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Monday, January 18, 2016

Contrary to the Attorney General's view, who ministers meet and why should be no state secret

The third of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 found the the Office of the Attorney General got it wrong in refusing to process a Freedom of Information application for the AG's appointments diary.
 Of course the office involved isn't just any ministerial office. 

It's the office of the minister with overall responsibility for administration of the Freedom of Information Act. And the Attorney General has plans before Parliament that if passed would see him play a bigger role in guiding other ministers, agencies and the tribunal on interpretation and application of the act.

The Attorney General's initial and so far as I have seen only response to the decision is that he opposes release of ministerial diaries as a matter of principle:
"Let's be clear that the principle that I was upholding is the same principle Mr Dreyfus when he was a minister in the previous labor government himself upheld. That is as a general rule minister's diaries ought not to be the subject of FOI Legislation. That was a principle that was invoked by Mr Rudd when he was Prime Minister and by Ms Gillard when she was Prime Minister."
That principle wasn't argued in the Dreyfus case. 

Or argued in the two cases in previous governments the Attorney General may have had in mind, Fletcher and Davies

If a class of documents such as 'ministers' diaries' are to be excluded from FOI, that's a matter for parliament not the courts or tribunal.

Justice Jagot in her decision noted a quite different principle: the "significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General."[77].

In Davies, then Australian Information Commissioner Professor McMillan in the course of finding that there was a 'practical refusal reason' to refuse to process the application, referred to the public interest in disclosure and the practice in other jurisdictions of pro-active release of information about ministerial meetings [45-50]. The up to date list of jurisdictions where information about appointments is published includes Queensland, NSW, (in both cases as a matter of policy not a legislative requirement), United Kingdom (example) and United States.  

The commissioner in deciding in Fletcher that parts of a minister's diary should be disclosed noted various court and tribunal decisions in the UK, Western Australia and Canada where access to appointments diaries had been granted because exemption claims fell flat and/or the public interest in disclosure was strong:The Cabinet Office v Information Commissioner EA/2008/0049 (UK Tribunals Service, 5 January 2009); Re Ravlich and Attorney-General; Minister for Corrective Services [2009] WAICmr 17 (Information Commissioner (WA), 14 August 2009); and Canada (Information Commissioner) v Canada (Minister of National Defence [2011] 2 SCR 306 (Canadian Supreme Court).

The Attorney General's opposite view is of particular interest given the bill in his name before the Senate since October 2014 that would abolish the independent Australian Information Commissioner position and among other arrangements, transfer to the Attorney General himself authority to issue guidelines on the interpretation of the FOI act. Decision makers must have regard to the guidelines in exercising functions under the act. 

From the Explanatory Memorandum: 
Items 12, 13, 16, 17 and 20 omit references to the Information Commissioner in connection with guidelines issued under section 93A of the FOI Act consequential to item 53, which amends section 93A to provide that the Attorney-General, rather than the Information Commissioner, may issue guidelines.

Items 18 and 19 amend section 11C of the FOI Act to replace references to the Information Commissioner with the Attorney-General, as the Attorney-General will have the power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log.

Item 50 inserts new section 92A of the FOI Act which provides for the Attorney‑General to prepare a report on the operation of the Act each financial year and sets out the matters that must be reported. This ensures that the annual reporting requirements in section 30 of the AIC Act in relation to FOI matters will continue. The Attorney-General will be responsible for reporting on the FOI Act instead of the Information Commissioner. 

Item 53 replaces references to the Information Commissioner being responsible for issuing guidelines under the FOI Act with references to the Attorney-General.
Fortunately the bill seems well blocked in the Senate, so we might be spared the AG's version of guidelines on ministerial diaries and other matters where the public right to know  as set out in the FOI act must be weighed against valid government needs for secrecy and confidentiality.

Ah but the Attorney did say before Christmas he hadn't read the AAT decision and when he had done so would decide if it should be appealed.

It ain't over till its over.

Two posts on related matters here and here.

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