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Refusal of FOI access in case of internal working document

Refusal of FOI access in case of internal working document

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland.

Introductory note This precedent is a refusal of FOI access in case of internal working document. Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names. The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act).

State and territory Acts are:

• Freedom of Information Act 1989 (ACT);

• Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW);

• Right to Information Act 2009 (Qld); • Freedom of Information Act 1991 (SA);

• Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

Meaning of "conditionally exempt"

Commonwealth

A document is conditionally exempt if it falls within one of the categories set out in Part IV Division 3 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act): section 4. These categories all relate to what are commonly called "public interest conditional exemptions". An agency or Minister must give access to a conditionally exempt document unless in the circumstances access to it at a particular time would be, on balance, contrary to the public interest: section 11A(5). There is a divergence of opinion in the High Court on whether the "public interest" is a multifaceted concept or not. The question, however, is whether disclosure "on balance" would be contrary to the public interest. This requires a decision whether the degree of adverse effect outweighs any benefit to the public arising from disclosure. A document containing information which, if disclosed, could undermine public interest (for example, the health system) would be one contrary to the public interest to disclose. Factors not to be taken into account in deciding the public interest question include whether (section 11B(4)):

• (government embarrassment) access to the document could result in embarrassment to, or loss of confidence in, the Commonwealth or Norfolk Island Governments;

• (potential misinterpretation) access to the document could result in any person misinterpreting or misunderstanding it;

• (author seniority) the document's author was or is of high seniority in the agency; and

• (confusion) access to the document could result in confusion or unnecessary debate.

Factors favouring access in the public interest under the Cth FOI Act include whether it would (section 11B(3)):

• promote the objects of the Cth FOI Act;

• inform debate on a matter of public importance; • promote effective oversight of public expenditure; and

• allow a person to access his or her own personal information.

States and territories

State and territory laws do not make provision, as such, for documents to be “conditionally exempt”. Often, though, a document is exempt under a state or territory law if it is of a particular kind and its disclosure would not be in or would be contrary to the public interest.

Australian Capital Territory: Under the Freedom of Information Act 1989 (ACT) some documents (eg those affecting personal privacy: section 41) are exempt but others (eg internal working documents: section 36) are exempt only if they satisfy certain requirements and their disclosure would be contrary to the public interest.

Northern Territory: Under the Information Act 2002 (NT) section 50(1) government information mentioned in Part 4 Division 3 (eg deliberative processes: section 52) is exempt only if it can be shown in a particular case it is not in the public interest to disclose the information. Criteria for determining this are set out in section 50(2).

New South Wales: Under the Government Information (Public Access) Act 2009 (NSW) section 5 there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. There is a general public interest in favour of the disclosure of such information (section 12(1)) but there is a conclusively presumed overriding public interest against disclosure of the government information set out in Schedule 1 (section 14(1)).

Queensland: Under the Right to Information Act 2009 (Qld) section 48(1), if an access application is made for a document, access must be given unless disclosure would, on balance, be contrary to the public interest. But, by section 48(2), Schedule 3 of the Act sets out the types of information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest. Schedule 3 clause 3 lists, for example, Executive Council information.

South Australia: Exempt documents under the Freedom of Information Act 1991 (SA) are listed in Schedule 1. Several of these are exempt (eg documents communicated by another government: clause 3) but others are exempt (eg documents affecting business affairs: clause 7) only if their disclosure would, on balance, be contrary to the public interest.

Tasmania: A similar distinction is drawn by the Right to Information Act 2009 (Tas). Part 3 Division 1 of that Act lists exemptions which are not subject to any public interest test and are not liable to be disclosed. But Division 2 lists exemptions which are subject to that test. Matters irrelevant in deciding if disclosure of information is contrary to the public interest are set out in Schedule 2. For example, that the disclosure would cause a loss of confidence in the government: clause 1(c).

Victoria: Similarly some documents under the Freedom of Information Act 1982 (Vic) are unconditionally exempt (eg Cabinet documents: section 28) while others are only exempt if their disclosure would be contrary to the public interest (eg internal working documents: section 30). A general provision on disclosures contrary to public interest exists in section 36.

Western Australia: The Freedom of Information Act 1992 (WA) Schedule 1 provides that certain matter is exempt unconditionally (eg Cabinet and Executive Council: clause 1) but other matter (eg personal information, clause 3) is not exempt if its disclosure would on balance be in the public interest while yet another matter (eg deliberative processes: clause 6) is exempt only if its disclosure would on balance be contrary to the public interest.

Internal working documents and deliberative processes

Commonwealth

Internal working documents, as they were known, are conditionally exempt under the Cth FOI Act.

That is to say, a document is conditionally exempt if it would disclose 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 involved in the functions of an agency or Minister or the Commonwealth Government or the Norfolk Island Government: section 47C(1) (formerly section 36(1)(a)).

A document falls within this description if it would disclose the "thinking process" (ie deliberative process) of the agency or Minister. The courts have described this as "the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action". Or "internal thinking". It is usually not appropriate for this reason to release a draft or incomplete document. The relevant opinion, advice or recommendation must have been acquired or procured in the course of, or for the purposes of, the deliberative processes in question — it is not enough that it was received if it was not sought either explicitly or implicitly.

Exceptions: Internal working documents do not include operational information (see section 8A) or purely factual material: see section 47C(2) of the Cth FOI Act. There are also certain exceptions under section 47C(3), including reports of scientific or technical experts.

States and territories

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) section 36 is to the same effect as the Cth FOI Act. One exception not found in the latter is the record or formal statement of the reasons for a final decision given in the exercise of a power or of an adjudicative function: section 36(4)(c).

Northern Territory: Essentially the same provision appears in the Information Act 2002 (NT) section 52. By section 52(4) information older than 10 years is not exempt from disclosure.

New South Wales: The Government Information (Public Access) Act 2009 (NSW) contains no direct equivalent to the provision in section 47C of the Cth FOI Act. That is not to say, however, that the same result may not be reached in one of the various exemptions mentioned in Schedule 1 which refer to information for which there is a conclusive presumption of overriding public interest against disclosure, eg Executive Council information.

Queensland: The same may be said of the Right to Information Act 2009 (Qld) as regards exempt information in Schedule 3.For example — information briefing an incoming Minister, which is exempt from disclosure for 10 years. South Australia: The Freedom of Information Act 1991 (SA) Schedule 1 contains a clear exemption from disclosure of internal working documents. To fall within the exemption, however, the disclosure must be, on balance, contrary to the public interest.

Tasmania: Internal briefing information of a Minister is exempt from disclosure under the Right to Information Act 2009 (Tas) section 27. The exemption lasts only 10 years: section 27(2).

Victoria: Internal working documents are excluded from disclosure in similar terms to the Cth FOI Act under section 30 of the Freedom of Information Act 1982 (Vic), but only if disclosure would be contrary to the public interest. In Secretary to the Department of Justice v Osland the public interest considerations underlying the public interest in this regard were held to include "the efficient and economical conduct of Government, protection of the deliberative processes of Government, particularly at high levels of Government and in relation to sensitive issues, in the preservation of confidentiality so as to promote the giving of full and frank advice." Obviously there may be public interest factors related to transparency and clearing the air, but these may well be outweighed by the harm that could be done to the effective operation and supervision of an agency by government in allowing a specific disclosure. In short, the public interest is a matter in which the public at large has an interest, as distinct from the interests of a particular individual or individuals. The Act refers to deliberations etc between "officers" and others and officers include consultants or independent contractors.

Western Australia: Deliberative processes are excluded from disclosure under Schedule 1 of the Freedom of Information Act 1992 (WA) if disclosure of them, on balance, would be contrary to the public interest. The exemption lasts 10 years.