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Monday, August 15, 2011

PM&C publishes red flag compendium

The Department of Prime Minister and Cabinet has published a Guidance Note "intended to assist agencies when considering the application of the Cabinet and deliberative documents exemptions under the Freedom of Information Act 1982 .."

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 The note says all the right things about the need to read it in conjunction with the Australian Information Commissioner’s Guidelines "to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act" and that it was developed in conjunction with the commissioner and the Freedom of Information Commissioner (and the Australian Government Solicitor). But it strikes me as a red flag compendium, full of cautionary messages about considerations that could justify non-disclosure, and little else. In the case of the deliberative documents exemption there are plenty of straws to alert a decision maker to the full range of possibilities when dealing with what insiders could regard as potentially sensitive information. I'm unaware of the precise timing but its appearance in July coincided roughly with the AAT decision in McKinnon and Department of Finance and Deregulation, a pre FOI reform case, where arguments for both these exemptions failed. Some of the "tips" in the Guidance Note are likely to be handy for those keen to head off similar challenges to decisions to refuse access to such documents in future, although others may need a little adjustment in the light of that decision.

The cabinet document exemption is absolute and not subject to a public interest test. But the deliberative document exemption only applies where disclosure of advice, opinion etc, on balance, would be contrary to the public interest. Of course agency decision makers who read and absorb the AIC guidelines will be exposed to the full picture including that the objects of the act, not spelled out in the PM&C note, require weight to be given to the public interest in disclosure "to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making, and..  by increasing scrutiny, discussion, comment and review of government activities" etc. But they won't from reading only what the lead government agency has to say on the subject.

After the barest of introductions, paragraph 3 quotes then minister Senator Faulkner in 2009 that "..there will always be some documents, the disclosure of which is not in the public interest, and which should properly be exempt under the FOI Act," continuing:
"It is essential that agencies consider carefully the application of exemptions to ensure the legitimate protection of government documents consistent with the application of the FOI Act."
This sombre message- in effect "don't let anything slip through"- sets the tone for what follows. As for the Declaration of Open Government, and similar commitments to a new era of openness and transparency, nary a mention.

Cabinet documents The Note restates all the longstanding aspects of the exemption-and the new elements introduced as a result of last November's FOI amendments, importantly the dominant purpose test, and the extension to documents that were brought into existence for the dominant purpose of briefing a Minister about a Cabinet submission, and how far this might extend [9-13] including how a little more care might avoid the lack of evidence situation that arose in the AAT McKinnon case.

Deliberative documents 
Decision makers are alerted to various possibilities, as these 10 paragraphs illustrate. Some of this may need a rewrite in the light of the McKinnon decision:
29. Where a document has a close connection with Cabinet but may not necessarily be covered by the Cabinet exemption, the potential application of section 47C (deliberative documents) should be considered. Similarly, while drafts of Cabinet documents are exempt, this exemption may not extend to other earlier documents which inform the preparation of drafts or other preliminary documents in the Cabinet process. Again the potential application of section 47C to such preliminary documents should be considered.
30. Decision makers should also consider the relationship a document has to a Cabinet process when considering the public interest test for exemptions under section 47C. For example, when considering claiming an exemption under section 47C, an agency can have regard to the proximity of the development of the document in question to the subsequent Cabinet consideration of the same or related issues and the closeness of the ideas being canvassed in the document to those which eventually are included in a Cabinet decision. A document may deal with sensitive issues and be closely connected with a document that was submitted to or considered by Cabinet, or proposed to be submitted, and the disclosure of the document would tend to disclose the nature of relevant Cabinet deliberations. In these circumstances the FOI decision maker should consider claiming the exemption under section 47C on the basis that disclosure would be contrary to the public interest because it could impair the confidentiality of Cabinet processes. Release of the document may also inhibit the full canvassing of issues in the development of Cabinet material. Decision makers should in these circumstances consider the application of exemptions under section 34 or section 47C and determine which exemption is appropriate. The Cabinet Secretariat may also be able to assist in advising on appropriate exemptions.
31. While purely factual material is not considered to be deliberative matter, where a document contains factual material that is related to the provision of policy advice and elaborates its context or likely impact it may potentially come within the deliberative document exemption.

37. A document may be part of a process in the development of sensitive policy on which the Government has not reached a final policy position. Development of a policy position is often an iterative process between a Department and a Minister. This is particularly so where the Minister or the Cabinet has requested a department to develop a significant or innovative policy position that will ultimately be taken to the Cabinet. The FOI decision maker could determine that the document should remain confidential while the policy development process is continuing. The decision maker can take into account the public interest in appropriately maintaining a confidential relationship between ministers and agencies so as to allow agencies and ministers the scope to explore and develop sensitive policy issues.
38. For example, a decision maker may consider that the release of a particular document, in certain instances, at a particular point in time may significantly reduce the quality, clarity or frankness of written advice going to Ministers and that this detriment to the public interest of release of the document outweighs the factors in favour of access. In these types of circumstances, the decision maker may have regard to the potential detrimental impact of a loss of frankness and candour in the provision of advice which could result if sensitive briefing documents are not properly protected. The premature disclosure of the document may not therefore be conducive to the proper workings of government.
39. In this or future like policy processes, the public interest may lie in maintaining the confidentiality of the document.

40. There may also be circumstances in which disclosure might inhibit agencies using innovative processes for policy development. Officials, for example, working on issues which are price or market sensitive may need to test hypotheses against a range of scenarios some of which may be extreme but are still needed to inform the policy development process. Decision makers may want to assess the impact the release of a particular document may have on an agency‟s capacity to continue to undertake this type of policy development process into the future.
41. Put another way, while the FOI Act promotes access to government information, it still allows for decision makers to recognise the importance of the Government having "thinking space‟ in the development of policy, during which release of certain documents may be premature and not in the public interest. As noted below there may be instances where this "thinking space‟ is of an enduring nature.
42. The balance of the public interest needs to be considered at the time the decision maker is considering the FOI request. The release of a document may be contrary to the public interest at a particular time. It does not follow however that the document will always be exempt at different times and in different circumstances. A corollary of this is that the release of a similar document on a previous occasion does not establish any binding precedent or guide to release in future cases.
43. Another consideration is whether the Government is involved in negotiations with other parties. In such cases it may be open to the decision maker to conclude that premature release of documents could impair the Government‟s negotiating position or the trust between parties to the negotiation.
44. Of course there may be some deliberative documents where a public interest case can be made that the documents require protection for a considerable period of time. In addition to the example in paragraph 40 above, in a number of circumstances advice may be provided on fundamental policy and other issues that are of an enduring or recurring nature. The decision maker may need to assess the potential that the release of a document may impair future advice on such issues, including the provision of the full range of strategic options. Again this will need to be assessed on a case by case basis.
The note reminds any who need reminding that there are ways to argue "frank and candid" despite what the Australian Information Commissioner might say:
45. The guidelines issued by the Australian Information Commissioner indicate that assertions that release of a document would inhibit frankness and candour, are not, in those terms (emphasis added), consistent with the objects of the FOI Act and the list of public interest factors favouring disclosure. While this suggests that simply claiming inhibition of frankness and candour is not sufficient to justify a conclusion that the balance of the public interest lies in non-disclosure of a particular document, it is still open to the decision maker to consider the effect of disclosure of the document on frankness and candour in future advice. However, the decision maker needs to demonstrate in each case, having regard to the document under consideration, why release of the particular document will inhibit frankness and candour in a way that will impair the public interest.
Compare and contrast that with this statement by then Special Minister of State Joe Ludwig at the AIAL Conference in 2009:
"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."
Or with this in 2007 from Deputy President Forgie of the Administrative Appeals Tribunal in another McKinnon case, McKinnon and Secretary Department of Prime Minister and Cabinet  [176] that the claim that senior APS officers have a reasonable expectation that the documents would remain confidential and that their release would tend to inhibit frank and objective analysis and evaluation of issues and policy options in the future could be fairly restated: " If the work that they did as APS officers were revealed, they would not in future do the work required of them as APS officers holding senior positions, which required them to give policy advice and to do so in a way that promotes the APS Values."

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