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Monday, September 17, 2007

Divergent thinking in Australia and the UK about disclosure of advice documents

Disclosure of information about the workings of government, in particular advice and internal communication in the course of decision making, is often highly contested.

Two recent decisions by review bodies in Australia and the UK show up a divergence of opinion about the balance between the public right to know, and the need for confidentiality associated with advice given in the course of the decision making process.

A recent decision by the Federal Administrative Appeals Tribunal
(Emery and Secretary, Department of Workplace Relations (2007) AATA 1513)is illustrative of the current approach here regarding applications for advice documents. The case concerned access to a briefing minute prepared for the minister in 2004 on proposals to amend the Safety, Rehabilitation and Compensation Act.

The Tribunal was satisfied that the document contained advice, recommendation, and "deliberation" in the course of "deliberative processes" and thus came within the first limb of the internal working document exemption (Section 36 of the Federal FOIA). Such documents are exempt only if disclosure "would be contrary to the public interest".

The Tribunal accepted the evidence of a senior officer of the Department that disclosure would be contrary to the public interest because it would reveal "frank and confidential communications" with the minister, and because disclosure would lead to "a deterioration in the quality of advice" because public servants in future would be deterred from providing written advice.

Paragraphs 44 - 49 list the precedents in support of the former claim; paragraphs 50 - 57 list those that support the latter claims.

On this basis, disclosure of advice documents would appear to be contrary to the public interest at any time, right up until open access to government documents after 30 years.

Yet recently, the UK Information Tribunal (Friends of the Earth and Information Commissioner) (pdf) expressed scepticism about these type of broad public interest claims.

In a decision about access to information under environmental laws, where the issue was whether disclosure was contrary to the public interest, it decided communications between government agencies concerning North Sea Oil issues should be disclosed even though a final decision on the substantive issues had not been made. It found that the public interest in access to information about government functions, overrode claimed public interests in non disclosure.

The Tribunal considered evidence similar to that argued in the Australian decision referred to above about why disclosure would be contrary to the public interest, but reached exactly the opposite conclusion. It decided that disclosure of documents now two years old was not likely to pose a threat to the candour in future deliberations (paragraphs 54 - 60). "Too much ......can be made of the alleged virtues of candour and frankness......The touchstone is, and remains at all times, the public interest". It rejected the argument that because the ultimate decision was one for the minister that "the views expressed by officials along the way..should (not) be subject to public scrutiny". The Tribunal (paragraph 61) was also "unimpressed" by generalised contentions that disclosure of advice would have a "possible adverse impact upon record keeping":
"(O)fficials in all public authorities as well as Ministers in government should now be fully aware of the risk that in a given case their notes and records and indeed all exchanges, in whatever form are in principle susceptible to a request or order for disclosure. It is not enough in this Tribunal's view to fall back on a plea that revelation of all information otherwise thought to be inviolate would have some sort of "chilling effect"".
This sort of thinking is not evident in the Australian Administrative Appeals Tribunal at the moment.

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