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Friday, March 07, 2008

Yes folks, its an important McKinnon win!

There are a number of noteworthy aspects of a recent Freedom of Information decision by Deputy President Forgie of the Administrative Appeals Tribunal in McKinnon and Department of Families, Housing, Community Services and Indigenous Affairs (2008) AATA 161.

There is the canceled contract with a university because of its alleged failure to comply with the terms of a tender; important information about indigenous health, one of the hot topics of our times; a long list of assertions about the dire consequences of disclosure of the documents. Then there is the matter that it took over a year from the time of the hearing in the AAT in February 2007, until the decision was handed down on 28 February 2008 - another example of how the review process does not work satisfactorily. A document has been released in this case close to two years after it was requested.

To cut to the chase, Deputy President Forgie decided that a report prepared by Edith Cowan University for the Department on issues associated indigenous child care should be released to the applicant. This is a relatively rare case where the Tribunal has decided that the public interest in disclosure is sufficiently strong to justify release of the documents. She decided that the public interest in having an informed debate on such an important matters outweighed other the need for government to develop its policies outside the range of public view (paragraph 138). Deputy President Forgie also rejected claims that release of the document would cause damage to relations between the Commonwealth and any of the states and that disclosure could be expected to have a substantial adverse effect on the management of personnel.

Deputy President Forgie's judgment and the detailed analysis of exemption provisions is a legal textbook on the authorities and will be of particular interest for those who wrestle with issues associated with the public interest (starting at paragraph 52). Her word by word dissection of the internal working document provision (from paragraph 71), illustrates the complexity of the words used, and the weight to be given to the various authorities about what they mean. Perhaps the most important observation is her interpretation of the High Court's decision in McKinnon v Treasury as requiring the exemption provisions to be applied to protect only "essential public interests" (paragraph 124).

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