New NSW proposals for access to court documents

A new computer system, CourtLink, for the NSW Court system is being implemented across the Supreme Court, District Court and Local Courts. As part of this process a review of issues associated with access to court information and documents is under way.

A draft review paper "Review of policy on access to court information" (see middle of page) issued by the Attorney General’s Department includes 22 proposals for managing public access including a significant shift away from the current process where the court exercises considerable discretion in deciding whether access to court documents will be granted.

Submissions were invited on the paper and closed on 14 July. Given the issues canvassed concerning rights of access and privacy implications, its had little media coverage. The only article I’ve seen is a straight report “Plan to revamp court access” (no link available) by Chris Merritt, the Australian’s Legal Editor on 9 June.

There has been no mention of the review on the NSW Privacy Commissioner’s website.

The paper makes a strong case that the principle of open justice requires clear rules concerning the public right to access to court information, but acknowledges that the power of technology and online access will require careful handling of some categories of sensitive information considered during court proceedings.

It proposes categorising certain documents and information as open access, with restrictions and legislative prohibitions against media publication of other categories of documents listed as restricted access. It would also give the courts clear powers to require removal of some information from websites where publication may be prejudicial to a trial. Restricted documents that become State Archives will not be available for access for 75 years.

The paper highlights the importance of balancing the principle of open justice and the rights of privacy but notes that currently the NSW Privacy and Personal Information Protection Act does not apply to a court or tribunal when exercising judicial functions.

Apparently courts have approved various arrangements with state government agencies and others such as credit rating organisations to access information in court records but in the absence of legislation there is a lack of rigour in the present system, and no safeguards against misuse of access rights conferred on government agencies.

The proposal for a comprehensive new legislative scheme sounds as if its been a long time in the making and getting a final proposal agreed to by the courts, passed by Parliament, and implemented will be complex and difficult.

While just about every other proposal concerning privacy in NSW seems to be put to one side pending the report on privacy laws generally by the Law Reform Commission it will be interesting to see whether this initiative gets a priority.

Federal Court FOI decision broadens scope for access to court documents

The decision by Justice Gray of the Federal Court of Australia in Bienstein v Family Court of Australia [2008] FCA 1138 will provoke lively interest around the country, particularly from our best legal minds, as it examines what documents held by a court relate to" matters of an administrative nature", and, as a result, are subject to the Freedom of Information Act. Most state and territory FOI acts contain a similar provision, so the decision is of broad significance, although His Honour made much of the legislative history of the particular provision through the Federal Parliament, and what was said at the time by its proponents. So there may be some room for distinguishing this interpretation of the Federal law from other instances where the words or similar words are used, something lawyers, on the bench or elsewhere delight in exploring. For those who administer the federal courts at least, the breadth of the exception to the operation of the Act for some court documents has been significantly reduced.

Justice Gray rejected the view that only documents that contain general information about matters of administration such as those relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases subsequently appealed and criminal cases in which bail was awarded, were subject to the Act.He said it was an error to to interpret the Act to mean that all documents relating to a specific matter in court files were excluded from the right of access.The objective of the provision was to protect from disclosure documents that would endanger the independence of the judiciary.

"What emerges from the context of s5 as well as from the extrinsic materials, is a concern that documents the revelation of which would impinge upon the independence essential to the exercise of the judicial function, or the decision-making process, should not be made available. It follows that, while the words "relates to matters of an administrative nature" in s5 (and also in s6) should be interpreted as including documents that bear upon the exercise of the judicial, or decision-making, functions, only those documents the availability of which would not impinge upon the necessary independence should be regarded as documents relating to matters of an administrative nature. The test will not necessarily be easy to apply. Its application will depend upon the terms of the request for a document, and may require an examination of the circumstances in which the document was produced and is retained. In the application of the test, however, it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions."[78].

Justice Gray found that in failing to apply the proper test, the Administrative Appeals Tribunal had erred in law.

"...(I)n enacting s5 of the FOI Act Parliament intended that some of the documents held by courts would be the subject of access by those applying under the FOI Act. In providing for the making available of any document that "relates to matters of an administrative nature", Parliament was intending to draw a distinction, within the overall category of documents relating to the exercise of the judicial function, between those that were part of the exercise of that function, or so closely related to it that their confidentiality is essential to the exercise of the judicial function, and other documents held by a court."[80].

The matter, now in its sixth year, has been referred back to the Tribunal to undertake the proper assessment. By the way the Family Court had been prepared to settle the case by providing the applicant with the requested documents, but she was apparently having none of this until the point of principle about the interpretation of the Act was cleared up. An experienced FOI applicant who was self-represented, she at least will have out of pocket expenses paid, as the result of a cost order.

The decision comes a week after the NSW Attorney General released a draft paper with new proposals for access to NSW court documents. Matthew Moore pointed out some shortcomings in the draft in his "What they won't tell you" column in the Sydney Morning Herald a week ago.The general issue of improved public access to court documents is also on the national agenda and harmonisation of rules received a mention in this recent communique from the Standing Committee of Attorney Generals

High Court low point for FOI

The High Court decision in McKinnon v Secretary of the Treasury is a major disappointment for open government advocates. On the other hand it will be welcomed by a government whose commitment to openness and transparency has been tarnished by its track record over the last 11 years.

In essence the decision highlights well known deficiencies in the Federal FOI Act. However the 3-2 majority verdict is sure to provide comfort and ammunition for those in government (and their legal advisers) who look for opportunities to frustrate the “public right to know”.

Ten years ago the Australian Law Reform Commission in a comprehensive report called for reform of the Federal FOI Act. That report has never been acted upon. Those reforms and many other proposals for enhancing transparency and accountability have never passed first base with the present government.

One of the report’s recommendations was that a minister should not be able to conclusively certify that it was contrary to the public interest to disclose an internal working document. While the report accepted that government at the highest level should be able to make judgements of a conclusive kind where matters of national security were involved, giving ministers such powers over “thinking process” documents was inconsistent with the objectives of FOI legislation.

This power and how it is exercised was the central matter before the High Court.

The majority found no error of law in earlier decisions in the matter. That is, on review of a decision to issue such a certificate, the Administrative Appeals Tribunal is limited to examination of whether reasonable grounds existed for such a conclusion.

The documents sought in this case are now over 4 years old. They would reveal information about “bracket creep” – the extent to which inflation has added to government coffers as wage increases put Australians in higher tax brackets – and information about fraud in the first two years of the operation of the ‘First Home Owners’ grant scheme, particularly its use by high wealth individuals.

The Treasurer certified that 39 of 40 documents about bracket creep were exempt, and all the 47 documents held on the grant scheme were exempt, in whole or in part.

Estimates are that New Limited (with contributions from other media organisations) may have spent $1million on this challenge and that the Government may have spent $1.5million. The High Court ordered costs against News Limited.

The Court said that the proper interpretation of the Act prevented the Administrative Appeals Tribunal from undertaking any independent assessment of the merits of the claims in the certificate. The only issue to consider was whether the decision to issue the certificate was a decision open to a reasonable person.

The majority decided that the requirement was to consider all relevant factors. However after reviewing what had been done, they concluded that it was open to reason on the basis of the claims put forward in the Treasurer’s certificate, that disclosure would be contrary to the public interest.

Justices Callinan and Heydon, in a joint decision (and in support of a separate decision by Justice Hayne) considered the grounds in the certificate and said that it was not unreasonable to contend that the following claims were relevant to a judgment that disclosure was contrary to the public interest: that disclosure would jeopardise candour and affect keeping of proper records; that the documents were tentative in that they were concerned with matters not settled and recommendations not adopted; that “documents prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government”. They were not impressed with arguments that suggested it would be contrary to the public interest to disclose documents simply because of "ongoing sensitivity", because the public would not be able to understand the context or technical jargon, or that the information might be misrepresented or abbrievated".

Chief Justice Gleeson and Justice Kirby, in the minority concluded that an error of law had occurred, and would have granted the appeal.

Some of the views expressed by those in the majority, are in stark contrast with comments made by the NSW Court of Appeal in a separate recent case, WorkCover Authority v Law Society of NSW (2006) NSWCA 84. The Court of Appeal was required to consider the appropriate test in determining whether disclosure of internal working documents was, on balance, contrary to the public interest.

The Court emphasised the importance of the objects of the Act, (the High Court majority said that even though the limitation on the review powers of the Tribunal were apparently contrary to the objects of the Federal Act, the express words used in the Act to describe the Tribunal’s powers had to be taken at face value), and rejected formulaic, theoretical propositions about the public interest and non disclosure test developed in the pre FOI era of closed government. The NSW Court of Appeal is of the view that simply because a document is a draft does not dictate that it is contrary to the public interest to disclose it.

The NSW FOI Act contains more restricted powers to issue conclusive certificates. The Premier only has the powers, and they do not extend to the issuing of a certificate regarding the internal working document exemption. Few certificates have been issued in the 17 years since the Act commenced. Federally, any minister can issue a certificate. There is no reporting requirement so no information is available on the number of certificates issued.

Will the Federal Treasury (and others) be breaking out the champagne in the light of this decision? Most likely.

Having successfully argued in 1985 against disclosure of budget documents to John Howard MP, in a case that laid down what came to be known as “Howard factors” for non disclosure of internal working documents), they have now again successfully supported the Howard Government’s efforts to put some significant barriers between the public and Treasury thinking process documents, even those as in this case that are 4 years old.

Treasury Secretary Dr. Ken Henry should be very pleased. He told the Canberra Times in March (according to this report in the Australian) that if the High Court decided against the Government, the only answer would be for Treasury officials to not record important steps in decision making in order to protect such documents from those who in his view, sought access in order to embarrass the Government. The best way to deal with these sort of applicants would be to be able to issue conclusive certificates.

The High Court decision has now left open to Dr. Henry and others who share his views (the Treasurer Peter Costello is on the public record as saying that FOI is primarily about getting access to information about an individual’s own affairs, and release of documents containing advice will inhibit provision of frank advice in future), to avoid the prying eyes of those who seek to know what the Government knows about important matters concerning the development of policy. All that is required will be to simply arrange for the issue of a conclusive certificate by a minister citing vague and general grounds about why disclosure would be contrary to the public interest, confident in the expectation that there will never be independent testing of those claims.

Foreign Minister Downer told an audience last week (see the link to the Australian above) that his party is proud of the fact that it runs an open government and that it had introduced FOI legislation in 1982.

Many would suggest its been downhill ever since, with FOI languishing without appropriate leadership, enforcement and resources, and as demonstrated in this case, some fairly conservative views in the Federal Courts about open government.

FOI review rights and who carries the can

The issue in the Federal Government's  Freedom of Information Reform Bill that Australia's Right to Know ran strongly with last week and was picked up elsewhere by the media and in the Senate committee hearing on Friday, revolves around the right to seek merits review from the Administrative Appeals Tribunal, and who should carry the onus if the matter gets that far.

 While it is an important issue, it is hardly the most important, and suggestions in Crikey it would "fatally undermine the move to more open government" seem way over the top. In the year to 30 June 2009 there were 27560 applications under the FOI Act but only 139 applications for review by the Tribunal. With the new system providing, as the Explanatory Memorandum states, "a simple expedient and cost efficient system for external merits review" by the Information Commissioner, everyone will be hoping even fewer cases warrant AAT review, once the Bill becomes law. And there are plenty of issues apart from this one in the Bill that call out for another look.

I'm concerned also about a related matter- the  potential delay tactics if an agency or Minister has a right to further merits review of an Information Commissioner decision.This post looks at whether there should be any such right of review, and at the onus issues.The best approach in my view would be for an agency only to have a right to seek review of a Commissioner decision on the basis of an error in law; and as preserving an applicant right would be a means of ensuring the Commissioner stays on the right path, and the cost of an AAT application ($682) will always sort the serious applicant with a genuine issue from the frivolous, in the event of such an application, the agency or Minister should, as now, carry the onus.

For brave hearts an explanation follows.