Agencies (and the AG's office) overplay the consulation card; all part of the FOI game?

 The second of three related posts.

Justice Jagot's ruling in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 on the interpretation and application of the Freedom of information Act provisions regarding third party consultation and the method of assessing the time involved is of significance generally as a somewhat rare Tribunal decision on the subject.

However the Office of Australian Information Commissioner has dealt with a swag of cases over the last year often rejecting agency arguments about these issues. And rejecting what some agencies without foundation seem to regard as a golden rule-that a request that is likely to take more than 40 hours will substantially and unreasonably divert resources.
 
My guess is the reported decisions are the tip of a rather large pile of questionable decisions regarding consultation.Allof which must cost the taxpayer a packet-probably more than the cost of getting on and processing the application in some cases.

Consultation is often required under the FOI act but where it is unnecessary consultation works to slow things down, adds to charges, and as in this case provides the false basis for a refusal to process the application because of a "practical refusal reason"- the work involved "would substantially and unreasonably interfere with the performance of the Minister's functions."(In the case of an agency the test is "would substantially and unreasonably divert the resources of the agency from its other operations." Section 24A.

OAIC decisions 2015
The Department of Immigration and Border Control unsuccessfully argued to the Acting Australian Information Commissioner that it would need to consult with 600 employees before releasing documents relating to the structure of the Department and various contact lists for particular sections within the Department, including the ‘top structure’ of senior management-in other words details of the organisation chart. 

Commissioner Pilgrim concluded it was not reasonably practicable for the Department to undertake consultation with 600 employees. Consultation was not required.[36]. 

(Battling it out in the OAIC in this case followed earlier attempts by the department to slow things down: a previous request was refused because it did not specify it was a request under the FOI act. The amended request was then refused "on the basis that my reference to the Freedom of Information Act 1982 (Cth) was made in the subject heading and not in the body of the email. And secondly, on the basis that my request was made directly to the Authorised decision-maker... and not to one of the addresses nominated by the DIBP to receive such requests." [18]. 
When in the course of the resulting slow journey through the review process at OAIC the commissioner sought submissions from the department on points raised by the applicant, the Department didn't bother [43]).

In an earlier decision involving the same department and similar documents Ray Brown and Department of Immigration and Border Protection, Commissioner Pilgrim had reached the same conclusion: that the Department could decide to give access without engaging 527 staff members in consultation. The Department estimated consultation would have taken 1,052 hours.

The Department of Prime Minister and Cabinet unsuccessfully argued that spending what the Acting Australian Information Commissioner decided was an over estimate of time processing an application for records relating to the US Central Intelligence Agency extraordinary rendition program was a substantial and unreasonable diversion of resources.

On that widely accepted golden rule referred to above, the commissioner said

30.. "40 hours does not indicate a threshold in which a request can no longer be processed, and requests where processing time is in excess of 40 hours do not automatically amount to a practical refusal reason. This is illustrated in ‘FX’ and Department of the Prime Minister and Cabinet [2015] AICmr 39, where I found that a processing time of 53 hours was not an unreasonable diversion of resources and therefore a practical refusal reason did not exist and in ‘GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46, I found that a processing time of 39 hours was not an unreasonable diversion of resources and that a practical refusal reason did not exist."

The commissioner in a previous decision ordered PM&C to process an application for documents relating to David Hicks, rejecting arguments that an additional 20 hours would be needed for consultation with the United States: the consultation provisions "do not include consulting with foreign governments."[31] Processing the application would take between approximately 4.3 and 7 days of an officer's time and would not in any event substantially and unreasonably divert PM&C’s resources from its other operations.

In another case the commissioner decided the PM&C estimate was excessive and placed emphasis on the finding that the claimed diversion of resources was not unreasonable in any event. 

The Department of Education and Training estimated processing an application would take 95 hours. Based on a sample of relevant documents, the commissioner said retrieval and review would consume approximately 49 hours [22] and consultation around six. This would not substantially and unreasonably divert the Department’s resources from its other operations.

Personal experience
I've had quite a few personal experiences of really questionable 'need to consult' calls.The Attorney General's Department consulted me recently because they said a document sought in an FOI application contained information about me. As best I could tell-they just sent me part of the document- the information consisted of my name and a summary of a couple of points made in a submission on the 2010 draft FOI reform bill published on the AGD website!  

Consulting people about their comments on the public record on public policy, in this case, ironically, about open government, is way beyond what the act requires.

While the watchdog's on death row...
The dire circumstances of the Office of Australian Information Commissioner since May 2014 as a result of the Attorney General's attempt to abolish the office, and the squeeze on resources for the FOI function means the watchdog has no capacity to look into agency practices such as this. 

The last OAIC own motion FOI investigation of any kind into agency FOI practices was undertaken in 2014- the second I think since 2010. 

The OAIC 2015-16 Corporate Plan (Goal 2) notes the only funding for the FOI function is for the conduct of review decisions-nothing for investigations and much else. 

In review decisions that chew up funds available the commissioner keeps saying the same things but agencies go on their merry ways.

Maybe a rare AAT decision on the subject might command a bit more attention and acknowledgement in practice.

Two posts on related matters here and here.

The Attorney General's Appointments Diary: Tribunal rules his man mostly got it wrong

The first of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 overturned the decision by the Office of the Attorney General to refuse to process a Freedom of Information application for the Attorney General's appointments diary for the period 18 September 2013 to 12 May 2014. 

Justice Jagot ordered the office to process the application by Shadow Attorney General Mark Dreyfus after a finding that processing would not substantially and unreasonably interfere with the performance of the Minister's functions (Sections 24 and 24AA).
 
Justice Jagot was critical of and disagreed with the approach taken by the office in interpreting and applying the act's provisions on third party consultation, and the calculation of the estimated time involved in order to justify the 'substantial and unreasonable' claim:

76.... this is a case where my conclusion is ultimately based on the onus of proof. It has not been established that processing the request would substantially or unreasonably interfere with the performance of the Attorney-General’s functions having regard to the matters required to be considered in s 24AA(2) of the FOI Act.. 

The evidence before Justice Jagot was provided by Paul O'Sullivan the Attorney General's Chief of Staff, a former DFAT official, High Commissioner to New Zealand and head of ASIO. O'Sullivan is the delegated FOI decision maker in the Attorney General's office.

O'Sullivan had estimated 228-630 hours would be required to process the application including between 130 and 526 hours in consulting persons whose names appeared in the record. 

Justice Jagot ruled most of the consultations were not required by the act and found O'Sullivan's time estimates for other tasks associated with processing the application "unpersuasive", 'generous" and involved "duplication." [74]
  
Justice Jagot said the approach taken by O'Sullivan to the task would defeat the objects of the FOI act, including not only the right of access granted by it but also the express intention of the Parliament that functions and powers 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.

15. Because the process of reasoning involves a hypothetical situation the Minister’s or agency’s assessment will necessarily be based on estimates about which, I accept, reasonable minds might differ. It is fundamental, however, that the process of estimation reflects the requirements of the FOI Act. If, for example, the resources that would have to be used are estimated on the basis of requirements for consultation when the FOI Act does not require consultation, then the capacity to decide if a practical refusal reason exists would be able to be used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the 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. The same thwarting of the statutory objects and the intention of Parliament would result if, for example, the estimate was based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged.

Consultation not required
Justice Jagot rejected O'Sullivan's evidence concerning security risks and the need to consult with bodies such as the Australian Federal Police, State and Territory police or intelligence agencies [34-39]; and rejected his assertion that where the name of business representatives or individuals appear in the diary it would "be necessary in every case to go behind the entry and examine associated documents and undertake a complex process of working out whether, by the disclosure of some pattern or mosaic, the disclosure of the information might unreasonably disclose personal or business information of the relevant kind such as to require consultation with the person concerned.' [40].

Importantly, Justice Jagot said it is not necessary to go behind the face of an entry in the diary of a planned meeting with a business representative in order to try to find if there is any reason which might found a reason to consult [44, 45-48].

The names of public servants disclosed as scheduled to attend meetings was not the basis for a claim that the personal privacy exemption could apply [50] therefore not triggering consultation requirements.

Entries in the diary about cabinet meetings [54-57] and a meeting with the Prime Minister's Office [60] were among examples raised in a sample provided in evidence. Justice Jagot said they did not raise consultation or exemption issues.

Correct approach 
Justice Jagot said the obligation to consult prior to disclosure of information concerning  business affairs of a third party was necessary only if the decision maker concluded that the third party "might reasonably wish to make an exemption contention." The test is not whether it appears that a person might wish to make an exemption contention but the identification of "some rational basis which the agency or Minister can discern indicating that disclosure of the document would, or could be expected to, unreasonably affect such a person adversely" in respect of his or her lawful business or professional affairs (etc) [41-42].

Where names of individuals appeared, similar considerations applied:

49,Where an entry in the diary discloses the name of a person who was scheduled to meet the Attorney-General within the period of the requests and nothing more, I am unable to accept that in the ordinary course disclosure of that fact would or even could “involve the unreasonable disclosure of personal information about any person”. As such, I am unable to see a rational basis upon which it could appear that every one of these person(s) might reasonably wish to make an exemption contention. As above, I do not accept that the decision-maker is obliged to search for something not apparent on the face of the document or not otherwise known. If there is nothing apparent on the face of the document and nothing otherwise known to the decision-maker then it cannot appear to the decision maker that a person might reasonably wish to make an exemption contention. The mere appearance of a person’s name in the diary, in my view, is insufficient for it to be apparent on the face of the document that a person might reasonably wish to make an exemption contention. Where, however, something more is disclosed such as the purpose of the meeting or there is some known sensitivity I accept that further consideration or even consultation under s 27A might be required because the view might be reached that such a person might reasonably wish to make an exemption contention. Again, however, my review of the diary extracts indicates that this will be a rare case....

52. Because it is fundamental to the proper administration of the FOI Act, I should reiterate my view that I consider that it would be wrong to approach the required task on the basis that: (i) some people might be sensitive to or concerned about the fact that they have met a Minister in the Minister’s official capacity or that such people might prefer, even strongly prefer, that the fact of their meeting not be disclosed; or (ii) the decision-maker is subject to some obligation to search for material not known or otherwise apparent from the face of the document to which access is sought to try to find some basis for it to appear that a person might reasonably wish to make an exemption contention. There is no foundation in the FOI Act to perform the functions which it requires with a view to such sensitivities. To administer the FOI Act on some other basis would work against the intention of the Parliament. It would elevate personal sensitivities which on a rational view could not involve an unreasonable disclosure of personal information about any person into something that an agency or Minister would have to assess, thereby running the risk (as in the present case) that the agency or Minister perceives that an extraordinary amount of time and effort would be involved in processing the FOI request. By such means, if permitted, the intentions of the Parliament as identified in s 3 would be thwarted.
53. I should also reiterate the relevance to my conclusions in the present case of the fact that the diary extracts in evidence seem to me to consist, in the main, of a series of brief and anodyne entries relating to appointments and work arrangements of the Attorney-General now more than 18 months old. While an underlying issue which was discussed at a meeting might be ongoing, the entries in the diary merely describe who was to be met, not the contents of the meeting, and are now essentially historical.

 Incorrect estimates
O'Sullivan's estimate of the time involved was "calculated on an incorrect basis. While some consultation might be required because of the personal privacy and business documents exemptions "it has not been proved that anything like 130 - 526 hours might be involved. I consider it likely that any consultation required by the FOI Act will be very many orders of magnitude less than has been proposed."[51]. 


No substantial and unreasonable interference with AG"s performance of functions.
 As to the work involved:

75.... I do not accept that this is capable of involving a substantial and unreasonable interference with the performance of the Attorney-General’s functions. The fact that only one person in the Attorney-General’s Office can perform this function because this person is the only one with the relevant software available (as Mr O’Sullivan indicated) and that the task of deletion involves a number of steps is not particularly material to the performance of the Attorney-General’s functions unless, perhaps, the person doing the deletions is the Attorney-General himself or a senior member of staff, neither of which was suggested to be the case...
77.To the extent I am able to make findings about what work will be likely to be involved I do not consider that work will substantially interfere with the performance of the Attorney-General’s functions. I accept that the work itself will not be trivial or insignificant, but that does not mean that such work is likely to involve a substantial interference with the performance of the Attorney-General’s functions. Nor do I accept that any interference as there might be will be unreasonable. Against this, at the level of principle, I consider that there is a significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General. I accept the applicant’s submission that to the extent there is any interference with the Attorney-General performing his functions (which, in my view, has not been proved), the interference would be reasonable having regard to several factors, being:

i) There is considerable public interest in the release of the Attorney’s diary;
ii) No steps have been taken to make the diary public; and

3. The actual diversion of resources involved in responding to the request should be minimal.

78. For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act.

Next steps?
It is uncertain whether the Attorney General will appeal the decision, and if not what will be released when the application is processed. 

Justice Jagot's comments about the " significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General" provides an interesting backdrop.

Two posts on related matters here and here.