Freedom of Information ain’t so free

On Wednesday, the High Court handed down a decision which will be pivotal in establishing the ambit of FOI claims. In McKinnon v Secretary, Department of Treasury [2006] HCA 45, a majority of the High Court found that requests for information could be resisted on the basis that the minister responsible for that portfolio had signed a certificate stating that disclosure of information was not in the public interest.

The facts arose in the following manner. Mr McKinnon, the FOI Editor of The Australian made two requests for material from the Department of Treasury in late 2002 pursuant to the Freedom of Infomation Act 1982 (Cth) (“FOI Act“). The first request was for material relating to “bracket creep” in the federal income taxation system, and the second request was for material relating to the First Home Owners Scheme. Mr Costello, Federal Treasurer, signed two certificates pursuant to s 36(3) of the FOI Act stating that disclosure of the most of the relevant documents would not be in the public interest. The reasons for this were broadly as follows:

  • Disclosure would mean that goverment officers would not feel comfortable communicating freely with a Minister and his office on issues which are sensitive. Officers should feel able to make written notes of such communications.
  • Some of the documents discussed options that were not settled at the time the document was drafted or recommended courses of action that were not ultimately taken. This could lead to confusion and to mislead the public, and would undermine the public integrity of the Government’s decision making process.
  • Further, preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of departmental officers and should remain undisclosed. The release of such documents would threaten the Westminster-based system of Government.
  • Some documents could not be put into their proper context because of the absence of any explanation of the variables used or assumptions relied upon, and so would not be a valuable contribution to public debate.
  • The documents were intended for a specific audience familiar with the technical terms and jargon used, and thus could lead to public misunderstanding.

Meanwhile, Mr McKinnon made an application to the Administrative Appeals Tribunal (“AAT”) seeking a review of the decision to refuse to disclose the documents. Pursuant to s 58(3) of the FOI Act, the ATT does not have the power to review the decision to give the certificate. However, pursuant to s 58(4), the AAT can decide whether the Minister has reasonable grounds for citing the grounds claimed in the certificate. Further, pursuant to s 58(5), the AAT can decide whether the Minister has reasonable grounds for the claim that failure to disclose the document is in the public interest.

The ATT determined that there were “reasonable grounds” for the Treasurer to sign a certificate pursuant to s 36(3). Mr McKinnon then “appealed” to the Federal Court. A majority of the Full Court of the Federal Court (Tamberlin and Jacobson JJ, Conti J dissenting) dismissed Mr McKinnon’s appeal. Mr McKinnon then appealed to the High Court.

A majority of the High Court (Hayne J and Callinan and Heydon JJ) dismissed Mr McKinnon’s appeal. Hayne J said that Mr McKinnon’s submission had been that the AAT was in error in its approach to the question:

  • It had merely identified a single ground that was not irrational, absurd or ridiculous in upholding the claim disclosure was not merited in order to preserve confidentiality of intra-governmental communications
  • It had not decided all of the relevant questions of fact tendered by the competing evidence adduced at the hearing, and had wrongly treated certain classes of documents as necessarily exempt from disclosure.

Hayne J concluded that the AAT had not been in error in this manner, and therefore Mr McKinnon’s claim must fail.

Callinan and Heydon JJ, in a joint judgment, concluded at [131]:

“[I]f one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review… Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.”

As Gleeson CJ and Kirby J point out in their dissent, the view of the majority appears to mean that, so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an application for review of a certificate must fail. The AAT may, however, in making its opinion, take account of all relevant opinions. Gleeson CJ and Kirby J explicitly reject the suggestion that they are arguing that the AAT should perform a “balancing” operation. They state at [19]:

There is a “general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]” (s 3(1)(b)). That is the context in which a Minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to “balancing” create a danger of losing sight of that context. That is the context in which the question of reasonableness raised by s 58(5) is to be addressed. To lose sight of that would be to lose sight of the principal object of the FOI Act.”

With respect, I think that the judgment of Gleeson CJ and Kirby J is far more compelling and accords with the aims of the FOI Act. It seems ridiculous to me that if there is just one reasonable ground for non-disclosure and one hundred reasonable grounds for non-disclosure, the AAT should come down on the side of non-disclosure. As Gleeson CJ and Kirby J say, the FOI Act makes it clear that its intention is to allow the disclosure of the vast majority of information in the public interest, and so it is not so much a “balancing act” as an exercise of deciding when it is appropriate to allow the aims of the FOI Act to be curtailed.

The government is supposed to act in the interests of the public and for their benefit. It seems that we are not allowed to have the information to decide whether the government is actually acting for our benefit if the government decides in its infinite wisdom that we should not know. I believe it is unfortunate that the majority view has prevailed, as this will give government a further means to sidestep the provision of information about which the public has a right to know.



Filed under freedom of information, freedom of speech, high court, law

4 responses to “Freedom of Information ain’t so free

  1. KY

    I think it’s fair to say that if the majority judges were to take a test on “Statutory Interpretation 101” on this piece of legislation, they would fail.

    On another front I think it’s great that Gleeson, rather than Kirby, wrote their joint judgment – I can’t stand another minute of Kirby’s sanctimonious diatribe.

  2. Anonymous

    I haven’t read this decision (I fear it might bring on a case of lawyer depression if I did so) but I rely on Legal Eagle’s analysis (hey, I often did while at Uni, so why stop now?).

    The thing that scares me most about this decision is how pathetic the reasons for non-disclosure are. “The public might be confused”??? Could they not come up with anything better?

    Why is this government so worried that I might be confused? Is it because it fears that it will be unable to explain government policy? Does it fear that it can’t explain government policy? Is it of the view that we don’t deserve to have government policy explained? Or is it of the view that it will be too expensive to explain government policy? (But then, why does it spend all that money on advertising legislation that we going to get anyway because we gave them a majority in both Houses?)

    I wonder if we need an implied constitutional right to be confused if we want to? 🙂

  3. Pingback: Rights or wrong? « The Legal Soapbox

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