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Recent Cases: Commonwealth

The Hon Mark Butler MP and Prime Minister of Australia (Freedom of information)[2022] AICmr 46 (6 April 2022)

 

Facts 

The Hon Mark Butler MP (“applicant”) applied to the Prime Minister for access under the Freedom of Information Act 1982 (“FOI Act") to documents that referenced:

 

  • travel costs incurred by a council over a time period;
  • a council’s Annual Report for a particular year; or
  • Claims by a Federal Minister relating to travel by the Council during that timeframe; 

these were to include

  • Talking points prepared by the Prime Minister’s Office and/or the Federal Minister over two specified days;
  • Responses to media inquiries inclusive of email and text messages; and
  • Records of communications with the Federal Minister including emails, text messages and messages using encrypted messaging apps.

 

Following the s 24AA(1)(a)(ii) requirements, the Prime Minister’s office issued a request consultation notice under s 24B, advising the applicant that it intended to refuse the request because processing it would both substantially and unreasonably interfere with the performance of the Prime Minister’s functions.  The applicant was invited to advise whether they wished to withdraw the request, make a revised request or state that they did not wish to revise the scope.  In response the applicant advised that they did not wish to revise the scope of the request.

 

The Prime Minister was deemed to have refused the applicant’s request as the decision was not made in the statutory period.  Therefore, the applicant sought review by the Information Commissioner (“Commissioner”) of the Prime Minister’s deemed access refusal, under s 54L of the FOI Act.

 

After the review was commenced, the Prime Minister made the decision under s 24(1) that processing the request would substantially and unreasonably interfere with the performance of the Prime Minister’s functions.  The applicant continued with the Commissioner review.

 

Reasoning 

 

The issues before the Commissioner were whether:

  1. The Prime Minister undertook consultation processes accordingly with s 24AB; and
  2. A practical refusal reason existed under s 24AA(1)(a)(ii) of the FOI Act.

 

Refusing access for a practical refusal reason – s 24

 

The agency or Minister has the onus of establishing the decision was justified in an access refusal decision. 

 

Does a practical refusal reason exist? - s 24AA(1)(a)(ii)

 

The Commissioner needed to be satisfied that the work involved in processing the request would be a ‘substantial and unreasonable’ interference in the performance of the Prime Minister’s functions.

 

The practical refusal consultation notice stated that this would be the case, as the FOI request was broadly defined. As the Prime Minister is “head of the national government” processing the request would be a “significant challenge to the day-to-day execution of his duties”, and this was considered in making the decision.

 

The applicant argued that insufficient detail had been provided and the notice did not outline how many documents fell within the scope; the steps taken to determine the number of documents or an estimation of how much time the request was likely to take to process.  The lack of detail was why the applicant decided not to revise the scope of the request.

 

The Prime Minister’s Office gave evidence on processing the request, which would require not only extensive inspection of the files and electronic communications of the Prime Minister, but a minimum of 50 hours to process.

 

The Commissioner took into consideration the estimated time to process the request as submitted by the Prime Minister and was satisfied that the “at least 50 hours” meets the definition of “substantial” for the purposes of the section. 

 

The Commissioner also agreed that the Prime Minister, being the head of the national government, has a busy schedule and “extensive commitments”. 

 

However, despite requests, the Prime Minister’s Office did not provide evidence on the following:

  • No estimate to the number of the documents that might fall in the scope of the request;
  • No indication to whether a sampling exercise was undertaken; and
  • No indication to how many third parties that would need to be consulted and how long it would take.

Therefore, the Commissioner was not satisfied that the Prime Minister's Office was able to provide a reasonable estimate of the processing time. 

 

Held 

The Commissioner was not satisfied that the Prime Minister had discharged the onus to justify that a practical refusal decision exists in relation to the request.  For that reason, the Commissioner found a practical refusal decision to not exist. 

LHTT and Department of Foreign Affairs and Trade (Freedom of Information) [2022] AATA 429 (2 March 2022)

 

Facts 

LHTT (“applicant”) made a request to the Department of Foreign Affairs and Trade (“Department”) for access to documents under the FOI Act.  The applicant sought to access to:

 

“A copy of all country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes in relation to Bangladesh (country information)”. 

The applicant initially sought review by the Information Commissioner (“IC”) of the Department’s decision to impose charges for processing the request.  The parties made an agreement pursuant to s 55F of the FOI Act to waive charges for processing the request and to revise the scope of the request. 

The IC review was finalised in December 2017 when the IC made a decision to accept the parties’ agreement under s 55F of the FOI Act. 

The review then went to the Administrative Appeals Tribunal (“Tribunal”) after the IC decided not to continue to undertake a review of the Department’s response to the applicant’s request.  

This matter was heard by the Tribunal together with BKXP and the Department of Foreign Affairs and Trade[1](“BKXP”).  The Tribunal noted the reasons should also be read together.

 

Reasons

Document 2  

‘Document 2’ was described as a cable from the post on the security situation in Bangladesh.  It was claimed to be unconditionally exempt under s 33(a)(iii) of the FOI Act and in part unconditionally exempt under s 33(b) of the FOI Act.

Sections 33(a)(iii) and 33(b) are in the following terms:

                A document is an exempt document if disclosure of the document under this Act:

  1. would, or could reasonably be expected to, cause damage to:
  1. the international relations of the Commonwealth; or 
  1. would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

The Tribunal was satisfied Document 2 was exempt under both those provisions for the reasons given in BKXP.  Namely that the Department had implicitly or explicitly agreed to confidentially and this was a sufficient reason to keep the details in document 2, and similar documents secret. 

 

Document 3 

‘Document 3’ was described as notes of meetings with international organisations and foreign officials taken by Departmental officers during a trip to Bangladesh. It was claimed to be unconditionally exempt under ss 33(a)(iii) and 33(b) and conditionally exempt under ss 47E(d) and 47F(1). 

Section 47E(d) of the FOI Act provides that: 

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

  1. Have a substantial adverse effect on the proper and efficient conduct of the operations of an agency. 

Section 47F(1) of the FOI Act provides that: 

A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

 

The Tribunal acknowledged that risks to confidential sources by reprisals and other adverse consequences may well arise from the release of such records. 

The Tribunal noted that not only were ss 47F(1) and 47E(d) of the FOI Act engaged, it was clear that it was not in the public interest for the documents to be released.  

It found that although there were some respects in which it may be in the public interest for the public to know of the remarks made privately, it was overwhelmingly contrary to the public interest for the notes to be released (with or without express identification of the names of the sources).  The mere redaction of source names would not protect the sources from the risk that their identities might be apparent from the information itself. 

The Tribunal opined that it could ‘hardly be in the public interest’ for a communication involving Department officers intended only for consumption within the Department, dealing with sensitive private discussions to be publicly released. 

Section 33(a)(iii) of the FOI Act was also engaged in relation to confidential source material including Document 3.  No public interest questions arise in relation to that exemption.

 

Draft reports 

All draft reports were claimed to be exempt under ss 47C and 47E(d) of the FOI Act, amongst other grounds. 

Section 47C of the FOI Act is in the following terms:

                General Rule

  1. A document is conditionally exempt if its disclosure under this Act 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 in volved in the functions of:
  2. an agency;
  3. a Minister; or 
  4. the Government of the Commonwealth 

Exceptions

  1.  Deliberative matter does not include either of the following:
  2. operational information (see section 8A);
  3. purely factual material.

Note:      An agency must publish its operational information (see section 8)

  1. This section does not apply to any of the following:

 

  1. reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters;
  2. reports of a body or organisation, prescribed by the regulations, that is established within an agency; 
  3. the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function. 

Note:      Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A). 

The Tribunal rejected access to the draft reports for the same reasons as those expressed in BKXP, both as to the engagement of the exemptions and as to the public interest finding that from the earliest draft to the penultimate draft, they were documents of a deliberative nature. They were classified, a matter which is known to those who prepared them, and they had been progressively amended, supplemented and refined as they passed through the drafting process. Each draft was in effect a recommendation by its author or authors, intended to be submitted to others in due course for their consideration.

Documents commenting on the draft reports were also deemed exempt on the same grounds as BKXP – that it was not in the public interest to disclose.

 The Tribunal found that for the most part these documents bore a relationship to the draft Documents which were preparatory notes for the country reports were identified as 'Documents 22 and 23’. The Tribunal determined that they were like draft reports. The Tribunal added that their terms were not vetted like the terms of final country reports, and it is contrary to the public interest for them to be released. 

Accordingly, the Tribunal found that Document 22 was exempt under ss 47C and 47E(d) of the FOI Act and, as to part of it, under s 7(2A) of the FOI Act.  As Document 23 was similar to Document 22, the Tribunal found that it was also exempt under ss 47C and 47E(d) of the FOI Act.  Parts of Document 23 was also determined to be exempt under s 33(a)(iii) of the FOI Act.

 

Other documents: Document 25

 

The Tribunal found that names of personnel within Document 25 were exempt under s 47F(1) of the FOI Act. The Tribunal could see no public interest in revealing their identities in this document or any other document. The Tribunal noted it adopted a similar approach in BKXP.  

 

Held 

The Tribunal affirmed the Department’s decision.  

 

[1] BKXP and Department of Foreign Affairs and Trade (Freedom of Information) [2022] AATA 423 (2 March 2022)