Who ministers and minders talk to about what

Jack Waterford in The Canberra Times compares some aspects of transparency in the UK as practiced by the PM and other ministers concerning meetings with lobbyists, with our very own, echoing observations here about the quite word in the ear approach that slides under the radar in this part of the world. "Spot on, Jack"  I say in a comment just published.

In a related matter, an important decision in the Victorian Civil and Administrative Tribunal last week saw Vice President Judge Jenkins take a broad approach to what constitutes an official document of a minister and within scope of the Victorian Freedom of Information Act.

In The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 Judge Jenkins ruled that the diary of Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier and 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 but were relevant to the Ministerial responsibilities of the Premier or any other Minister, as a Minister of the Crown. The range of entries which 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.

While welcoming this new potential extended torchlight on what ministerial advisers get up to, I expect lawyers will be pondering Judge Jenkins finding [at 75] that

"the expression ‘relates to the affairs of an agency’ does not connote direct involvement by an agency in the document per se, but rather whether the document records any act, matter or event which falls within the Minister’s responsibilities as a Minister of the Crown." 

Information of the kind outside scope where similar words appear in legislation, as in this decision by the Australian Information Commissioner, because it relates to party political activity can still be distinguished. But  it seems to me Judge Jenkins has nudged things forward a notch or two.

As Jack Waterford points out, however, you won't find in these parts anything like that published by 10 Downing Street at "Who ministers are meeting'":

 It lists the diary appointments of all British ministers, and of their senior minders, and of their department heads and senior executive officers. It also lists meetings with journalists, and their organisations. Mostly, it gives some clue about the nature of the discussions (David Cameron, October, met with Joe Lewis to discuss redevelopment of Tottenham Hotspur stadium, or, Lockheed Martin, to discuss Warrior upgrade program.) In some case, little lobbying is said to have occurred: Archbishop of Canterbury, general discussion or Bank of England, discussion of economic outlook.

"Woefully inadequate" search scores a cost order

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The adequacy of the search by an agency for documents or information relevant to a freedom of information application is often a contentious issue.

Older FOI legislation such as the Commonwealth and Victorian acts are silent on what steps an agency must take to attempt to locate relevant material but a reasonable search (see OAIC Guidelines) is the  standard. In the Commonwealth arena, whether "all reasonable steps" were taken is an issue on review  where a decision to refuse access has been taken under s 24A (Chu v Telstra).

Justice Finn in Chu noted that while " an applicant might be able to help an agency in its attempt to locate a document, that person is hardly to be disadvantaged if he or she cannot." An applicant will often find it difficult to dispute agency claims that all reasonable steps were taken.

In a recent Victorian case the applicant pointed out deficiencies in the search process, to no avail, until the matter came before Deputy President Judge Hampel in the Victorian Civil and Administrative Tribunal. In Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876, because of what had happened, she took the unusual step of awarding costs to the applicant despite ruling for the respondent agency on the substantive issue, that the documents in dispute were exempt.

82. I have already expressed the view that the respondent’s searches were woefully inadequate. The applicant was in a position to demonstrate to the respondent, and did so, in precise detail, that its searches were inadequate. It did all that it could have, up until the time of the hearing to bring to the respondent’s attention to the deficiency of its searches and to request it to conduct further searches and to produce the documents sought in the request. That included making the second FOI request to the Minister. I am satisfied that request was only made because of the inadequacy of the original search, and the inadequacy of the Department’s response when taxed with that by the applicant.

83. The respondent’s conduct in my view is unjustifiable. When I indicated that I would order the respondent to conduct further searches, the respondent, whilst maintaining its formal reliance on Burton, undertook to conduct those searches. Within a week, it had identified, and provided a further 1350 pages, which clearly fell within the terms of the search. Only six documents were the subject of exemption claims from this further search. Clearly, the bulk of the material should have been identified in a timely fashion after receipt of the request, and a more cooperative or responsive attitude to the applicant should have been displayed from the time it first raised its concerns about the inadequacy of the searches.

VCAT review of vexatious litigant's FOI request not an abuse of process

Julian Knight, who murdered seven people and injured 19 in Melbourne in the Hoddle St massacre of 1987 has been granted permission to seek review of a Freedom of Information decision by Corrections Victoria (part of the Department of Justice) to refuse him access to his prison file, sought to help him prepare to seek parole when he becomes eligible in 2014. Knight (with 20 odd years of extensive experience in FOI and court processes) was declared a vexatious litigant in 2004, and cannot commence litigation without court approval. He sought leave to challenge the refusal of access decision in the Victorian Civil and Administrative Tribunal.  Section 21(4) of the Supreme Court Act states that leave to commence proceedings ‘must not be given’ unless the court is satisfied the proposed proceeding ‘will not be an abuse of process.'

Supreme Court Justice Bell said [5] the relevant issue that needed to be addressed was "not whether the applicant has ‘reasonable prospects of success’ (in the VCAT proceedings) but whether the application is ‘foredoomed to fail’,.. a less strict test."

FOI in the High Court: Osland case raises soundness of mercy refusal

In the long-running Freedom of Information case that revolves around the circumstances that give rise to the exercise of the Victorian Civil and Administrative Tribunal's override discretion under Section 50(4) of the Freedom of Information Act to require disclosure of an otherwise exempt document where the public interest requires it, the central issue before the High Court will be the Victorian Court of Appeal's view of the proper application of the provision. However the case will also see issues raised relevant to the soundness of the Attorney General's decision to refuse Mrs Osland's petition for mercy.  The grounds for the High Court (Chief Justice French and Justice Keifel) granting special leave to Mrs Osland to appeal were something along these lines:

(a) The Court of Appeal did not perform the task required of it in accordance with the High Court's remittal in that it failed to determine that, in the circumstances of the present case, s 50(4) of the Freedom of Information Act 1982 (Vic) was enlivened as a result of material differences in the various legal advices the Attorney General received

(b) The Court of Appeal erred in concluding that, notwithstanding the content of the press release, there was nothing in the content of the legal advices  and nothing in the revealed differences and the extent between those advices, that attracted the operation of s.50(4) of the FOI Act.

(c) The Court of Appeal ought to have found that the Attorney General's press release announcing his decision was misleading, lacked candour or was otherwise materially inaccurate or incomplete and, as a consequence, s.50(4) was enlivened.

Former Federal Court judge Ron Merkel QC instructed by Nieva Connell of Hunt and Hunt appeared for Mrs Osland.The appeal is likely to be heard in April.

Perhaps it is easy to see from a government perspective why Commonwealth FOI Reform legislation leaves untouched the unique limitation on the Administrative Appeals Tribunal in the FOI area, compared to its powers in other areas of jurisdiction, to not extend to an override discretion. The Law Council of Australia's Mark Robinson argued the case for change at a recent Senate Committee hearing, asserting that full merits review of administrative decisions required that the external review body has all the powers of the original decision maker. Commonwealth FOI decision makers have always had a discretion to release a document found to be exempt. While Opposition Senator Brandis showed some interest, so far no-one in Canberra has been having any of this for the last 28 years.

Mrs Osland was convicted of the murder of her husband, after having endured years of domestic violence, but her son who committed the act was acquitted. She was sentenced to 14 years 6 months imprisonment with a non-parole period of 9 years 6 months and released on parole in July 2005.Mrs Osland initially won the right to access legal advice that formed the basis for the Attorney General's decision to refuse the mercy petition. Appeals have been running ever since.

Mrs Osland's Christmas yet to come-HIgh Court to decide again

Thanks to Harley Schumann at The Lamp Post, which keeps a close eye on the High Court, for alerting me that the Court on Friday granted another special leave application to Marjorie Osland in the long running battle over a Freedom of Information application for documents concerning her petition for mercy. Here's Harley:

Secretary, Department of Justice v Osland (No 2) [2009] VSCA 69 Marjorie Osland is back in the High Court. She is still seeking documents under FOI legislation that relate to her petition for mercy. It must be like Christmas over at Open and Shut.

Christmas? Not quite, but I think it's a reference to comments I made at the time about observations by the Victorian Court of Appeal in a decision that overturned a decision of the then President of the Victorian Civil and Administrative Appeals Tribunal in exercising his public interest override powers, to grant access to documents containing legal advice . Like this for example, which to my mind was a significant reading-down of the discretion:

"(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature."

I don't know the grounds for the application or what was said in granting it, but look forward with interest to reading the transcript and to the eventual hearing on the substance.

ABC Radio has just picked up the story.

Thanks again Harley.