FOI conclusive certificates conclusively abolished by new Bill

By Caroline Bush and Avinesh Chand.

Key Points:
The Administrative Appeals Tribunal will be able to conduct full merits review of any claims for an exemption.

The Federal Government has acted on its election promise to promote a culture of open government by introducing a bill in Parliament to remove conclusive certificates as a barrier to the granting of access to documents pursuant to freedom of information applications.

The FOI Act currently provides a Minister with the power to issue a certificate which conclusively establishes that a document is an exempt document where the Minister is satisfied that one or more of the exemptions apply (those being in relation to national security, defence, international relations, relations with States, cabinet documents, executive council documents and internal working documents).

In reviewing a FOI decision, the Administrative Appeals Tribunal is currently limited to considering whether reasonable grounds exist for the Minister's claim in the conclusive certificate that the exemption applies rather than undertaking a full merits review and considering whether the exemption applies to the particular document(s) in question.

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 removes the power of a Minister to issue a conclusive certificate in respect of a document as well as the limit on the review powers of the Tribunal in relation to cases where a conclusive certificate is issued.

What happens to conclusive certificates and the documents they cover?

As we noted back in July, the Government had committed itself to abolishing conclusive certificates. The Bill achieves this aim by providing that no more certificates can be issued, and that existing certificates will be revoked from the time the first request for access to the document covered by the certificate is made.

As noted above, under the Bill, a Minister's power under the FOI Act to issue a conclusive certificate in respect of certain types of documents exempting them from release is removed. The change will mean that conclusive certificates cannot be relied on by a decision-maker when considering a FOI application.

Further, when reviewing FOI decisions, the Administrative Appeals Tribunal will be able to subject all exemption claims made in relation to documents to a full merit review rather than being restricted, in the case where a Minister issues a conclusive certificate in respect of particular documents, to considering whether there exist reasonable grounds for the claim of exemption the subject of the conclusive certificate.

When reviewing FOI decisions relating to Australia's security, defence, international relations, confidential foreign government communications or cabinet documents, only presidential members of the Tribunal may conduct the review.

Given the sensitivity of documents relating to Australia's security, defence, international relations or confidential foreign government communications, the Bill requires the Tribunal, before deciding that a document is not exempt, to request the Inspector General of Intelligence and Security to give evidence on whether giving access to the relevant documents would divulge confidential government communications or the damage that could reasonably be expected to be caused to Australia's security, defence or her international relations if the documents in issue were released. It is not however bound by the Inspector-General's opinion.

If the Tribunal orders access, and the Minister or agency appeals that decision, the decision is stayed pending the resolution of the appeal.

Third party notification

The next major change affects a Minister's or agency's notification obligations.

Currently, if

• an application is made to access documents relating to a third party's business or similar affairs or documents containing personal affairs, and
• the Tribunal is then asked to review a decision to refuse access,

the Minister or agency must notify that third party of the application for review.

The Bill will now allow the Tribunal to waive that requirement if it would not be appropriate in the circumstances - for example, if the document contained information about a criminal investigation into the third party.

The intelligence anomaly

Currently, an agency is exempt from the operation of the FOI Act in relation to a document which is in its possession and which has originated with, or has been received from, the listed intelligence agencies and the Inspector-General.. Curiously however, a Minister in the possession of the same document is not exempt from the operation of the FOI Act in relation to that document. The Bill fixes this anomaly.

What's next?

The Bill has been referred to the Senate's Finance and Public Administration Committee for inquiry and report by 10 March 2009.

Further changes are on the way. A draft bill addressing the remaining FOI commitments, including the establishment of an FOI Commissioner, will be released next year.

For further information, please contact Caroline Bush and Avinesh Chand.