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Wednesday, February 20, 2019

"Implied understanding" of confidentiality about Federal-State meetings?

In the Estimates hearing for Department of Prime Minister and Cabinet this week Senator Rex Patrick referred to an FOI knockback that suggested meetings of senior officials are confidential, and put the department on notice that he is going to challenge.

And gave this tip:
"I haven't lost one yet. So maybe you want to go back and reconsider a decision on this particular issue."

Senator PATRICK: I've just got a couple of questions—perhaps to you, Ms Foster. Mr Duggan might also be helpful in this regard. I put in an FOI—and I don't want to prosecute the FOI, but it raises a more general concern I might have—for access to a diary. It was the secretary's diary, actually. In response to that, the words came back that the diaries obviously contain details of meetings between the secretary and senior officials of state and territory governments, that information about those meetings is not in the public domain and that, further, there's an implied understanding between the Commonwealth and the states and territory authorities that details of these meetings are kept confidential. I just want to narrow in. Is this some sort of state-to-federal-government agreement that exists with the secretary, or is it more generally a claim that there is an implication that meetings that are held between federal officials and state officials are always secret?
Ms Foster : Let me just get the expert up to the table so that we can answer you very precisely.
Senator PATRICK: Fantastic.
Mr Duggan : There's no general agreement in this regard. It really depends on the nature of the conversation that's being had. Clearly, if the nature of that conversation is something of commercial or national security effect, then that's not something that we typically publicise. But, to the extent that there is no general understanding or general set of rules or guidelines that prohibit—
Senator PATRICK: So there's no implied understanding that the existence of a meeting should be held secret, because you could imagine that anyone listening would think that something that would occur in Stalin's times is that there is general secrecy when public officials, who work for the state, are paid for by the state and work for the public—and it's the same on the federal side—meet. In fact, the FOI guidelines are quite good and case law is quite good, in that what normally could be protected—and there is a threshold to that protection; it is not a blanket protection—is that the communication that is taking place at those meetings is held to be confidential, not the meetings themselves. By way of example, when Mr Dreyfus sought to have access to Mr Brandis's diaries, the judge made it very clear that a meeting between the Attorney-General and ASIS cannot be withheld. It doesn't go to what they talked about, but one would expect the Attorney-General to talk to ASIS on a regular basis. So is there some understanding that the fact of a meeting taking place between state officials is to be withheld from the public? Is that the case?
Mr Duggan : The FOI Act provides that there are grounds but under some fairly strict conditions. I think your presumption that, in general, we wouldn't seek to hide the fact that there were meetings taking place between Commonwealth and state officials is absolutely right. But there are some ground under the FOI Act where you would withhold that information. Those ground are: we would reasonably expect it to cause damage between the Commonwealth and the states—
Senator PATRICK: Yes. That's the threshold I was referring to. But the words were very clear: 'There is an implied understanding between the Commonwealth and the states and territory authorities that details of these meetings are kept confidential.' So that there would be an implied understanding of confidentiality of the fact of a meeting taking place.
Mr Duggan : There's also a second element to that, which is about the extent that revealing that information would disclose information on a matter that's communicated in confidence between the Commonwealth and the states. So there are some things that we do transact with the states and territories that are—
Senator PATRICK: But, for example, having a meeting with a Murray-Darling Basin state or having a Mr McCormack meeting with a state transport minister would surely not be confidential?
Ms Foster : It would be very unusual for the fact of the meeting to be—
Senator PATRICK: Sure. That's what I'm getting to.
Ms Foster : covered by that. But, in some cases, that is the case. As you'd be aware, with each FOI request, we look at each document and assess it on a case-by-case basis. We're not making a generic statement about such meetings but saying that, in this instance, we believe this exemption applied.
Senator PATRICK: This actually makes it very clear: there's an implied understanding between the Commonwealth and states and territory authorities that details of these meetings are kept confidential. Which is why I said: is it only the secretary of PM&C that that applies to, or, more broadly, everyone? But you're saying that's not the case.
Ms Foster : What I'm trying to say is that I think that statement was setting the context for us to apply in this specific case, because if, indeed, there is nothing sensitive, then there is no reason to withhold.
Senator PATRICK: I guess I'll leave this to the Information Commissioner now—
Ms Foster : Indeed.
Senator PATRICK: and, possibly, the AAT. But I'll give you a bit of a tip: I haven't lost one yet. So maybe you want to go back and reconsider a decision on this particular issue.
Ms Foster : Certainly, Senator.
Senator PATRICK: I've won them in the AAT, and even when I get to the AAT the department generally says, 'Oh, well, in that case, we'd better let you have a lot of it.'