Email of 28 May to A-G’s Department for FOI

Dear Ms Antone,

As per telephone conversation on Thursday, 24 May, I have received your decision, which is refusing to release the documents in respect of ‘the standard methods applied to … the “technical assessment” of “public importance" (“constitutional significance”) of this matter and the reasons of the decision in terms of not intervening in this matter’; which are defined by you as:

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;

I have difficulties to understand your reason for the decision; if you can further explain your reason in detail, it may clarify my doubts or confusion, and avoid a review of your decision.

I have tried to understand your reason: ‘The material is an exempt from disclosure under subsection 42(1) of the Act (the Freedom of Information Act 1982). Subsection 42(1) states: “(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”’. Therefore, I read the Australian Law Reform Commission’s report 77: “Open government: a review of the federal Freedom of Information Act 1982” (the Report), relevant sections of the Act and Queensland Law Society Inc and Legal Ombusman [1998] QICmr 4 (24 June 1998); (1998) 4 QAR 328 (the Decision)

My doubts are:

1. At section 8.2 of the Report: it states:

“The starting point for an agency dealing with an FOI request should be that the applicant has a right to obtain the requested material”. (section 11 of the Act)

At section 8.3 of the Report, it states:

“Agencies are not obliged to withhold exempt documents. Section 18(2) (of the Act) gives them a discretion to release a document even if it technically falls within an exemption. In most cases, to release an exempt document would not be appropriate because the very fact that it is exempt indicates that there is a good reason not to disclose it. However, there will sometimes be situations in which no adverse consequences would flow from a document's release, despite the fact that it falls within the bounds of an exemption provision. In these situations, agencies should exercise their discretion to release exempt documents. It is important that agencies understand and exercise this discretion as it is a means by which they can give practical effect to the spirit of the FOI Act.” (bold added)

You have not provide any “adverse consequences” which will “flow from” the documents’ “release”. I am unable to image any adverse consequnes would flow from the documents’ release.

2. Subsection 42(2) of the Act provides:

“A document of the kind referred to in subsection 9(1) is not an exempt document by virtue of subsection (1) of this section by reason only of the inclusion in the document of matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in subsection 9(1)”.

Subsection 9(1) of the Act provides:

“This section applies, in respect of an agency, to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;"

It is clear that the document (b) above, “Submission to the Attorney-General”, is the document referred to by subsection 9(1) of the Act. It is a guidelines, practices or precedents. I has asked for 'the standard methods applied to … the “technical assessment” of “public importance" (“constitutional significance”) of this matter'. It is a policy document not for the sole purpose of a particular legal proceeding. Further, subsection 3(1)(a) of the Act provides:

“(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices” (bold added).

I will appreciate it if you are able to refer to this subsection of the Act.

3. I have asked for “the reasons of the decision in terms of not intervening in this matter” not the document (a) above. You did not clarify whether “the reasons” was only in the document (a) above. If that is the case I only need “the reasons”, on which “the decision” was made, not other parts of the document (a) above. Further, subsection 3(1)(b) of the Act provides:

“creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities” (bold added);

You did not declare any information collected in the document (a) above were “exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities”. I can not image that any personal information in the reasons of the decision are not known to us. Implicitly, “the reasons of the decision” have been made up with both of the analysis of the information that we provided and the application of general guidelines and practices.

4. At paragraph 141 of the Decision, the Information Commissioner stated:

“assess much wider array of competing public interest considerations telling in favour of disclosure are liable to become relevant (including those related to open and accountable government……)”.

At paragraph 144 of the Decision, the Information Commissioner cites:

“In my opinion, the complainant is entitled to know how the Society's investigators analysed his complaint and, rather than being against the public interest, providing full particulars to the complainant is more likely to enhance public confidence in the system. The complainant can then see and appreciate the comprehensive work performed by the Law Society in analysing complaints of this kind and presenting them to the Professional Standards Committee for consideration”.

Following the logic in the paragraph 143 of the Decision, “The disclosure to [us], after the completion of investigation into the [Notices of a Constitutional Matter], of the [reasons of the decision] that would assist [us] to understand the nature of the issues involved in, and the reasons for, a decision to take [no intervention], would not, in my opinion, prejudice the public interest in the efficient and effective performance of the relevant regulatory function of the [Attorney-General’s department]”.

5. Apparently, the Attorney-General has not issued any certificates, which exempt both of the documents (a) and (b) above from release. Actually, it is the Attorney-General who has informed me that the Attorney-General’s department did some assessments and that I should contact the department for these documents. Implicitly, the Attorney-General wants us to know “the reason of the decision” otherwise he would not have provided such information.

I look forward to receiving your response.

(files below are downloadable as .jpg files)

Letter of 18 May 2007 from A-G’s Department for FOI p. 1, 2, 3 and 4