FYI - FOI case notes

By Avinesh Chand and Alice Linacre.

Key Points:

Fisse and Department of Treasury [2008] AATA 288 - Cabinet documents and internal working documents

On 10 April 2008, the Administrative Appeals Tribunal (DP Walker) decided that the executive summary of a report prepared by a working party appointed by the Treasurer and submitted to Cabinet was exempt from disclosure pursuant to section 34 of the FOI Act. The Tribunal also found that the full report of the working party was exempt from disclosure pursuant to section 36 of the FOI Act.

The FOI applicant, Mr Fisse, sought access to documents comprising or constituting reports prepared by a working party appointed by the Treasurer in October 2003 to consider issues raised by a report of the Dawson Committee which had been appointed by the Treasurer in May 2002 to review the competition provisions of the Trade Practices Act 1974 and their administration.

The respondent decided that the executive summary of the working party report was exempt from release under sections 34(1)(a) and (c) of the FOI Act as it had been attached to a Cabinet submission that was presented to Cabinet for its consideration on 21 June 2004. The actual working party report was also found to be exempt from disclosure pursuant to section 34(1) of the FOI Act but this argument was abandoned at the Tribunal and an argument that the exemption at section 36 (internal working document) applied to the document was made instead.

The Tribunal found that for a document to be exempt under section 34(1), two requirements must be satisfied:

• the document must have been submitted to Cabinet or proposed by a minister to be so submitted; and
• the document must have been brought into existence for the purpose of submission for consideration by the Cabinet.

The Tribunal also found that the requirement of "purpose" applies both to the documents that have been submitted to Cabinet and to those that have been proposed by a minister to be so submitted. The time at which the document was brought into existence is the time at which the purpose must be ascertained. Consequently, the Tribunal found that if the document was originally created for a different purpose, the fact that it was subsequently decided to submit it to Cabinet did not bring it within the exemption.

The Tribunal found that the evidence before it clearly showed that the executive summary of the working party report was submitted to Cabinet.

The Tribunal noted the exchange of correspondence between the Prime Minister and Treasurer in relation to the establishment of the working party. In his letter to the Treasurer, the Prime Minister noted that the working party would report to the Treasurer by the end of 2003 and stated that the Prime Minister "look[ed] forward to cabinet considering the recommendations early in 2004". The Tribunal also noted evidence from an officer from the Cabinet Secretariat that where a working group was appointed by a Minister to assist the Minister in considering complex matters for discussion by the Cabinet, it was her experience that the executive summary of a report prepared by such a working party was attached to the Cabinet submission that was prepared on the issue regardless of whether the Minister supported all of the working group's recommendations.

The Tribunal found that the executive summary of the working party report had been brought into existence for the purpose of submission for consideration by the Cabinet and therefore was exempt from release pursuant to section 34(1).

In relation to the actual working party report which had not been submitted to Cabinet, the Tribunal found that the report had been created for the purpose of assisting the Government to deliberate on the question of criminalising serious cartel conduct and that as such, it was prepared in the course of, or for the purpose of the deliberative processes of a Minister, or of a Commonwealth agency, namely the Treasury.

In considering whether disclosure of the report would be contrary to the public interest as required by section 36(1)(b) of the FOI Act, the Tribunal noted that generally, disclosure of government information would help individuals to participate meaningfully in the democratic process through discussions on matters of law and policy and would also promote transparent and accountable decision-making in government.

However, in this case, the Tribunal noted the argument made by the respondent that disclosure of the working party report would disclose material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision. The respondent argued that disclosure of the working party report would breach the convention of Cabinet confidentiality, which is critical to the proper function of the executive and parliament of the Commonwealth and that even though the full report did not fall within the terms of section 34(1), the public interest would not be served by interfering with the convention of confidentiality applying to the deliberations and processes of Cabinet.

The Tribunal found that the working party report was inextricably involved with the Cabinet submission and that the public interest in the preservation of Cabinet confidentiality, "a fundamental in the operation of the Australian political institution of the collective, indirectly elected executive", outweighed the other public interest considerations favouring disclosure.

The Tribunal held that the working party report was exempt from release pursuant to section 36 of the FOI Act.

We understand that on 5 May 2008, Mr Fisse commenced proceedings seeking judicial review of the Tribunal's decision in the Federal Court.

Michael McKinnon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 161 - Internal working documents, documents relating to policy development

On 27 February 2008, the Administrative Appeals Tribunal (DP Forgie) decided that a document that had been determined by the Department in issue (FaCSIA) to be exempt from disclosure under the FOI Act pursuant to sections 33A(1)(a) and (b), 36(1)(a) and (b) and 40(1)(c)(d) of the FOI Act should be released to the applicant, Mr McKinnon, a journalist.

The documents in issue were created as a result of a consultancy process in which FaCSIA had engaged Edith Cowan University (ECU) to identify childcare needs and preferences of indigenous families and children as well as to provide guidance for the development of new and existing Indigenous childcare services.

ECU had provided FaCSIA with two documents – one described as a Draft Report dated May 2006 and the other prepared at a later time and bearing no reference to it being a draft. However, it was accepted that both documents were draft reports, no final report having been prepared by ECU.

Following the provision of the draft reports, FaCSIA terminated the consultancy without ECU providing a final report as FaCSIA was of the opinion that the draft reports failed to address all the requirements of the consultancy contract and went beyond the scope of the brief that ECU had been assigned.

Mr McKinnon sought access under the FOI Act to documents arising from the consultancy carried out by ECU to identify child across needs and preferences of indigenous families and children across Australia. The two draft reports were found to come within the scope of Mr McKinnon's request but were found by the Department to be exempt from release both at first instance and on internal review.

Before the Tribunal, FaCSIA argued, amongst other things, that the two documents were exempt from release under the FOI Act as release of the documents would disclose the internal working documents of the Department (section 36 of the FOI Act).

The Tribunal accepted that the two documents in question were prepared for the purposes of the deliberative processes of FaCSIA and that the documents contained matter in the nature of opinions, advice, recommendations and consultations. Accordingly, the Tribunal accepted that both documents came within the terms of section 36(1)(a) of the FOI Act.

The Tribunal then considered whether release of the two documents would be contrary to the public interest as set out in section 36(1)(b) and decided as follows:

• The Department had argued that if released, the two documents might mistakenly be regarded as reflecting the view of the Government when they were documents prepared by a consultant for the purposes of information and policy formulation and in circumstances where the consultant had gone beyond the scope of their brief in preparing the draft reports. The Tribunal found that "a right minded person reading the whole of the documents in the context of the tender document would not gain the impression that they represent government policy". The Tribunal found that the documents could not be read reasonably as positions adopted by FaCSIA or as information with which FaCSIA necessarily agrees with.
• The Department had argued that if the two documents were released, they could be used to build up hopes and expectations of the public that could not be met by the Government. The Tribunal found that it would be underestimating the Australian public to think that it would regard a report that had been commissioned by an agency as a final outcome. The Tribunal found that the Australian public "are realistic and stoical in their ability to separate a report from an independent body such as a university and its recommendations to government and from government and its decisions".
• The Department had argued that release of the two documents might affect the negotiating position of the Commonwealth as it might have to face arguments that its independent experts held a contrary view to its own. The Tribunal found that the two documents provided information relevant to an informed debate regarding indigenous child care and advice and recommendations that can be used to stimulate debate and that policy development can benefit from the stimulation that is provided by the disclosure of such debate.
• The Department had argued that disclosure of the two documents would threaten the trust that has been built up with indigenous communities as the information included in the two documents had been provided without the knowledge that it could be released to the public. The Tribunal found that the documents appeared to be written sensitively and in language which preserved the anonymity of the source of any information or opinion unless it came from a source such as the Commonwealth or State Government or from published material.
• The Department had argued that disclosure of the two documents would weaken the Commonwealth’s position as it will be seen as having negated its own consultant’s report. The Tribunal found that the fact that the Commonwealth has obtained a consultant’s report does not mean that it is wedded to the consultant’s views or even that it must flirt with them. The Tribunal noted that the States would have engaged consultants in the past and would have regarded the product in the same way.

Having had regard to the matters set out above, the Tribunal decided that disclosure of the draft reports would not be contrary to the public interest, save for one qualification. The Tribunal noted that the earlier of the two documents was clearly an incomplete draft of the later document. The Tribunal held that it would be, on balance, contrary to the public interest to give access to an incomplete draft of a document obtained from a consultant when what appeared to be its final version was available. As such, the Tribunal found that the first draft was exempt from disclosure under section 36 of the FOI Act but that the later complete draft was not.

For the reasons set out above, the Tribunal was not satisfied that disclosure of either documents would, or could reasonably be expected to cause damage to the relations between the Commonwealth and any of the States.

The Tribunal was also not satisfied that either of the documents was exempt from disclosure on the basis that there would be a substantial adverse effect on the proper and efficient conduct of FaCSIA’s operations or that such an effect could reasonably be expected to occur.

Young and Commissioner of Taxation [2008] AATA 155 - Secrecy provisions

On 26 February 2008, the Administrative Appeals Tribunal ( DP Hack and DP Dr McPherson) decided that certain documents sought by Mr Young under the the FOI Act were not exempt from release under section 38(1) of the FOI Act.

The FOI applicant, Mr Young, is an officer of the Australian Taxation Office. In his capacity as an officer, he was involved in a decision taken in 2003 to commence prosecution proceedings against a Brisbane solicitor, Mr Ian Collie, alleging breaches by Mr Collie of the Taxation Administration Act 1953. The prosecution was not successful.

In May 2005, Mr Collie commenced civil proceedings in the Supreme Court of Queensland against Mr Young and three other officials seeking damages, including "punitive, aggravated and exemplary damages" for malicious prosecution or misfeasance in public office. The Commonwealth undertook to indemnify Mr Young and the other defendants in relation to the costs of the proceedings and any judgment awarded. All defendants were represented by the same lawyers. However, Mr Young subsequently took the view that there was a conflict between his interests in the litigation and the interests of the other defendants and sought representation by different lawyers.

In May 2006, Mr Young made an application under the FOI Act for access to specific documents relating to a meeting of ATO officers, including himself, held in June 2003. It appears that Mr Young considered that such documents may be relevant to his case in the civil proceedings that Mr Collie had commenced.

Mr Young was refused access to some of the documents on the basis that section 38 of the FOI Act and section 16 of the Income Tax Assessment Act 1936 ("ITAA") operated to exempt those documents from release.

Amongst other things, section 38(1) of the FOI Act provides that a document is an exempt document if disclosure of the document, or information contained in that document, is prohibited under a provision of an enactment and that provision is specified in Schedule 3 of the FOI Act.

Included in the provisions specified in Schedule 3 of the FOI Act is section 16(2) of the ITAA, which provides that:

"Subject to this section, an officer shall not either directly or indirectly , either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1)".

Relevantly section 16(2A) of the ITAA provides that subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person’s duties as an officer.

Section 38(1A) of the FOI Act also provides that a person’s right of access under FOI Act is not affected merely because the document is an exempt document under section 38(1) if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

The Tribunal accepted that the exception at section 16 (2A) of the ITAA was applicable in relation to his FOI request as disclosure of the documents within the scope of his FOI application for the purposes of the defence of an ATO officer against allegations of improper exercise of power was an act done in the course of performing the duties on behalf of the Commissioner.

The Tribunal also accepted that "duties of an officer" ought to receive a wide interpretation, noting that courts had interpreted the phrase to include obligations arising at common law and in equity, including those of skill and care, fidelity and confidentiality – see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124.

The Tribunal noted that the Commonwealth had two interests at stake in the proceedings commenced by Mr Collie – rebutting allegations that its servants were guilty of malicious prosecution and misfeasance in public office, and, in doing so, protecting its financial interests. The Tribunal found that Mr Young, who it noted denied the allegation of wrongdoing made against him by Mr Collie, was under a duty, arising from his employment as an officer, to defend the proceedings in the interests of the Commonwealth.

The Tribunal noted that the documents that fell within the terms of the FOI request would ordinarily be exempt documents under s 38(1) of the FOI Act but were not in this case because of the combined effect of section 16(2A) of the ITAA and section 38(1A) of the FOI Act.

Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 (20 March 2008) - Exempt agency and commercial activities

On 20 March 2008 the Full Court of the Federal Court (Branson, Sundberg and Kenny JJ) upheld a decision of the Administrative Appeals Tribunal to affirm the delegate's decision not to grant access to documents that Mr Bell had sought access to under the FOI Act. The Tribunal affirmed the decision on the basis that the Commonwealth Scientific and Industrial Research Organisation (CSIRO) was exempt from the operation of the Act in relation to the documents sought.

The documents which Mr Bell had sought access to related to the research and development of wireless and Local Area Networks (LAN).

Section 7(2) of the Act exempts certain agencies from the operation of the Act. Under Part II of Schedule 2 of the Act the CSIRO is such an agency in relation to documents in respect of its commercial activities (which is defined at subsection 7(3) of the Act).

Mr Bell claimed that the Tribunal had wrongly extended the scope of the definition of commercial activities to include any activity connected with commerce. The Court held that the Tribunal had not erred in its analysis of the facts and application of the law in this respect.

Paragraphs 7(3)(a) and 7(3)(b) of the Act require different analyses of the activities being carried out. Paragraph 7(3)(a) sets out the test for exemption of whether at the time a document is received or brought into existence it has a commercial quality, in other words whether the agency is carrying on activities on a commercial basis in competition with persons other than the governments or authorities of governments. Paragraph 7(3)(b) allows for the consideration of a foreseeable future commercial quality. The Court held that the Tribunal correctly applied the law in relation to these provisions and came to conclusions of fact that were open to it. The Tribunal found that the documents were created at a time when it was reasonably foreseeable that CSIRO would conduct these activities on a basis that would see a return from the marketplace (paragraph 7(3)(b)), albeit that it was not satisfied that the documents were created at a time that the CSIRO was carrying on the activities and that therefore the documents were not exempt under paragraph 7(3)(a) of the Act.

The Court rejected an argument that subsection 7(3) of the Act should be read in light of section 43A and the objects of the Act. Section 43A provides an exemption for a research document. The Court upheld the Tribunal's finding that the provisions were separate and discrete and could not derive assistance from each other in terms of interpretation. Further, the Court held that the objects of the Act were constrained by the exemptions set out within the Act and that the right of access does not accord precedence to access over exemption.

The CSIRO contended that even if the Tribunal's findings in respect of paragraph 7(3)(b) were in error the Tribunal should have been satisfied that paragraph 7(3)(a) was satisfied. The Court could find no error in the Tribunal's analysis or findings in this regard.

Finally, it is interesting to note that the Court made a concluding comment as to the Tribunal's consideration of the somewhat difficult decision in Australian Broadcasting Corporation v The University of Technology, Sydney (2006) 154 FCR 209. In that case, the Court had held that subsection 7(2) of the Act requires that a relevant agency is exempt from the operation of the FOI Act 'in relation to' the documents mentioned in Schedule "in relation to them". In this case, the Court stated (in obiter) that the additional words of "in relation to" was not intended to add a further qualification to the exemption. However, as was noted the effect of this case did not ultimately have any bearing on this case.

For further information, please contact Avinesh Chand and Alice Linacre.