Former Federal Information Commissioner Calls for FOI Overhaul Following AG's Diary Case

Thursday 21 January 2016 @ 9.15 a.m. | IP & Media | Legal Research

In December 2015, the Federal shadow Attorney-General Mark Dreyfus won an important Administrative Appeal Tribunal (AAT) decision in Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 (22 December 2015) - a case resulting from his attempts to gain access to the "email diary" of his government counterpart Attorney-General George Brandis. The AAT ruled that there was "no practical reason for refusing his [the shadow AG's] request" to access the diaries.

Nature of the AAT Application

The application for review lodged by the shadow AG was for the review of a decision of the delegate of the AG to refuse a request for access to a document or documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). The refusal relied on sections 24 and 24AA which permit access to be refused if a “. . . practical refusal reason exists in relation to the request”. It was agreed that the FOI requests (which were two in number) be treated as a single request for access to the AG’s diary in a “. . . weekly agenda” format for a period starting from 18 September 2013 to 12 May 2014.

In deciding the case, Justice Jagot concluded that the AG had not discharged the onus under section 61(1)(b) of the FOI Act that the decision is justified or that the Tribunal should give a decision adverse to the applicant and accordingly, the decision of the AG’s delegate that a ". . . practical refusal reason exists in relation to the requests should be set aside". The effect of the decision was not to grant access to the diaries but to return the matter to the AG's delegate for reconsideration.

Issues and Reasoning

Two key issues arose in the matter, the first being: whether a practical refusal reason was established, and the second being: whether the request would constitute a substantial and unreasonable interference with the performance of the AG’s functions.

On the question of whether a "practical refusal reason was established", Justice Jagot said at [69]:

". . . The case for a practical refusal reason must be clear. Moreover, the amount of work involved is not the ultimate test. It is whether that work will involve a substantial and unreasonable interference of the relevant kind.

On the question of "substantial and unreasonable interference" at [70] Justice Jagot said:

"Neither party could identify any case in which the test of “substantially and unreasonably interfere with the performance of the Minister’s functions” which is relevant in the present matter has been considered. I consider that such interference may occur in at least two ways. First, the Minister might have to be asked to review documents (in this case, some of the diary entries) in order to ascertain in particular but perhaps not exclusively whether the entry does or does not relate to the affairs of an agency or of a Department of State. This has the potential, at least, to interfere with the performance of the Minister’s functions by reason of the time necessary to undertake the required task. Second, the performance of the Minister’s functions may be the subject of interference if the time of senior staff is required to examine entries with the result that they are unable to assist the Minister in a timely manner. In both cases, in my view, the key is how much work will actually be involved. Not every requirement for a Minister to examine a diary entry or entries personally will constitute an interference with the performance of functions by the Minister, let alone a substantial and unreasonable interference. Nor does the fact that appropriate staff of the Attorney-General’s Office will have to look at every entry in the diary over the relevant period necessarily mean that there will be such interference."

Further, at [73], Justice Jagot distinguishes the present case from similar matters arising with respect to the diaries of former Prime Ministers Gillard and Rudd by saying those decisions did not make findings as to the "estimates of time and nature of diary entries involved", whereas, in the present case Justice Jagot was unconvinced by the estimates of time and work "having regard to the actual diary extracts available":

"To my mind the most important fact in the present case is that the request relates to about eight months of diary entries totaling 1930 individual entries and each entry will have to be examined by someone within the Attorney-General’s Office with sufficient knowledge about the operations of that Office and clear instructions about the FOI Act. I am aware that the Information Commissioner has considered requests for diaries involving much shorter periods of time and has concluded that there would be a substantial and unreasonable interference of the required kind. For example, in Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 requests for access to three months of former Prime Minister Rudd’s diary (1500 entries) and one month of Prime Minister Gillard’s diary (500 entries) were both found to constitute substantial and unreasonable interferences with the Prime Ministers’ functions. The reasons of the Information Commissioner, however, did not disclose the quality of the material relating to the estimates of time involved which was before the Information Commissioner nor (perhaps critically) the nature of the diary entries. In the present case, for the reasons given, I find the estimates of the work and time involved unconvincing having regard to the actual diary extracts available."

Attorney General Indicates Appeal Against Decision

This morning (21 January 2016) the ABC News has reported that:

"Federal Attorney-General George Brandis is appealing against a tribunal decision forcing him to reconsider handing over his electronic diary to his Opposition counterpart [the Shadow AG]."

The ABC News reports a spokeswoman for the AG as saying that the AG had instructed that the appeal be lodged because:

"The AAT has made findings which have 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."

In response, the shadow AG is reported as saying that the fight against releasing the diary was ". . . an extraordinary waste of public money" and that the AG was trying to set an "appalling precedent" by blocking access to his diary; indicating that access went to basic propositions of "accountability and transparency in Government".

In a further report on the matter, the ABC News reports that former Federal information commissioner John McMillan (now the acting NSW Ombudsman), is calling for an overhaul of the FOI processes as a result of the Federal Court Appeal in the ". . .long-running legal battle over access to the diaries of Attorney-General George Brandis".

Mr McMillan is quoted as saying that:

". . . [the] FOI laws had become a political plaything at public cost and it was time Federal Parliament followed the lead of other governments to bring them back to their original purpose".

In Mr McMillan's view the two-year battle in this case over access to the diaries could have been avoided if FOI disclosure rules were better:

"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, . . "

As an an example of how things might work better, Mr McMillan is reported as suggesting that Federal Cabinet ministers be required to ". . . regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers".

It will be interesting to see what comes of the Federal Court Appeal and even more interesting to see if the legislature actually moves to return FOI to its real purpose of making government information readily available rather than being a way of avoiding its release.

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