The battle over the "Dear Minister' letter to Barnaby Joyce 18 months in the making

Heath Aston  in The Sydney Morning Herald

A one-page letter that the federal government has spent a year and a half and tens of thousands of dollars trying to keep from public sight raises explosive questions about Barnaby Joyce's conduct and "integrity". The March 2015 letter written by Paul Grimes, the former head of the Agriculture Department, was sent 10 days before he was sacked amid fallout from the so-called "Hansard-gate" affair in which the transcript of some of Mr Joyce's statements in Parliament were quietly altered.

Australian Information Commissioner Pilgrim in March decided the letter sought under the Freedom of Information Act by Opposition front bencher Joel Fitzgibbon (and seperately by the Herald and Weekly Times) was not exempt. As Aston writes:

Mr Joyce's department fought that ruling, spent $80,000 on engaging Ernst & Young to review its public information processes, and then fought the matter through the Administrative Appeals Tribunal before giving up the fight just after Parliament rose for two weeks on Friday.

An agency changing its mind on the steps of the tribunal raises the question whether all that time energy and cost to the taxpayer could have been avoided way back when the application was made in June 2015 or when Commissioner Pilgrim made his review decision in March 2016.  

Secretary's letter- opinion about relations with the minister, not for a deliberative process

The issue before Commissioner Pilgrim was whether the one page letter was exempt under s 47C-.

".would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of: (a)  an agency;or (b) a Minister; (c) the Government of the Commonwealth."

The commissioner found (10-17) that the letter set out opinions of the former Secretary and thus satisfied the deliberative matter element of the exemption. 

However the material had not been prepared or recorded in the course of, or for the purposes of a deliberative process:

23. The Guidelines explain that a deliberative process involves the exercise of judgement in developing and making a selection from different options:

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.^[7]

24. In my view, the letter clearly states the former Secretary’s settled opinions on the issue relating to his professional relationship with the Minister. It also conveys the subsequent processes he had put into place to ensure his Department could effectively support the Minister. As these processes had been settled and put in place by the former Secretary at the time the letter was written, it appears that the purpose of the letter to the Minister was to advise of these arrangements. Therefore, it was clearly not seeking the Minister’s views or consideration of the opinions reached by the former Secretary or the subsequent processes he had put in place.
25. Further, I do not agree with the Department that the letter particularly outlines possible means by which the ‘questions posed’, those being related to the ‘discharge of the functions of the office of the Secretary as it relates to supporting the Minister’ at that time, might be resolved. Rather, in respect of that issue, it merely identifies that there are available processes under the Public Service Act 1999.
26. In this regard, the Department contends the possibility that the former Secretary may not continue in that role generated a deliberative process in relation to the ongoing Secretary role. I am not persuaded by this argument. In my view, there is nothing in the letter that goes to show the necessary weighing up or evaluation of competing arguments or considerations that may have had a bearing upon a course of action. The fact that a course of action then followed resulting in the Secretary being replaced does not, in my view, demonstrate that the letter in of itself was prepared for a deliberative process. Therefore, this element of s 47C(1) has not been met.

As the letter was not conditionally exempt, there was no need to consider whether giving access would, on balance, be contrary to the public interest.