratia payment from the Attorney General in these circumstances puts the degree of difficulty in the eye of the needle class.

From ABC AM:

Tobacco companies request for government legal advice on packaging sent packing

WikiCommons Media

Along with the war of words and threatened court action by the industry in recent weeks following release of the draft plain packaging for cigarettes bill, came this related Administrative Appeals Tribunal decision by Deputy President Forgie and Senior Member O'Loughlin concerning  a Freedom of Information application by Philip Morris and British Tobacco for advice obtained by the Health department from Attorney General's in 1995 on "the legal and constitutional barriers to generic packaging."

The Tribunal upheld the agency decision to refuse access on legal professional privilege grounds, importantly concluding no waiver of privilege had resulted from the circulation of summaries of the advice in years past to members of two working parties of government and private sector members.

Jared Owens writing about the decision in The Australian said "(t)he tribunal also found the advice was protected by the Parliamentary Privilege (sic) Act, since the 1997 summary formed part of "proceedings in parliament." This seemed to suggest that the PPA provided other grounds for refusal of access.That's not exactly what the Tribunal decided.

The Tribunal found that the Government Response to a Senate committee report, tabled in Parliament and incorporated in Hansard that included a short summary of the advice came within the description of “proceedings in Parliament” in s 16 of the PPA. Section 16(3) prohibits evidence in a court or tribunal concerning proceedings in Parliament in certain circumstances including for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings. The Tribunal ruled this precluded consideration of whether information about the advice in the Government Response to a Senate committee report in 1997 constituted a waiver of legal professional privilege. The reason was that this would require drawing an inference or conclusion that a judgment was made at the time to behave inconsistently with the confidentiality expected when seeking to maintain the privilege.(See DP Forgie at [194-196] and SM O'Loughlin at [214-219]).

Secrecy still trumps, mostly, for E Timor Sitreps 35 years on

The subbie who wrote the headline"Secrets of E Timor invasion to be revealed" to the report of an Administrative Appeals Tribunal decision in today's Sydney Morning Herald was way ahead of the game.  President Downes in Clinton Fernandes and National Archives of Australia [2011] AATA 202 found 250 lines spread across 42  documents, all 35 years old, were not exempt as claimed under s 33 of the Archives Act. However as the Herald report revealed, even the applicant is yet to see those parts of the documents now to be released, so whether they amount to much despite the attempt to keep them secret remains to be seen. As President Downes [18] said: 

The passages which can be released are substantially passages which contain material which is not inherently confidential, where disclosure will not incidentally disclose anything that is.

Radio Australia carried the only other report today under the more accurate "New intelligence files may shed light on Balibo killings". Maybe, maybe not. According to RA

The Defence Department says 95 per cent of its claim was upheld and that it won't be appealing the decision.

The decision 

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: 

ASIC FOI law epic

The decision by Deputy President Forgie of the Administrative Appeals Tribunal in Mathews and Australian Securities and Investments Commission (and ors) [2010] AATA 649 involved a Commonwealth Freedom of Information application submitted seven years ago, was handed down 19 months after the matter was heard in January 2009, runs to 486 paragraphs and includes 402 footnotes.

I won't even try to summarise key points, although three procedural issues of interest are:

• an applicant for review cannot withdraw or discontinue part of an application before the Tribunal and either proceeds with or discontinues the application[152];
• a party joined must be joined without reservation, not  simply to part of the proceedings [[170]; and
• a party is not under any obligation to refrain from subsequently using material that has been given in evidence in an AAT hearing, or lodged in the Tribunal (whether or not it was admitted in evidence at the hearing) and received in the course of the hearing, unless confidentiality is protected by an order under s 35 of the AAT Act, or by a statutory provision applicable to it, or was produced by compulsion under a summons under s 40(1A) of the AAT Act, and has not been admitted in evidence [178].

While Mr Mathews had a win on some documents in dispute, he wasn't granted immediate access all these years later, as ASIC is still to attend to another question - how much by way of charges are to be paid first.

As is usual in her decisions, Deputy President Forgie has undertaken meticulous analysis of relevant exemption provisions, and the applicable case law, even extending to publication of a table of where to find the discussion. Enjoy, well, at least mark this down as a quick reference to the law as it stands.

Annexure	Section	Description	Discussion of law
Annexure I [291]-[312]	36	Internal working documents	[12]-[55]
Annexure J [313]-[320]	37(1)(b) and 37(2)(b)	Enforcement of the law	[56]-[68]
Annexure K [321]-[325]	40	Substantial adverse effect on proper and efficient conduct of operations of agency	[69]-[82]
Annexure L1 [326]-[327]	42	Legal professional privilege (Description of documents)
Annexure L2 [328]-[462]	42 (including deletion of exempt matter under s 22 at [351]-[364]	Legal professional privilege (Consideration of exemption)	[83]-[120]
Annexure M [463]-[477]	45	Breach of confidence	[121]-[129]

Airline safety audit reports not exempt

Expect this decision by Senior Member Taylor in the Administrative Appeals Tribunal this week  to make big news, at least in aviation circles. Michael McKinnon of the Seven Network and Mr Vasta the assistant federal secretary of the Australian Licensed Aircraft Engineers Association substantially succeeded in a Freedom of Information case against the Civil Aviation Safety Authority, winning access to CASA safety audit reports from 2006-07 concerning problems with, and standards for, maintenance of Qantas aircraft offshore.(Update-The 7 Network ran the story Flying Blind on Today Tonight on 12 July.  They promise more when they actually get the documents.)

CASA argued against disclosure, supported by submissions from Qantas and other international airlines, that detrimental effects would follow disclosure. Senior Member Taylor found many of these claims to be general and overblown, and didn't think much of what CASA's main witness had to say on some matters. Exemptions that involved prejudice to the future supply of information, adverse effect on operations and unreasonable effect on business affairs, on the evidence, were not made out, with an exception for one category of documents, Service Difficulty Reports submitted by Qantas concerning serious safety problems

CASA also came in for some criticism about the handling of the FOI applications, which go back three years, including the narrow way it had interpreted a request, and whether all relevant documents had been identified.

The Tribunal, subject to submissions from CASA, is disposed to make a rare recommendation to the Attorney General that the Government pay what would be the "substantial costs" of the applicants, but an anachronistic limitation on the need to demonstate financial hardship is probably going to get in the way here.

Await something interesting on Channel 7 once they get their hands on the documents-or if there is any error of law in the decision, and it looks sound and based on the evidence to me, news of an appeal.