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such as those relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases subsequently appealed and criminal cases in which bail was awarded, were subject to the Act.He said it was an error to to interpret the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