Freedom of Information
Can legislative reform rescue FoI?

The Council's Policy Officer, INEZ RYAN, looks at the McKinnon case and its impact.

The judgment in McKinnon v Secretary, Department of Treasury [2006] HCA 45 is characterised by the kind of contorted logic that frustrates those initiated into the mysteries of legal formulae and confounds others.

The key issue was whether the treasurer's decision to issue a conclusive certificate was based on "reasonable grounds", in which case the tribunal is precluded from granting the applicant's request for disclosure. But what does that mean? How does the tribunal, which reviews the decision, determine whether the decision was based on reasonable grounds and how does an appeal court assess whether the tribunal's determination was erroneous?

On one reading of the Act a layman, who relies on common sense, might think that the tribunal ought to consider all the pros and cons and assess whether it is in the public interest that documents be published. But that is not what the tribunal considered to be its role - and the Federal Court agreed.

As the court has construed its powers under the legislation, it is not the role of the tribunal to conduct a "full merits review" on the question of whether disclosure is in the public interest. So, if the tribunal is not required to conduct a "full merits review", which would involve assessing the arguments for and against disclosure, how is it to decide whether the minister's decision to issue a conclusive certificate was based on "reasonable grounds"? This is where the logic becomes a bit fuzzy and one feels as if one is being subjected to some legal sleight of hand. Tamberlin J. (one of the Federal Court judges who heard the appeal from the tribunal's decision) stated that:

If there is a ground that is not irrational, absurd or ridiculous for a claim that the first-mentioned facet of the public interest [1] would not be served by disclosure, then that alone is sufficient to satisfy the requirements of s 58(5). It is not necessary in order to decide that limited question that the decision-maker should consider and weigh all the other facets, and the grounds which may reasonably support each of those facets, in order for s 58(5) to be satisfied. [2]

To paraphrase - if a minister claims that confidentiality would not be served by disclosure, and that claim isn't absurd, a conclusive certificate is valid. What? Does that mean that, as long as the minister's reasons are not completely crazy, no-one can challenge his decision? That is essentially how the words were interpreted by the appellant's legal team, who argued that this approach was wrong and, instead, the tribunal should be required to balance the different aspects of public interest: the public interest in confidentiality as against the public interest in transparency and accountability.

The majority of the High Court rejected the appellant's interpretation of the tribunal's decision. The judges stated that

the test applied by [the tribunal] did not involve a choice between absurdity and non-absurdity. To say that an opinion or a proposition is not absurd, is not to say that it is necessarily reasonable [3]

The majority went on to reject the contention that the tribunal is required to make an assessment of where the public interest lies:

[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 ... the Tribunal is not obliged to undertake a balancing exercise . [4]

But the majority's interpretation was contradicted by the minority who said,

Logically, the view of the majority in the Full [Federal] Court 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 applicant for review under s 58(5) must fail. We cannot accept that. To take the example mentioned by Tamberlin J, the preservation of confidentiality of intra-governmental communications prior to making a decision could always be advanced, in the case of internal working documents of the kind with which we are concerned, as a relevant consideration. How could an applicant ever succeed? If it were enough for the Minister to point to one facet of the public interest that is served by non-disclosure, then it would be enough to say that non-disclosure preserves confidentiality. Of course it does. By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest. [5]

So where does this leave the hapless applicants who seek knowledge in the form of government information? Commentators could argue almost infinitely about the true meaning of the High Court's words, and doubtless we will see academics doing just that for some time to come. But the practical consequence for FoI applicants is that once a conclusive certificate has been issued the game's up: any attempt to pursue review mechanisms after this point is simply wasting time and money. There may be a few isolated instances where an application might succeed, but the exorbitant costs involved in disputing the certificate make the investment in appeals against certificates of doubtful value.

Options for reform

In the wake of the High Court's decision, many commentators have urged/proposed that conclusive certificates should be abolished. But would the abolition of conclusive certificates satisfactorily address the fundamental problem: the need to remove obstacles to access to government information? It should be remembered that the certificate was issued in the McKinnon matter after the review process had been commenced. If McKinnon had been successful in gaining access to the documents at an early stage in the review process, prior to the matter reaching the AAT, a conclusive certificate would never have been issued.

What is needed is a complete overhaul of the Act. Possible reforms that might be considered as part of that overhaul include the following:

• Creating an onus on government to prove that a document is exempt
   
• Revising the exemptions to narrow the range of documents that are exempt
   
• Inserting a clause making it an offence improperly to withhold documents from disclosure
   
• Inserting a section which specifies that it is inappropriate to withhold documents for purely political reasons, such as concealing inefficiency and incompetence, or to prevent the Opposition from gaining a political advantage.
   
• Amending those sections dealing with review and appeal procedures in order to require the tribunal to engage in a "merits review" where appropriate.
   
• Redefining the "public interest" in such a way that emphasis is placed on the importance of transparency and accountability of government to the population.
   
• Establishing a requirement for the government to publish an annual report that states the number of FoI requests granted by each government body and the proportion of the material sought actually supplied; the number refused; the reasons for refusals; the fees charged for information disclosed; and the nature of the application and information sought (i.e. a distinction should be made between individuals seeking their personal information and applications that are concerned with policy and efficiency, such as those made by journalists, researchers and pressure groups).
   

Even if the Act is subject to extensive amendment, FoI will still be unworkable in the absence of profound changes to the organisational culture of government bodies and ministerial staff. Such changes are achievable only through extensive training and the promotion of ethical discourse involving all staff, from the most junior right through to the most senior. This process is an evolutionary one that is comparable to the way problems such as corruption and inefficiency are addressed. Ultimately, this aspect of reform will be more significant than legislative reform, although much more difficult to achieve.

Inez Ryan

FOOTNOTES