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. 

"Brandis diaries case shows how Freedom of Information has been deliberately neglected"

Rick Snell, University of Tasmania makes a welcome return to the commentariat 

"Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.
In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.
The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers."

Rick Snell, Associate Professor - Acting Dean of Law, University of Tasmania
This article was originally published on The Conversation. Read the original article and comments from readers.

Guardian Australia argues the FOI case: boat turnbacks don't involve security

Paul Farrell of Guardian Australia was not only busy on the Nauru files in recent weeks , he's also been a very interested party in the challenge in the Administrative Appeals Tribunal to refusal of his Freedom of information application for documents about boat turnbacks.
 

We will have to wait until the AAT decision for the detail but among a number of issues the case is testing is the meaning of “security of the Commonwealth” in the FOI act. According to this report

"Farrell’s barrister pushed the point that “national security” was not relevant for operations that were unlawful and the government’s incursions into Indonesian waters, which were covered in some of these logs, were unlawful in his view."

Guardian Australia’s barrister Tom Brennan told the hearing:

“Security in the Asio act goes beyond that which is dealt within the FoI act, because it’s not limited to the security of the body politic. It’s directed also to the security of people.“There can be no doubt that people-smuggling activities are a matter of significant public interest … they are not in my submissions ones that rise as high as touching the security of the commonwealth.”

According to the report Major General Bottrell, Commander of Operation Sovereign Borders testified

“Our greatest asset now is the scepticism of the potentially illegal immigrants..” “Much of our effort is aimed at educating people sitting there, that people smugglers are convincing to get on boats.”People smugglers would use the information about turnbacks to inform asylum seekers about how close they had got in their previous attempts to reach Australia. “Our efforts are to educate them about the dangers of that journey.” Bottrell argued that hiding this information from the public and from people smugglers was essential as part of that education effort.

"Security of the Commonwealth"
The exemption relied upon according to these reports (there may be others) is Section 33(a)(i) of the FOI Act: “A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to: (i) the security of the Commonwealth...

The exemption is absolute- there is no weighing of public interest or other considerations that might favour disclosure. 

The meaning of terms used in the exemption received the usual thorough analysis recently from AAT Deputy President Forgie in Prinn and Department of Defence. [58-96] citing many precedents from court decisions but none that appear directly to address the argument reportedly advanced by Tom Brennan.

Guidelines issued by Australian Information Commissioner
Also of interest in the Prinn case [47-57] Deputy President Forgie parted company with Senior Member Popple (as she had last December in Wood) who most recently in Jones said

"The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary."

Deputy President Forgie:

53. I agree that they are not binding but I disagree that decision-makers, including this Tribunal, “should” apply the Guidelines. The obligation is to have “regard” to them i.e. “... to take into account; consider. ...”.[35] It is not to “apply” them i.e. “... bring to bear, put into practical operation, as a principle, rule, law, etc ...”.[36] Regard can only be had to them if they are made lawfully i.e. within the scope of the power conferred by s 93A and consistently with the FOI Act. Decision-makers cannot be required to have regard to the Guidelines in so far as they relate to the interpretation of the FOI Act. Section 93A(2) limits the power to issue Guidelines for the purposes of the performance of a function or the exercise of a power under that legislation. For those purposes, regard must be had to them and there can be no doubt about that. A modern statement of the importance of guidelines of this sort has been made in Plaintiff M64, to which I have referred at [50] above.

Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:

"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.

Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
 
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.

"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.

Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009

Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:

Agencies (and the AG's office) overplay the consulation card; all part of the FOI game?

 The second of three related posts.

Justice Jagot's ruling in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 on the interpretation and application of the Freedom of information Act provisions regarding third party consultation and the method of assessing the time involved is of significance generally as a somewhat rare Tribunal decision on the subject.

However the Office of Australian Information Commissioner has dealt with a swag of cases over the last year often rejecting agency arguments about these issues. And rejecting what some agencies without foundation seem to regard as a golden rule-that a request that is likely to take more than 40 hours will substantially and unreasonably divert resources.
 
My guess is the reported decisions are the tip of a rather large pile of questionable decisions regarding consultation.Allof which must cost the taxpayer a packet-probably more than the cost of getting on and processing the application in some cases.

Consultation is often required under the FOI act but where it is unnecessary consultation works to slow things down, adds to charges, and as in this case provides the false basis for a refusal to process the application because of a "practical refusal reason"- the work involved "would substantially and unreasonably interfere with the performance of the Minister's functions."(In the case of an agency the test is "would substantially and unreasonably divert the resources of the agency from its other operations." Section 24A.

OAIC decisions 2015
The Department of Immigration and Border Control unsuccessfully argued to the Acting Australian Information Commissioner that it would need to consult with 600 employees before releasing documents relating to the structure of the Department and various contact lists for particular sections within the Department, including the ‘top structure’ of senior management-in other words details of the organisation chart. 

Commissioner Pilgrim concluded it was not reasonably practicable for the Department to undertake consultation with 600 employees. Consultation was not required.[36]. 

(Battling it out in the OAIC in this case followed earlier attempts by the department to slow things down: a previous request was refused because it did not specify it was a request under the FOI act. The amended request was then refused "on the basis that my reference to the Freedom of Information Act 1982 (Cth) was made in the subject heading and not in the body of the email. And secondly, on the basis that my request was made directly to the Authorised decision-maker... and not to one of the addresses nominated by the DIBP to receive such requests." [18]. 
When in the course of the resulting slow journey through the review process at OAIC the commissioner sought submissions from the department on points raised by the applicant, the Department didn't bother [43]).

In an earlier decision involving the same department and similar documents Ray Brown and Department of Immigration and Border Protection, Commissioner Pilgrim had reached the same conclusion: that the Department could decide to give access without engaging 527 staff members in consultation. The Department estimated consultation would have taken 1,052 hours.

The Department of Prime Minister and Cabinet unsuccessfully argued that spending what the Acting Australian Information Commissioner decided was an over estimate of time processing an application for records relating to the US Central Intelligence Agency extraordinary rendition program was a substantial and unreasonable diversion of resources.

On that widely accepted golden rule referred to above, the commissioner said

30.. "40 hours does not indicate a threshold in which a request can no longer be processed, and requests where processing time is in excess of 40 hours do not automatically amount to a practical refusal reason. This is illustrated in ‘FX’ and Department of the Prime Minister and Cabinet [2015] AICmr 39, where I found that a processing time of 53 hours was not an unreasonable diversion of resources and therefore a practical refusal reason did not exist and in ‘GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46, I found that a processing time of 39 hours was not an unreasonable diversion of resources and that a practical refusal reason did not exist."

The commissioner in a previous decision ordered PM&C to process an application for documents relating to David Hicks, rejecting arguments that an additional 20 hours would be needed for consultation with the United States: the consultation provisions "do not include consulting with foreign governments."[31] Processing the application would take between approximately 4.3 and 7 days of an officer's time and would not in any event substantially and unreasonably divert PM&C’s resources from its other operations.

In another case the commissioner decided the PM&C estimate was excessive and placed emphasis on the finding that the claimed diversion of resources was not unreasonable in any event. 

The Department of Education and Training estimated processing an application would take 95 hours. Based on a sample of relevant documents, the commissioner said retrieval and review would consume approximately 49 hours [22] and consultation around six. This would not substantially and unreasonably divert the Department’s resources from its other operations.

Personal experience
I've had quite a few personal experiences of really questionable 'need to consult' calls.The Attorney General's Department consulted me recently because they said a document sought in an FOI application contained information about me. As best I could tell-they just sent me part of the document- the information consisted of my name and a summary of a couple of points made in a submission on the 2010 draft FOI reform bill published on the AGD website!  

Consulting people about their comments on the public record on public policy, in this case, ironically, about open government, is way beyond what the act requires.

While the watchdog's on death row...
The dire circumstances of the Office of Australian Information Commissioner since May 2014 as a result of the Attorney General's attempt to abolish the office, and the squeeze on resources for the FOI function means the watchdog has no capacity to look into agency practices such as this. 

The last OAIC own motion FOI investigation of any kind into agency FOI practices was undertaken in 2014- the second I think since 2010. 

The OAIC 2015-16 Corporate Plan (Goal 2) notes the only funding for the FOI function is for the conduct of review decisions-nothing for investigations and much else. 

In review decisions that chew up funds available the commissioner keeps saying the same things but agencies go on their merry ways.

Maybe a rare AAT decision on the subject might command a bit more attention and acknowledgement in practice.

Two posts on related matters here and here.

The Attorney General's Appointments Diary: Tribunal rules his man mostly got it wrong

The first of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 overturned the decision by the Office of the Attorney General to refuse to process a Freedom of Information application for the Attorney General's appointments diary for the period 18 September 2013 to 12 May 2014. 

Justice Jagot ordered the office to process the application by Shadow Attorney General Mark Dreyfus after a finding that processing would not substantially and unreasonably interfere with the performance of the Minister's functions (Sections 24 and 24AA).
 
Justice Jagot was critical of and disagreed with the approach taken by the office in interpreting and applying the act's provisions on third party consultation, and the calculation of the estimated time involved in order to justify the 'substantial and unreasonable' claim:

76.... this is a case where my conclusion is ultimately based on the onus of proof. It has not been established that processing the request would substantially or unreasonably interfere with the performance of the Attorney-General’s functions having regard to the matters required to be considered in s 24AA(2) of the FOI Act.. 

The evidence before Justice Jagot was provided by Paul O'Sullivan the Attorney General's Chief of Staff, a former DFAT official, High Commissioner to New Zealand and head of ASIO. O'Sullivan is the delegated FOI decision maker in the Attorney General's office.

O'Sullivan had estimated 228-630 hours would be required to process the application including between 130 and 526 hours in consulting persons whose names appeared in the record. 

Justice Jagot ruled most of the consultations were not required by the act and found O'Sullivan's time estimates for other tasks associated with processing the application "unpersuasive", 'generous" and involved "duplication." [74]
  
Justice Jagot said the approach taken by O'Sullivan to the task would defeat the objects of the FOI act, including not only the right of access granted by it but also the express intention of the Parliament that functions and powers are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

15. Because the process of reasoning involves a hypothetical situation the Minister’s or agency’s assessment will necessarily be based on estimates about which, I accept, reasonable minds might differ. It is fundamental, however, that the process of estimation reflects the requirements of the FOI Act. If, for example, the resources that would have to be used are estimated on the basis of requirements for consultation when the FOI Act does not require consultation, then the capacity to decide if a practical refusal reason exists would be able to be used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. The same thwarting of the statutory objects and the intention of Parliament would result if, for example, the estimate was based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged.

Consultation not required
Justice Jagot rejected O'Sullivan's evidence concerning security risks and the need to consult with bodies such as the Australian Federal Police, State and Territory police or intelligence agencies [34-39]; and rejected his assertion that where the name of business representatives or individuals appear in the diary it would "be necessary in every case to go behind the entry and examine associated documents and undertake a complex process of working out whether, by the disclosure of some pattern or mosaic, the disclosure of the information might unreasonably disclose personal or business information of the relevant kind such as to require consultation with the person concerned.' [40].

Importantly, Justice Jagot said it is not necessary to go behind the face of an entry in the diary of a planned meeting with a business representative in order to try to find if there is any reason which might found a reason to consult [44, 45-48].

The names of public servants disclosed as scheduled to attend meetings was not the basis for a claim that the personal privacy exemption could apply [50] therefore not triggering consultation requirements.

Entries in the diary about cabinet meetings [54-57] and a meeting with the Prime Minister's Office [60] were among examples raised in a sample provided in evidence. Justice Jagot said they did not raise consultation or exemption issues.

Correct approach 
Justice Jagot said the obligation to consult prior to disclosure of information concerning  business affairs of a third party was necessary only if the decision maker concluded that the third party "might reasonably wish to make an exemption contention." The test is not whether it appears that a person might wish to make an exemption contention but the identification of "some rational basis which the agency or Minister can discern indicating that disclosure of the document would, or could be expected to, unreasonably affect such a person adversely" in respect of his or her lawful business or professional affairs (etc) [41-42].

Where names of individuals appeared, similar considerations applied:

49,Where an entry in the diary discloses the name of a person who was scheduled to meet the Attorney-General within the period of the requests and nothing more, I am unable to accept that in the ordinary course disclosure of that fact would or even could “involve the unreasonable disclosure of personal information about any person”. As such, I am unable to see a rational basis upon which it could appear that every one of these person(s) might reasonably wish to make an exemption contention. As above, I do not accept that the decision-maker is obliged to search for something not apparent on the face of the document or not otherwise known. If there is nothing apparent on the face of the document and nothing otherwise known to the decision-maker then it cannot appear to the decision maker that a person might reasonably wish to make an exemption contention. The mere appearance of a person’s name in the diary, in my view, is insufficient for it to be apparent on the face of the document that a person might reasonably wish to make an exemption contention. Where, however, something more is disclosed such as the purpose of the meeting or there is some known sensitivity I accept that further consideration or even consultation under s 27A might be required because the view might be reached that such a person might reasonably wish to make an exemption contention. Again, however, my review of the diary extracts indicates that this will be a rare case....

52. Because it is fundamental to the proper administration of the FOI Act, I should reiterate my view that I consider that it would be wrong to approach the required task on the basis that: (i) some people might be sensitive to or concerned about the fact that they have met a Minister in the Minister’s official capacity or that such people might prefer, even strongly prefer, that the fact of their meeting not be disclosed; or (ii) the decision-maker is subject to some obligation to search for material not known or otherwise apparent from the face of the document to which access is sought to try to find some basis for it to appear that a person might reasonably wish to make an exemption contention. There is no foundation in the FOI Act to perform the functions which it requires with a view to such sensitivities. To administer the FOI Act on some other basis would work against the intention of the Parliament. It would elevate personal sensitivities which on a rational view could not involve an unreasonable disclosure of personal information about any person into something that an agency or Minister would have to assess, thereby running the risk (as in the present case) that the agency or Minister perceives that an extraordinary amount of time and effort would be involved in processing the FOI request. By such means, if permitted, the intentions of the Parliament as identified in s 3 would be thwarted.
53. I should also reiterate the relevance to my conclusions in the present case of the fact that the diary extracts in evidence seem to me to consist, in the main, of a series of brief and anodyne entries relating to appointments and work arrangements of the Attorney-General now more than 18 months old. While an underlying issue which was discussed at a meeting might be ongoing, the entries in the diary merely describe who was to be met, not the contents of the meeting, and are now essentially historical.

 Incorrect estimates
O'Sullivan's estimate of the time involved was "calculated on an incorrect basis. While some consultation might be required because of the personal privacy and business documents exemptions "it has not been proved that anything like 130 - 526 hours might be involved. I consider it likely that any consultation required by the FOI Act will be very many orders of magnitude less than has been proposed."[51]. 


No substantial and unreasonable interference with AG"s performance of functions.
 As to the work involved:

75.... I do not accept that this is capable of involving a substantial and unreasonable interference with the performance of the Attorney-General’s functions. The fact that only one person in the Attorney-General’s Office can perform this function because this person is the only one with the relevant software available (as Mr O’Sullivan indicated) and that the task of deletion involves a number of steps is not particularly material to the performance of the Attorney-General’s functions unless, perhaps, the person doing the deletions is the Attorney-General himself or a senior member of staff, neither of which was suggested to be the case...
77.To the extent I am able to make findings about what work will be likely to be involved I do not consider that work will substantially interfere with the performance of the Attorney-General’s functions. I accept that the work itself will not be trivial or insignificant, but that does not mean that such work is likely to involve a substantial interference with the performance of the Attorney-General’s functions. Nor do I accept that any interference as there might be will be unreasonable. Against this, at the level of principle, I consider that there is a 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. I accept the applicant’s submission that to the extent there is any interference with the Attorney-General performing his functions (which, in my view, has not been proved), the interference would be reasonable having regard to several factors, being:

i) There is considerable public interest in the release of the Attorney’s diary;
ii) No steps have been taken to make the diary public; and

3. The actual diversion of resources involved in responding to the request should be minimal.

78. For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act.

Next steps?
It is uncertain whether the Attorney General will appeal the decision, and if not what will be released when the application is processed. 

Justice Jagot's comments about 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" provides an interesting backdrop.

Two posts on related matters here and here. 

Names, signatures and initials of public servants-what's the FOI story?

Names of public servants carrying out usual functions- in the usual case not exempt.

Signatures of public servants-in the usual case exempt: unreasonable disclosure of personal information and on balance contrary to the public interest.

Initials of public servants and police officers?

Although it wasn't a major issue in the matter Acting Australian Information Commissioner Timothy Pilgrim in ‘HJ’ and Australian Federal Police [2015] AICmr 71 (6 November 2015) rejected argument that disclosure of the initials of officers appearing in a document would be unreasonable. The AFP argued the potential for identity fraud or forgery, and the fact that the author of the initials did not expect the material to be released under the FOI Act.

30. The question of whether signatures of public servants are exempt under s 47F is an increasingly common theme in IC reviews. The Guidelines note at [6.140]:

Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

31. The AFP submitted that the release of staff signatures would increase the risk of identity theft or the falsification of instruments, given the powers held by AFP officers. It was also submitted that the relevant document was for internal use and because it was a professional standards form, the person would not have an expectation that their initials could be publicly released.
32. Accepting these general submissions as to possible fraudulent use of the information would equate to me being satisfied that special circumstances exist only because the author of the initials is or was a member of the AFP.
33. I have found that virtually all of the content of the relevant document is exempt and find no reason that would support the disclosure of the initials as unreasonable. I am not persuaded of the potential for identity fraud or forgery from the release of the initials.
34. In my view, to accept the submission that the author of the initials did not expect the material to be released under the FOI Act and therefore release of the personal information would be unreasonable would be contrary to the objects of the FOI Act.
35. Consistent with the decision in Stephen Waller and Department of Environment [2014] AICmr 133, and absent evidence of any special circumstances, I find that it would not be unreasonable to disclose the initials and the material is not exempt under s 47F. 

(Update: a reader has reminded me of this widespread practice across the public service in acknowledging receipt of an FOI application:
"It is the usual practice of the Department to not release the names and contact details of junior officers of the Department and other government agencies, where that personal information is contained in documents within scope of a request.  The names and contact details of senior officers will generally be released.  We will take it that you agree to the removal of junior officers’ personal information unless you advise that you would like us to consider releasing that information as part of the documents you have requested."

While it is somewhat cute, in the usual case I doubt this is of concern to the applicant. 

But it is more than cute when the 'junior officer' is senior enough to have carriage of a particular matter. In an FOI application eons ago about the snail like progress on Australian membership of the Open Government Partnership the Attorney General's Department deleted the names of 12 of 15 officials attending an interdepartmental meeting on the subject.

As I said at the time if they are senior enough to represent the department some accountabilty goes with the territory. 

Previous posts on this issue are here and here 

Challenge to refusal to release incoming government brief will see "Frank and Candid" put to the test

In a Freedom of Information review application in the Administrative Appeals Tribunal today, Shadow Attorney General Mark Dreyfus QC challenged the Government's refusal to release the Incoming Government Brief Attorney-General Senator Brandis received from his department on taking office in 2013.

The AAT challenge comes 12 months after Australian Information Commissioner Professor John McMillan substantially upheld the AGD decision to refuse access to the brief (Parnell &  Dreyfus). At the time he used similar reasoning (Crowe) to refuse access to unreleased parts of the brief prepared in 2010 for then incoming Prime Minister Gillard. 

It's an important opportunity to test the public interest arguments accepted in those decisions - see my comments at the time - as "Frank and Candid" have since become some FOI decision makers' best friend.  

Attorney General's in this example managed to soak up sixteen months with "Frank and Candid" arguments before releasing most of the document when challenged. By that time it was three years old. There are plenty of others.

 Justice Annabelle Bennett, Deputy President of the AAT, is hearing the application.

I'm sure Deputy President Forgie's monumental decision (in pre 2010 reform days) and sceptical examination of "Frank and Candid" in McKinnon v Secretary Prime Minister and Cabinet [2007] AATA 1969 won't escape attention.

The Media Release from Mr Dreyfus says:

"(Incoming Government Briefs) set out the policy challenges faced by a new government and advise on how the government can go about implementing its agenda. These briefs provide an important overview of the state of the nation at the time the new government takes office and help inform public policy debate", said Mr Dreyfus.

"Labor published IGBs from a range of agencies after the 2010 election and also released incoming Attorney-General’s briefs in 2012 and 2013. Public debate should be informed by the expert advice of government agencies which their taxes pay for. Honest governments have nothing to hide."

The Abbott Government refused Mr Dreyfus' FOI request for the Attorney-General's Department's IGB. It continued to resist disclosure through a review conducted by the Information Commissioner, forcing Mr Dreyfus to go all the way to a contested hearing in the AAT.

The principle of open government the FOI Act upholds was reinforced by amendments made in 2010. These reforms should be respected by the current Government as an important part of upholding the rule of law."said Mr Ben Slade, partner at Maurice Blackburn, whose firm represented Mr Dreyfus in the AAT.

"Unfortunately, Senator Brandis is openly hostile to FOI laws", said Mr Dreyfus.In Senate Estimates in November 2013 the Secretary of his Department admitted that the Government was taking a "hardball" approach to disclosure. Senator Brandis has also sought to abolish Australia's independent FOI watchdog, the Office of the Australian Information Commissioner. Though the necessary legislation has stalled in the Senate, Senator Brandis has imposed harsh budget cuts on the body and refused to appoint new statutory office-holders to the Office, which will soon be completely vacant.

Australian Information commissioners: names should be put to faceless public servants

Only Silence-Wikimedia Commons

Decisions by the Australian information commissioners should bring to a halt the widespread agency practice of deleting as irrelevant (s 22) names of public servants below Senior Executive Service rank contained in documents to be released in response to a Freedom of Information application; and deletion of the name regardless of rank on the basis of the personal privacy exemption (S 47F) where it identifies an officer simply carrying out public duties. 

Then again as public servants observe the government's two pronged ongoing attempt to force closure of the office and return the FOI guidance function to the Attorney General's Department, I wouldn't bank on it.

In April in ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, an attempt on behalf of David Hicks to obtain documents relating to an aspect of his confinement at Guantanamo, Australian Information Commissioner Professor John McMillan said [14]:

There is no apparent logical basis for treating the names of SES officials as being within the scope of a request but of other officials as being irrelevant to the request. Nor, as I have noted in the Guidelines (6.138-141) will the disclosure of the name of an official performing their public duties usually be regarded as an unreasonable disclosure of personal information under s 47F.

In GF’ and Department of the Treasury [2015] AICmr 47(7 July 2015) Privacy Commissioner Pilgrim recounts that Treasury decided to treat the names, email addresses and other contact details of public service officers as irrelevant to the request,informing the applicant[10]:

"We will provide you with the designations (for example, Analyst, Senior Adviser, Manager) of authors and addressees of documents in the schedule of documents accompanying the decision letter so that their relative seniority is known.

Commissioner Pilgrim said

12. In my view, there is nothing in the request that indicates the applicant considers the names and contact information of public service officers irrelevant to the request. Rather, it appears that the Department simply decided that it will release the designation of officers, but not their names and contact details. 

He went on to cite the FM decision.

Treasury in addition claimed as exempt on personal privacy grounds the name of the Australian Government Solicitor Special Counsel Litigation. Commissioner Pilgrim said

35. ..the Department have not submitted any specific reason why it would be unreasonable to disclose this information. Further, the AGS website provides key information, including photographs and telephone numbers for a number of its Special Counsel and other officers. Consistent with the Australian Information Commissioner’s views expressed in ‘FM’ and which I discussed above at [12], and the absence of any specific submissions from the Department giving reasons why disclosure of the Special Counsel’s name would be unreasonable, I am satisfied that the Department has not met its onus under s 55D of the FOI Act of establishing that document 2 is exempt under s 47F.

As mentioned in this gripe last year the usual practice in many agencies is to advise the applicant before processing the application that the names of non SES officers in documents will be treated as irrelevant, and seek the applicant's agreement. Usually most applicants will shrug at this point and say yes in the often forlorn hope this will reduce bones of contention. I cited personal experience where the government's preferred guidance setters on FOI, the Attorney General's Department, deleted names with absurd results that those who have carriage of important public policy matters are protected from disclosure for no reason at all.

In the usual case the names of public servants carrying out public duties should be disclosed when sought although intimidation, harassment or threat to life and safety understandably change the situation. 

If we need legislative change to get the message through, the Western Australian Freedom of Information Act (Schedule 1 Clause 3) provides a starting point:

The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer. 

Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.