Application for review of the FOI decision to the A-G’s department

Pursuant to section 54 of the Freedom of Information Act 1982 I seek a review of the decision made by Ms Rachel Antone on 18 May 2007 in relation to my FOI application of 13 December 2006.

Material Requested

1. I request to releasing the documents with respect of:

(1) ‘the standard methods applied to … the “technical assessment” of “public importance” (“constitutional significance”) of this matter and,’

(2) ‘the reasons of the decision in terms of not intervening in this matter’;

Obviously, document (1) is a manual, guideline or policy with respect of “the technical assessment”, document (2) is the reasons of the decision in response to our Notices of a Constitutional Matter certified by the High Court to the Attorney-General. Ms Antone did not clarify whether both documents (1) and (2) exist or not. I believe it ought to be specifically clarified at first. Then, if they are existent, I have applied to access these documents, not other documents.

Material Found

2. Ms Antone listed two documents in response to my request:

(a) Letter dated 27 April 2006 to Mr James Faulkner, Mr Robert Cornall AO and other recipients from Iain Gentle and Andrew Buckland of Australian Government Solicitor,

(b) Submission dated 13 September 2005 to the Attorney-General from James Faulkner-Assistant Secretary, Constitutional Policy Unit of Attorney-General’s Department;

In her email of 29 May 2007, she wrote: “we interpreted your request as broadly as possible”. I did not want my request to be interpreted as broadly as possible, particularly considering both of the accessibility and the costs. Therefore, her interpretation is wrong. She failed to try to contact me and to verify whether her interpretation was wrong.

Issues arouse from the difference between Material Requested and Material Found

3. It seems that Ms Antone uses document (a) for the purpose of document (2) and document (b) for the purpose of document (1). However she concludes that both documents (a) and (b) are legal advices.

4. Ms Antone failed to clarify whether both documents (1) and (2) existed, whether she listed all of the documents, which were relevant to my request, and whether she could release parts of documents (a) and (b), which are not legal advices anymore, in response to my request.

Issues with respect of Ms Antone’s “Findings on Material Question of Fact”

5. If assuming there are no specific documents (1), (2) and other relevant documents except both documents (a) and (b), I only request to access both of the reasons of the decision and the policy or guideline for making '“technical assessment” of “public importance” (“constitutional significance”) of this matter' no other parts of documents (a) and (b). Put another way, if document (a) contains other information other than the reasons of the decision, I only require the reasons of the decision in document (a), no other information; if document (b) contains other information other than the policy or guideline for “the technical assessment”, I only request to the policy or guideline in document (b) no other material, which Ms Antone found irrelevant to my request.

6. Further, once the information in document (a) becomes “the reasons of the decision”, it is not legal advice anymore even though it is based on legal advice. Once the information in documents (b) becomes the police or guideline, it is not legal advice anymore even though it is based on legal advice. Section 7.2.5 of the Freedom of Information Memorandum no 98 (the FOI Memorandum) provides:

“Implementation of a decision once it has been made is not part of the deliberative processes of an agency or Minister as there is no further consideration required of that matter (Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (D384))”.

Issues with Respect of Ms Antone’s “Material on Which Those Findings Are Based”

7. Ms Antone failed to clarify whether some parts of material in both documents (a) and (b), which I did not request, had caused her concerns in relation to “legal advice”. I have not requested any “legal advice”, therefore, could not understand why she only looked at legal advice. She failed to identify where both of “the reasons of the decision” and “the final decision making policy” were. If both of “the reasons of the decision” and “the final decision making policy” are in documents (a) and (b), she failed to clarify why she believe, against both section 7.2.5 at [6] above and section 13.4 at [13] below of the FOI Memorandum, that both of “the reasons of the decision” and “the final decision making policy” ought to maintain as “legal advice”.

Issues in Relation to Ms Antone’s “Reasons for Decision” under the FOI Memorandum

(i) No presumption that deliberative process material (legal advice) is exempt

8. Section 1.1- The Aims and Philosophy of the FOI Act

1.1.7:

“The starting point for an agency dealing with an FOI request should be that an applicant has a right to obtain the requested material. Decision makers must ask themselves whether there is any real sensitivity in the information in that disclosure could reasonably be expected to harm important governmental interests or the personal or business affairs of third parties. It is only then that an agency should start to consider the application of the exemptions, if any, or any other provision in the FOI Act that may have an effect on access to documents”;

9. Section 7 - Section 36 – Deliberative Process (Internal Working) Documents

7.1.3:

“…… It is not necessary for a decision maker to be satisfied that disclosure is in the public interest (Re Burns and Australian National University (D26), and Re Corr and Department of Prime Minister and Cabinet (D340)). Neither is it sufficient that there is little public interest. The test is whether disclosure would be contrary to the public interest (Re Sutherland Shire Council and DISR and DOFA (D499)). There is no presumption that deliberative process material is exempt”;

10. Division 13 Section 42 Legal Professional Privilege

Section 13.2 - Elements of the privilege

13.2.4:

“By the terms of a Cabinet decision made in March 1986, agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information (see Brazil direction and New FOI Memorandum No 26). The phrase real harm distinguishes between substantial prejudice to the agency's affairs and mere irritation, embarrassment or inconvenience to the agency”;

11. Section 1.6.2 'Would or could reasonably be expected to':

“…… The decision-maker must have real and substantial grounds for the expectation that harm will occur for which, when looked at objectively, articulate and acceptable reasons exist (Attorney-General's Department v Cockcroft (D131); Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (D294)) and must not rely on grounds which are merely speculative, imaginable or theoretically possible”.

12. Ms Antone failed to ask herself a question as to “whether there is any real sensitivity in the information” or, at least, she did not indicate that she did the “real harm” test let alone provided any “real and substantial grounds”, which “could reasonably be expected to harm important governmental interests”. She even failed to provide any “grounds which are merely speculative, imaginable or theoretically possible”.

(ii) Implied waiver of privilege

13. Section 13.4 Waiver of privilege:

“…… In Bennett v Australian Customs (D501) the Full Court of the Federal Court held that disclosure of the conclusions provided in legal advice, even without disclosure of the reasoning supporting those conclusions, could still result in an implied waiver of privilege if disclosure included the effect of the legal advice”.

We have been advised the conclusion that the Attorney-General did not intervene in the matter. Ms Antone failed to consider the “implied waiver of privilege”.

(iii) Severance of the documents

14. Section 13.5 Severance:

“If only part of a document contains material which is privileged under s 42, s 22 requires disclosure of the part which is not privileged from production (see Waterford v Commonwealth of Australia)”.

We did not request the documents listed by Ms Antone. We have requested the reasons of the decision and the final decision making policy. Ms Antone failed to sever and disclose “the part which is not privileged from production” from both documents (a) and (b).

(iv) More factors in favour of disclosure

15. Section 7.6.2 Factors in favour of disclosure:

• “it will always be relevant to consider the general public interest in government-held information being accessible, and this in itself may be enough to outweigh an exemption claim that is not strongly established on the facts (Arnold v Queensland (D189)). Applying this factor in the balancing process is far more than a formality. A decision maker must weigh the degree of impairment of the democratic objectives of the Act resulting from non-disclosure of the specific documents against the specific adverse effects of disclosure on the governmental or other interests protected by the exemption. Release, for example, of deliberative process documents will often enhance the democratic process, and that should be given serious weight in considering whether the adverse effects of release should lead to the documents being withheld.
  
• making the public better informed and promoting discussion of public affairs (Commonwealth of Australia v John Fairfax & Sons Limited);
  
• that there is a serious interest of the community in an issue dealt with in the documents sought, and it is not a matter of mere curiosity (British Steel Corporation v Granada Television Ltd (1980) 3 WLR 774);
  
• where disclosure of a document would disclose the reasons for a decision, thus enhancing scrutiny of government decision making processes and improving accountability and participation (Re Swiss Aluminium and Department of Trade (1985) 9 ALD 243 (D120));
  
• the public interest in a person having a right of access to their personal records or to documents containing decisions which affect them (Re Boehm and Department of Industry Technology and Commerce (D55); Re Kamminga and ANU (D290));
  
• contributing to the public's right to participate in and influence the processes of government decision-making and policy formulation on an issue of concern to them, whether or not they choose to exercise the right (Re Eccleston and Department of Family Services and Aboriginal and Torres Strait Islander Affairs);
  
• where disclosure would contribute to adequate debate on a matter of public concern, particularly where some of the material in the documents is already public knowledge and disclosure would complete the picture of what is known about a matter (Easdown v Director of Public Prosecutions (unreported Supreme Court of Victoria decision, 21 October 1987));
  
• where the information will assist in reaching a valid conclusion for publication; where disclosure would reveal whether or not a there had been a proper investigation of a matter. It has been held to be in the public interest to expose the way an agency establishes its disciplinary tribunals and chooses personnel for them (Re Marr and Telstra Corporation Ltd (D320))”;

Public Interest and Waiver of the Application Fee

16. The FOI request is for a petition to the Senate as outlined in my previous letter to Ms Antone. The petition is for the interest of all Australian workers’ fundamental constitutional rights to obey law at work, a principle which has been enacted in the Australian Constitution for more than 100 years. It is relevant to millions of workers, including the staffs in Attorney-General’s Department, their families and the society, which operates under the rule of law. Thousands people, many organizations and politicians have supported the petition against a case law made by a Full Federal Court, from which both of the Notices of a Constitutional Matter to Attorney-General and the petition aroused. Under the case law made by the Full Federal Court all Australian workers have no legal right to uphold and obey laws at work at all, i.e., they can not say no to unlawful instructions and activities at work because the case law declares that the workers, who have complained about their bosses’ unlawful instructions and activities and then been terminated, have no right to claim unlawful retaliatory dismissals if they had not complained about their bosses’ unlawful instructions and activities to “a Court or Tribunal” before the terminations of their employments. However, in normal circumstances, there is no law to allow workers to file complaints against their bosses’ unlawful instructions and activities to a court or tribunal previous to the terminations of their employments.

17. Sections 1.6.3.1.2 to 1.6.3.1.4 of the FOI Memorandum provide:

• “The public interest has been described as something that is of serious concern or benefit to the public, not merely of individual interest (British Steel Corporation v Granada Television Ltd ). It has been held that public interest does not mean of interest to the public but in the interest of the public (Johansen v City Mutual Life Assurance Society Ltd).
  
• Accordingly, to conclude that on balance disclosure of information would be in the public interest (or not contrary to the public interest) is to conclude that the benefit to the public at large resulting from disclosure outweighs the benefit to it of withholding the information. It may be relevant to that conclusion that there is a serious public debate about, or concern with, the issues with which the requested documents deal.
  
• In arriving at the balance of public interest in a particular case, it may be necessary to consider the interests of a substantial section of the public as a factor to be weighed. As an example in another field, in Sinclair v Mining Warden of Maryborough, the High Court held that the interests of the residents of Fraser Island were the interests of a substantial section of the public”.

18. Ms Antone advised me that the application fee could be waived for reason “that release of the documents is in the general public interest or the interest of a substantial section of the public”. According to abovementioned reasons I seek a waiver of the application fee.

19. The backgrounds of the petition, the petition, our local MP, Ms Marsha Thompson MP’s, supportive letter, my email of 28 May 2007 to Ms Antone are attached.