Complaints to Ombudsman about the review of FOI request

Dear Commonwealth Ombudsman,

I complain about the decision made by the Information Law and Human Right Division of Attorney-General’s department (the A-G’s Department) dated 30 July 2007 in relation to my application for review of a decision made by the A-G’s Department dated 18 May 2007. Those two documents are attached.

The “Brazil Direction”

2. The reviewer, Ms Sheedy, refers to “Brazil Direction” at the end of her decision (par 17). “The decision under review” fails to consider this preliminary request to claim exemption under Section 13.2.4 of the Freedom of Information Memorandum no 98 - Exemption Sections In The FOI Act (the FOI Memorandum), which provides: “agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information”. The reviewer fails to point out this error in “the decision under review”.

3. Further, the reviewer fails to point out that the “real harm” is the preliminary request for “a claim for exemption”. By contrast she uses the “real harm” to finally conclude her decision. It contravenes section 2.7 of the Freedom of information Guidelines: Fundamental Principles and Procedures, which provides:

“In 1985 the Government issued directions that agencies should not refuse access to non‑contentious material only because there are technical grounds of exemption available under the FOI Act. These directions remain applicable. Proper compliance with the spirit of the FOI Act requires that an agency first determine whether release of a document would have harmful consequences before considering whether a claim for exemption might be made out. For example, the fact that an exemption may be claimed under section 42 (legal professional privilege) should only lead to a claim for exemption where disclosure will cause real harm” (bold added).

The fairness of the procedure

4. The reviewer fails to refer to my grounds in my application for review dated 12 June 2007, which is attached. That is a denial of natural justice. According the principle of natural justice, the grounds for review ought to be addressed in her decision. Implicitly, she knows she has no arguments with my grounds for review.

Document 2: the decision-making policy

5. The A-G’s Department knows I only ask for: “the standard methods applied to this kind of assessment” (par 5). In my application for review I emphasized that I did not asked for any legal advice, I only request the policy or the standard methods (paras 1 to 4 of my application for review). The reviewer asserts that the document 2 is what I request (par 8). I read the released parts of the document 2, which on its face is a policy fully approved by the Attorney-General. So the sole purpose of the document 2 is for the Attorney-General to formally approve the policy or practice. Section 9(1)(a) of the Freedom Information Act 1982 (the Act) specifically deals with this kind of documents:

“Certain documents to be available for inspection and purchase

(1) 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”;

6. The materials deleted by the reviewer have been approved by the Attorney-General as manual or practice as well. The reviewer fails to provide any reasons why the materials deleted are different with the material released. The reviewer fails to provide any “articulate and acceptable reasons” contravening the FOI Memorandum (paras 8 to 12 of my application for review).

7. The reviewer does not deny the document 2 is a manual or practice. In my application for review I particularly refer to Section 7.2.5 of the FOI Memorandum, which clarifies that the final decision-making policy is not legal advice anymore (paras 6 and 7 of my application for review). The reviewer does not address my grounds. Obviously she knows that she is unable to contest my grounds. She first confirms to the effect that the document 2 is the manual or policy (par 8). Then she contradicts her own conclusion finding the document 2 is not manual or policy, it is legal advice, and contains legal advices exempted by the FOI Act. As she makes her decision based on her finally conclusion that the document 2 contains exempt legal advices, she should have declared that the document 2 is not a decision making policy, and that no such document exists. Put another way, if document 2 is a decision-making policy it has no legal professional privilege at all in accordance with s 9(1)(a) of the FOI Act.

Document 1: the reasons of the decision

8. The A-G’s Department knows I only ask for: “the reasons of the decision in terms of not intervening in this matter” (par 5). In my application for review I emphasized that I did not request for any exempt legal advice, I only request the reasons of the decision (paras 1 to 4 of my application for review). The reviewer asserts that the document 1 is what I request (par 8). It is likely that the reviewer has at least found that the document 1 contains the reasons of the decision.

9. In my application for review I particularly refer to Section 13.4 of the FOI Memorandum, which specifically clarifies “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” (par 13 of my application for review). The Full Court states: “The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion” (par 65 of Bennett v Australian Customs). The reviewer does not address my grounds. Obviously she knows that she is unable to contest my grounds.

10. The reviewer does not argue that the conclusion has been disclosed and that the “disclosure included the effect of the legal advice”. The reviewer has no doubt that the document 1 contains “the reasons of the decision”. However, she fail to apply the implied waiver of privilege to document 1, or, at least, to “the reasons of the decision” in the document 1, contravening s 13.4 of the FOI Memorandum and the Judgment Bennett v Australian Customs. Similar to the argument at [7] above, she first confirms the document 1 is the reason of the decision or, at least contains the reasons of the decision (par 8). Then she contradicts her own conclusion finding to the effect that the document 1 is only legal advices exempted by the FOI Act, and contains no reasons of the decision at all (par 13). As she makes decision based on her finally conclusion that the document 1 is exempt legal advice, she should have declared that the document 1 is not what I request or does not contains what I request, and that no such document exists. Put another way, under s 13.4 of the FOI Memorandum, if document 1 is reasons of a released decision the exemption of legal privilege of the reasons has been waived with the disclosure of the conclusion of the legal advice anyway, if document 1 is exempted legal advices it should not be reasons of voluntarily disclosed conclusion.

(files below are downloadable as .jpg files)

Letter of 30 July 2007 from the assistant secretary of A-G’s Department p. 1, p. 2, p. 3, p. 4, p.5 and p. 6, and its attachments p. 1, p. 2, p. 3 and p. 4.

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

(file below is downloadable as .doc files)

The application dated 12 June 2007 for review of the FOI decision of A-G’s Department.