Internal working documents and FOI

By Brendan Bateman and Trisha Cashmere.

Key Points:
Courts and tribunals have rarely adopted the Howard factors as determinative of the public interest test.

An issue which regularly arises under freedom of information ("FOI") laws is whether internal working documents, which are exempt from FOI on the grounds that their disclosure would be contrary to the public interest. For the last 20 years, that Howard and the Treasurer (1985) 7 ALD 645.

A recent decision by the New South Wales Court of Appeal, General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, has clarified the circumstances when a document may be exempt from disclosure under the internal working documents exemption of the Freedom of Information Act 1989 (NSW) ("FOI Act"). In the process, the Court sought to put in context criticism of the approach of the Federal Court in Re Howard which considered the equivalent exemption (section 36) under the Commonwealth’s Freedom of Information Act 1982 ("Cth FOI Act").

In Re Howard, Justice Davies said that when considering the application of the public interest test when the internal working documents exemption is relied on:

"the whole of the circumstances must be examined, including any public benefit perceived in the disclosure but that:  

(a) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;

(b) disclosure of communications made in the course of the 11 development and subsequent promulgation of policy tends not to be in the public interest;

(c) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;

(d) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;

(e) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process [emphasis added]."

WorkCover v Law Society NSW – the current state of the law

In WorkCover v Law Society of NSW the Court of Appeal held that:

• the basic premise of the FOI Act is that there is a public interest in the public having access to government information;
• determining whether the disclosure of documents would be against the public interest requires the decision-maker to balance the public interest in citizens being informed of the processes of their Government and its agencies on one hand, against the public interest in the proper working of Government and its agencies on the other;
• the operation of the internal working documents exemption should not be constrained by rigid rules. In doing so, the Court upheld the decision to reject the resolution of the public interest test by a formulaic recourse to the Howard factors as contended for by WorkCover; and
• it was relevant to consider the "tangible harm" that would flow from the disclosure of the content of the documents sought.

So, a change or not?

It is apparent that there has been no fundamental change in approach to the internal working documents exemption and, in particular, judicial consideration of the public interest test component of that exemption. Some earlier authorities may have paid undue weight to the Howard factors in finding that the public interest was against disclosure, but since the late 1980s the consistent view has been that a flexible approach must be taken.

For further information, please contact Brendan Bateman.