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Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71 (30 July 2014) Decision and reasons for decision of Australian Information Commissioner, Professor John McMillan

Applicants: Mr Sean Parnell

Hon Mark Dreyfus QC MP

Respondent: Attorney-General’s Department

Decision date: 30 July 2014

Application number: MR13/00486 and MR14/00242

Catchwords: Freedom of Information — Incoming government brief prepared for party that formed government — Whether document contains deliberative matter prepared for a deliberative process — Whether disclosure could reasonably be expected to have a substantial adverse effect on the operations of an agency— Whether document subject to legal professional privilege —Whether contrary to public interest to release conditionally exempt document — (CTH) Freedom of Information Act 1982 ss 11A, 22, 42, 47C, 47E

Contents Summary ........................................................................................................................ 2

Background .................................................................................................................... 3

Decisions under review .................................................................................................. 4

Description of the IGB .................................................................................................... 4

Submissions of the parties ............................................................................................. 5The Department’s submissions .................................................................................. 5

The applicants’ submissions ....................................................................................... 7

General considerations .................................................................................................. 8

Deliberative processes exemption (s 47C) ................................................................. 9

Certain operations of agencies exemption (s 47E) ...................................................... 13

Public interest factors (s 11A) .................................................................................. 14

Legal professional privilege exemption (s 42) ............................................................. 18

Access to edited copy (s 22) ......................................................................................... 19

Application of the FOI Act to IGBs ............................................................................... 20

Decision ........................................................................................................................ 21

Summary 1. I vary two access refusal decisions of the Attorney-General’s Department (the

Department) of 20 November 2013 made under the Freedom of Information Act 1982 (the FOI Act) in relation to the Incoming Government Brief (IGB) prepared for the Attorney-General. I substitute my decision refusing access to some parts of the document sought and granting access to other parts. I grant access to the ‘Information Brief’, except for the pages listed in [84] below. I affirm the Department’s decision to refuse access to the other pages of the ‘Information Brief’ and to the ‘Strategic Brief’.

2. The main findings in this decision concerning the Department’s decisions to refuse access to the IGB are:

Much of the IGB contains deliberative matter (analysis, views and advice) that is related to a deliberative process (advising an incoming Minister on portfolio issues). That matter is conditionally exempt under s 47C. This includes factual material that is an integral part of the deliberative content and that is impractical to excise.

It would be contrary to the public interest under s 11A(5) to release that deliberative matter, having regard in particular to the special purpose of an IGB to provide frank and helpful advice to a new Minister at a critical juncture in the system of responsible parliamentary government.

Some of the material in the IGB, relating to the role, functions, personnel and resources of the Department, is neither deliberative matter nor related to a deliberative process. It is not conditionally exempt under s 47C.

Section 47E(d), which provides conditional exemption for disclosure that would have a substantial adverse effect on the operations of an agency, does not provide any exemption coverage in this case greater than that provided by s 47C. Section 47E(d) does not provide exemption for the material in the IGB relating to the role, functions, personnel and resources of the Department.

It is doubtful that brief comments in the IGB on legal issues arising in significant litigation involving the Commonwealth is exempt under s 42 (legal professional privilege).

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Although some deliberative content in the IGB could separately be released without consequence, it is not reasonably practicable in this IC review process to prepare an edited copy of such a lengthy document that covers an extensive range of topics (s 22).

3. This decision is given on the same day as another decision that deals with similar issues, Crowe and Department of the Prime Minister and Cabinet [2014] AICmr 72. Two special issues discussed in that decision are that the IGB was prepared for the Prime Minister, and had been prepared nearly four years previously.

Background 4. The Office of the Australian Information Commissioner (OAIC) received two

separate applications for IC review of two decisions of the Department made on 20 November 2013 relating to the same document. Both applications raise essentially the same issues, and have been joined in these proceedings.

5. Mr Sean Parnell, a journalist with The Australian, made an FOI request to the Department on 9 October 2013 for access to ‘the incoming government briefs’. The Department identified one document relevant to the request, an IGB that was provided to the Attorney-General in the new Coalition Government, under signature of a letter of the Secretary, Mr Roger Wilkins AO, dated 18 September 2013.

6. On 18 October 2013 the Department advised Mr Parnell of its decision to refuse access to the entirety of the IGB. The Department advised that the document was conditionally exempt under both s 47C (deliberative processes) and s 47E(d) (agency operations), and that providing access to the document would be contrary to the public interest under s 11A(5) of the FOI Act.

7. Mr Parnell applied for internal review of the Department’s decision on 21 October 2013. A decision affirming the primary decision was made on 20 November 2013.

8. On 22 November 2013 Mr Parnell applied under s 54L of the FOI Act for IC review of the Department’s internal review decision.

9. The Hon Mark Dreyfus QC MP, Shadow Attorney-General, made an FOI request to the Department on 20 September 2013 for access to ‘the incoming government briefs prepared by the Attorney-General’s Department’. Mr Dreyfus specified that his request encompassed briefs prepared for both a Labor and a Coalition Government, and included attachments, related materials and any brief providing an overview of the Attorney-General’s Portfolio.

10. On 18 October the Department advised Mr Dreyfus that only one IGB had been prepared, for the Attorney-General in the newly-elected Government. The Department’s decision was in the same terms as the decision advised to

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Mr Parnell on 18 October 2013, and advised that the entirety of the IGB was exempt under ss 11A, 47C and 47E of the FOI Act.

11. Mr Dreyfus applied for internal review of the Department’s decision on 31 October 2013. A decision affirming the primary decision was made on 20 November 2013.

12. On 7 May 2014 Mr Dreyfus applied under s 54L of the FOI Act for IC review of the Department’s internal review decision. His application included two further requests: that I accept his application by extending the time to apply for IC review under s 54T of the FOI Act, as the period of 60 days for doing so had expired (s 54S); and that I consider making a decision under s 54W of the FOI Act not to undertake an IC review of his application, so that he might apply to the AAT for review of the Department’s decision.

13. On 17 June 2014 I approved the extension of time, but declined to make a decision under s 54W. I advised that I would shortly be sending a preliminary view to the Department in relation to the application received from Mr Parnell. I proposed joining the two applications, and finalising them by a single decision.

Decisions under review 14. The decisions under review are two internal review decisions of the

Department made on 20 November 2013 in relation to Mr Parnell’s and Mr Dreyfus’s FOI requests. Both decisions are in the same terms, except for a separate discussion in each decision of submissions by the applicants.

Description of the IGB 15. The IGB comprises two parts. The first part is entitled ‘Information Brief’. It

contains (in addition to a Table of Contents and heading pages) information about:

the Department’s structure, functions, senior personnel, programs, budget, activities, key stakeholders, international role and support for the Minister

selected responsibilities of the Attorney-General, relating to crisis and emergency management, significant litigation involving the government, appointments to senior portfolio positions that fall due up to September 2014 and upcoming meetings

the role, personnel and key issues facing each of 18 statutory and non-statutory bodies that are within the Attorney-General’s portfolio (in a section entitled ‘Portfolio Agency Summaries’); and

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government and non-government bodies and office holders described as ‘Key Stakeholders’ in relation to the areas of Departmental responsibility, including the telephone contact numbers and email addresses of many office holders.

16. The second part of the Brief is entitled ‘Strategic Brief’. It contains (in addition to a Table of Contents and heading pages):

a two page covering letter from the Secretary of the Department to the Attorney-General

information on the Attorney-General’s role and responsibilities, the Department’s support to the Minister, key challenges and priorities in the portfolio and internal restructuring

the election policy commitments of the Attorney-General and the Government, and the Department’s commentary on issues to be considered and steps to be taken in implementing the policy commitments

options for structural re-alignment in the portfolio

a discussion of particular topics and themes in the portfolio, including strategic directions, budget implications and risks and sensitivities; and

a discussion of urgent and priority matters in the portfolio.

Submissions of the parties 17. I have treated the following as the submissions in this case:

as to the Department’s submissions: the two primary decisions of 18 October 2013, the two internal review decisions of 20 November 2013, and the Department’s response on 11 July 2014 to my preliminary view (except where relevant, I refer to these below in a combined way as the Department’s decision of 20 November 2013)

Mr Parnell’s submission in his application for IC review on 22 November 2013

Mr Dreyfus’s submission to the Department when applying for internal review on 31 October 2013 (Mr Dreyfus was also invited to make a further submission after being informed that his application would be joined with Mr Parnell’s).

The Department’s submissions 18. The Department concluded that the entirety of the IGB was exempt under

both ss 47C and 47E. The Department did not explain that the IGB comprised two parts, nor did it refer (other than in general terms) to the contents of the IGB. The decision relied at numerous points on my decision in Crowe and

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Department of the Treasury [2013] AICmr 69, and in particular on my view that an incoming government brief may be exempt on the basis of a class claim. The decision does not expressly refer to the distinction that I drew in Crowe between a brief prepared for a party that did not form government (the issue in that case) and a brief prepared for a party that did form government (the issue in this case) – although it is implicit in the decision that this case is of the latter kind.

19. The Department’s decision falls into four parts. One part deals with the application of s 47C. The Department concluded that two elements of that section relevant to this matter were satisfied: that the IGB contains opinion, advice and recommendations on current and future issues facing the Department; and that the factual and operational material in the IGB is an integral and intertwined part of the IGB and provides context for its deliberative content and purpose.

20. A second part of the decision deals with the application of s 47E. The Department concluded that disclosure of the IGB would compromise the Department’s ability to provide frank and honest advice to a new Minister in an incoming government; disclosure would likely result in incoming government briefs being tailored to a different audience and thereby compromising their utility and purpose as a confidential brief to a new Minister; those consequences would substantially and adversely affect the proper and efficient conduct of the operations of the Department; and that this reasoning requires the confidentiality of the entire IGB and not merely particular aspects of the document.

21. A third part of the decision contains a discussion of public interest considerations applying to both the s 47C and s 47E conditional exemption findings. Some public interest considerations on which the Department relied are noted above in relation to s 47E. The following were also noted:

An incoming government brief is fundamental ‘to ensure a smooth transition between governments’. The brief assists ‘the expedient establishment of the new Government and the new Ministers in portfolios’. … The incoming government brief is the principal tool available to the Department to comprehensively and candidly advise the new Minister on a myriad of sensitive issues affecting the portfolio; providing advice, opinion and recommendations on progressing the new Government’s agenda, and managing policy issues affecting, and likely to affect, the portfolio.

22. The Department also commented that disclosure would compromise its ability to meet its responsibilities in a system of responsible parliamentary government to provide confidential and sensitive advice to the Minister.

23. As to countervailing public interest considerations, the Department acknowledged that some information in the IGB about the Department and its budgetary appropriation was already publicly available on the Department’s website. However, it did not think that disclosure of how that information was

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presented to the Minister in the IGB would further inform public debate. To the extent that disclosure of other material in the IGB would inform public debate on policy and public expenditure issues facing the new government, the Department concluded that on balance the disclosure of the IGB would nevertheless be contrary to the public interest for the reasons earlier noted.

24. A fourth part of the decision addresses and dismisses points made by the applicants in their applications for internal review. Much of this ground is covered above. The main additional point is that both applicants submitted that the release of IGBs during the period of the former Labor government had not caused any harm of the kind that was now asserted by the Department. The Department countered that only portions of the IGBs were previously released, but the current requests were for the entire IGBs; and the Department’s present concern was more about the effect that disclosure would have on the preparation of future IGBs. The Department also commented that it did not attach weight to the absence of any view expressed by the Attorney that release of the document would impede his working relationship with the Department.

25. Finally, the Department noted that other exemptions would apply if the IGB was considered for edited release under s 22. The application of the other exemptions was not explained, but those mentioned were s 33(a)(iii) (international relations), s 37 (enforcement of the law and protection of public safety), s 38 (secrecy provision in another enactment), s 42 (legal professional privilege) and s 46 (material obtained in confidence). The Department later made a brief submission about s 42 in responding to my preliminary view in this case.

The applicants’ submissions 26. Mr Parnell’s application for IC review addressed many of the same issues. He

disagreed that the Department’s working relationship with the Minister and its ability to provide him with frank and honest advice would be compromised by disclosure of the IGB:

The Australian would point out that neither Prime Minister Tony Abbott nor any member of his government have said they do not wish their departments to comply with the Act, nor have they threatened any sort of retribution or recriminations for those who do, nor have any of the departmental secretaries made any reasonable claim that the release of the briefs would force a change in policy so as not to allow for ‘frank and honest’ advice to be provided in future. Indeed, there were occasions in Opposition where the Coalition publicly disagreed with departmental advice, and there have been occasions since the new Cabinet was sworn in that the Prime Minister and ministers have disagreed with positions taken by the previous government and upheld by the current bureaucracy. Senator [Brandis], who is responsible for the Act and received the briefs in question, told a recent Budget estimates committee hearing he would continue to allow bureaucrats to decide on FOI matters as they saw fit. To suggest the relationship between the incoming Attorney-General and his department is so fragile as to not be able to withstand the

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same level of transparency as afforded to their predecessors – or, indeed, to a re-elected government in the next term – is unreasonable and, with respect, a politically-convenient fallacy.

27. Mr Parnell also submitted that the Department failed to give proper weight to the public interest factors favouring disclosure, such as the need for transparency, accountability and an informed policy debate. The public would benefit, at a time of change in government, from learning of the views of ‘an independent voice from within government, from a department that has continued through an election. … [B]y the time this IC review is finalised any sensitivities claimed by the Department would have all but disappeared’.

28. In applying for internal review, Mr Dreyfus submitted that there was inadequate discussion in the primary decision of factors that favour disclosure in ss 3 and 11B(3): the application of s 47E(d) was poorly reasoned; the Department had wrongly quoted or relied upon comments in Crowe and in the report by Dr Allan Hawke AC on review of the FOI Act; consideration should be given to the release of an edited version of the IGB; and

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no weight was given in the Department’s primary decision to the earlier release of incoming Ministerial briefs during the period of the Labor Government, to the absence of any identified harm flowing from that release, and that public servants would have prepared the 2013 briefs against that background.

General considerations 29. I am guided in deciding this matter by my reasoning in Crowe, but note two

important differences:

Crowe concerned a decision not to release an IGB prepared for a party that did not form government, whereas the current matter concerns a brief prepared for a party that did form government

the decision under review in Crowe related to only a few pages of the brief, whereas the current matter relates to the entire brief.

30. Those differences are adverted to in Crowe, and are implicitly acknowledged by the Department in the present case. However, as I shall briefly explain, I have attached more importance to those differences.

31. As to the first point of difference, my decision in Crowe was directly based on four considerations that, as I noted at [92], ‘are specific to the confidential status of the brief prepared for a party that did not form government’. The unifying theme of those four considerations was that the brief had never been provided to the party for whom it was prepared, and to release it publicly would be unfair to that party, contrary to the conventions of parliamentary

1 Attorney-General’s Department, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 (August 2013).

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government and could complicate relations between the department that prepared the brief and the Ministers who have formed government.

32. I noted that I found ‘to be strongly influential’ other considerations listed in [85], that generally support the confidential treatment of deliberative matter in all incoming government briefs. I refer to some of those considerations below.

33. This first point of difference is relevant also to the application of s 47E, which I discuss below.

34. As to the second point of difference, the application of an exemption provision should be considered by looking first at the contents of the document under review, rather than at the entire document as though it had a single or dominating characteristic. It is relevant that the document under review is an IGB and was prepared as a single and composite document, but the FOI Act does not accord any special treatment to IGBs. The FOI Act at s 22(1) also requires an agency to consider whether ‘it is reasonably practicable’ to prepare an edited copy of a document such that no exemption claim could be made and the agency would be required by the FOI Act to give access to the edited copy. It is more likely that the redaction issue will be genuinely considered by an agency if it approaches the task by first considering whether there are different content categories in the document that warrant separate treatment under the FOI Act.

35. The fewer pages of the document under consideration in Crowe meant that fewer issues had to be discussed. The discussion of s 47C focussed on whether the document contained ‘deliberative matter’ and ‘purely factual material’. In the present case I also have to consider whether material relating to the structure, personnel, functions, resources, programs and activities of the Department is exempt under ss 47C and 47E. I noted in Crowe (at [67] and [77]) that material of that kind in IGBs had already been published by some agencies.

36. I now consider in turn the application of ss 47C, 47E, 11A, 42 and 22.

Deliberative processes exemption (s 47C)

37. Section 47C of the FOI Act provides in part:

(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or

(b) a Minister; or

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(c) the Government of the Commonwealth …

(2) Deliberative matter does not include … (b) purely factual material.

38. In Crowe I discussed separately the terms ‘deliberative matter’, ‘deliberative process’ and ‘purely factual material’. Those issues are also discussed in Guidelines that I have issued under s 93A of the FOI Act, to which agencies must have regard in performing functions and exercising powers under the FOI Act.2 Drawing from the Crowe discussion and the FOI Guidelines, the main points relevant to the present case are:

‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document. Those are broad terms that bear their ordinary meaning and do not require further elaboration in the present case.

‘Deliberative process’ is generally said to refer to the process of ‘weighing up or evaluat[ing] … competing arguments or considerations’ or to ‘thinking processes – the process of reflection, for example, upon the wisdom an

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d expediency of a proposal, a particular decision or a course of action’. That is, the deliberative matter (opinions and the like) recorded in a document must be related to a process that is being undertaken within government to consider whether and how to make or implement a decision, revise or prepare a policy, administer or review a program, or some similar activity. Opinions and the like contained in a document that has not been prepared for a deliberative process are not exempt under s 47C.

The deliberative process may be one being undertaken either by the agency that has prepared a document, or by another agency or a Minister for whom the document is prepared.

A document may fit those descriptions even though the deliberative process has stalled or been overtaken by other events – for example, the document was never delivered to the Minister for whom it was prepared.

The term ‘purely factual material’ (to which this exemption does not apply: s 47C(2)(a)) does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.

Some other types of documents and information are expressly excluded from the scope of s 47C, such as ‘operational information’ (s 47(2)(b)), scientific and technical reports, prescribed reports and reasons for decision

2 Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

3 Re J E Waterford and Department of Treasury (No 2) [1984] AATA 67 at [58].

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(s 47C(3)). The document in this case does not include information of those types, and no further consideration of those exclusions is therefore required.

Other types of information that are commonly included in deliberative process documents may also fall beyond the scope of this exemption – such as material that is merely descriptive of an agency’s structure, processes and activities, or that records the administrative steps to support a deliberative process.4

39. I will consider first how those principles apply to the Strategic Brief, which forms part of the IGB. The Strategic Brief is framed as a deliberative process document. Throughout it contains the Department’s analysis, views and advice on portfolio issues that may arise for consideration by the Attorney-General and the Government, including commentary on implementing the Government’s policy commitments. The Strategic Brief is intended to be a key resource in the deliberative processes of the Department and the Government.

40. There is necessarily a large amount of factual material in the Strategic Brief, referring to existing programs, policy announcements, legislation, budgetary allocations, staffing and public events. This factual material is integral to the deliberative content and purpose of the Brief: the analysis and views in the Brief would be robbed of their essential meaning without incorporation of this factual material. It would also be impractical to attempt to separate it from the deliberative content, as the two are intertwined.

41. There are only three portions of the Strategic Brief that may not as readily qualify as deliberative matter: 12 cover and heading pages that introduce the different segments of the Strategic Brief; the Table of Contents that contains over 100 entries; and a two page covering letter from the Secretary of the Department to the Attorney-General.

42. I have decided on balance that this material does qualify for exemption under s 47C. The Table of Contents provides a detailed introduction to the structure of the Strategic Brief, and to that extent provides an introduction to the themes of the Brief and reflects and is integrated with the deliberative content. Approximately half of the covering letter contains deliberative matter by distilling the key points in the remainder of the Brief.

43. As to the remaining material (the heading pages and half of the Secretary’s letter), I have decided that it is not reasonably practicable to prepare an edited copy of the document that contains only that material. As I explain below in discussing s 22, the requirement to prepare an edited copy of a document if it is ‘reasonably practicable’ to do so, should be applied in a common sense fashion that advances the open government objectives of the FOI Act by

4 See the FOI Guidelines at [6.68].

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providing access to something of substance rather than a skeleton of words, phrases and page numbers.

44. I now consider how s 47C applies to the Information Brief. This Brief was prepared for a deliberative purpose – to advise the incoming Minister on portfolio issues and to select issues and topics that may engage the Minister’s attention in administering the portfolio. There is deliberative matter within the Brief, noted below, that provides explicit advice or commentary for the Minister’s attention. However, quite a lot of the content of the Information Brief is background information only – such as the Departmental organisation chart and overview, Administrative Arrangements Order, and budgetary information. Much of this material is essentially factual in nature and is obtainable elsewhere on agency websites.

45. The relevant question under s 47C(1)(b) is whether this other material is matter ‘in the nature of, or relating to, opinion or advice … recorded … for the purposes of, the deliberative processes involved in the functions of … a Minister’. The meaning of the phrase ‘in relation to’ was discussed by the Administrative Appeals Tribunal (AAT) in Australian Broadcasting Corporation and Herald and Weekly Times Pty Ltd [2012] AATA 914. Although that case concerned a different provision in the FOI Act, the AAT’s approach is instructive, and discusses the meaning of the phrase in a variety of legislative contexts. In summary, the AAT held that in the context of the FOI Act the phrase ‘in relation to’ requires ‘at least a reasonably direct relationship’ or connection between a document and the nominated topic. The phrase is used in the FOI Act to refer to and identify with precision a category of exempt documents. The connection must not be indirect, remote or tenuous.

46. Applying that approach, I do not think that material which draws from public sources and describes the role, structure, functions, personnel and resources of the Department is ‘deliberative matter’, merely by inclusion in a document that was explicitly deliberative in purpose. The separation of the IGB into two parts, an ‘Information Brief’ and ‘Strategic Brief’, reinforces this finding. Nor do I regard the non-deliberative and deliberative material as being interwoven and impracticable to separate.

47. The position I have therefore reached is that only four sections of the Information Brief contain ‘deliberative matter’:

the ‘Significant Litigation’ section (pages 33 – 36): this section lists significant litigation involving the Commonwealth, with a brief description of legal issues and some comments on the consequences that may flow from particular outcomes (I comment further on this section below)

the ‘Portfolio Budget and Staffing’ section (pages 45 – 49): this section highlights the impact that budget and savings measures will have on the portfolio, and some of the challenges this presents

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the ‘Key Issues’ segment of each of the Portfolio Agency Summaries (pages 53-81): each segment explicitly or implicitly provides advice and guidance to the Minister on issues which the Department has selected as key issues for the Minister’s attention, and

the ‘Key Stakeholders’ section (pages 83 – 105): this section identifies government and non-government organisations and individuals who the Department advises are key stakeholders in subject areas of special portfolio interest.

48. There is a high factual and descriptive content in the ‘Significant Litigation’, ‘Portfolio Budget’, ‘Key Issues’ and ‘Key Stakeholders’ sections. Nonetheless, the central theme of each section is that the Department is providing discerning advice to the Attorney-General on key issues, organisations, and personnel.

49. In the preliminary view I sent to the Department I had not characterised the ‘Significant Litigation’ section as including deliberative matter. However, I accept the Department’s submission that there is an element of opinion in selecting some cases as significant and describing briefly the legal issues and possible outcomes. That opinion is provided to the Attorney-General in his role as the First Law Officer of the Commonwealth and as Chair of a Significant Issues Co-ordination Committee that can consider the conduct of that litigation.

Certain operations of agencies exemption (s 47E) 50. Section 47E of the FOI Act provides in part:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to … (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

51. I drew attention in Crowe to the possibility that s 47E(d) could exempt the entirety of an IGB (including purely factual material) prepared for a party that did not form government. My reasons were not spelt out, but in essence were that it would confuse the formation of a working relationship between a new Minister and department if there was simultaneous release of confidential advice prepared by the department for a party and Minister that was not elected to government. Special measures are therefore taken to ensure that advice of that kind is not widely known or shared within government.5

52. I also observed in Crowe that s 47E(d) would be less likely to apply to the entirety of an IGB prepared for the party that did form government. Specifically, I had in mind that it would be difficult to establish that it was contrary to the public interest to release non-deliberative material from an IGB. I noted that material of that kind had already been released by agencies.

5 See Crowe at [86] and [93].

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That could also make it difficult to establish that disclosure of non-deliberative material would or could reasonably be expected to have a ‘substantial adverse’ effect on a department’s operations.

53. The Department’s reasons in this case do not deal specifically with disclosure of non-deliberative or purely factual material from its IGB. The reasons are more directed at protecting the deliberative content of the brief so as to enable frank and honest advice to be given to the new Attorney-General on a confidential basis.

54. This exemption will apply only when an agency can clearly point to and explain the substantial adverse effect that disclosure would or could be expected to have on its operations.6 The expected effect must be ‘real or of substance and not insubstantial or nominal’. A generalised explanation or speculative effect will not suffice.

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55. I have earlier explained that the Information Brief contains material drawn from public sources that explains the role, structure, functions, personnel and resources of the Department. Material of that kind in IGBs has been released by some other agencies. It is also well-established practice since the FOI Act commenced operation in 1982 that edited extracts are released from documents that contain confidential or sensitive information that is exempt from disclosure.

56. My view is that the Department has not cogently explained why release of non-deliberative and purely factual material in the IGB could be expected to have a substantial adverse effect on its operations. I therefore find that, in this case, s 47E does not provide any exemption coverage greater than that provided by s 47C.

Public interest factors (s 11A) 57. Section 11A(5) of the FOI Act provides that access must be given to a

document that is conditionally exempt ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’. Section 11B spells out public interest factors favouring disclosure that must be considered, and irrelevant factors that cannot be considered.

58. The main issue to be considered in this case is whether it would be contrary to the public interest to release the material that I have decided is conditionally exempt under s 47C (the ‘Strategic Brief’ and the four sections of deliberative matter in the ‘Information Brief’). I also comment briefly on whether it would be contrary to release the other material in the Information Brief that I have decided is not conditionally exempt under s 47C or s 47E, should that become an issue.

6 See FOI Guidelines at [5.18]. 7 Re Russell Island Development Association Inc and Department of Primary Industries and Energy

[1994] AATA 2 at [58]

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59. The discussion of public interest considerations in the Department’s decision is similar to and partly relies on my summary in Crowe of the submissions in that case as to why disclosure of an IGB would be contrary to the public interest. Although Crowe concerned a brief prepared for a party that did not form government, the submissions related more generally to the need for confidentiality of IGBs. It is convenient to repeat the summary from Crowe (at [85]):

• Incoming government briefs play an important role in the Australian system of responsible parliamentary government. Their purpose is to enable and facilitate a smooth transition from one government to another following a general election. A new government may be formed and commence governing immediately after the election result is known. The new government will place strong reliance on receiving a helpful incoming government brief.

• The incoming government brief will be prepared prior to the date of the general election, when both the election outcome and the identity of the new Minister are unknown. Immediately a government is formed a department must establish a working and trusting relationship with a new Minister. The confidentiality of the discussions and briefing provided to the new Minister are essential at that early stage in developing a relationship that accords with the conventions of responsible parliamentary government.

• Part of the value of an incoming government brief is that it provides a department’s frank and honest advice on the policy priorities and challenges facing a new government. A department may perceive the need to raise difficult questions for the Minister about implementing the policy agenda of the incoming government. The advice is prepared before the identity of the new Minister is known, and in that sense differs from other advice that may be prepared at the Minister’s request or as part of the department’s normal support and advising function. The context is unique and requires that confidential advice can be prepared by the department for the incoming Minister, without endangering the impending development of a proper working relationship with the Minister.

• Another special feature of an incoming government brief is that it is prepared essentially as a communication limited to an audience that may comprise only one person – the new Minister. If it is known that the brief will be disclosed publicly under the FOI Act, there is a risk that it will be tailored to a different audience or with different interests in mind. This could compromise the quality and value of the brief and make it less relevant to its specific circumstance.

• It is important, in the early days of a new government, that the public service is not drawn into political controversy, or required publicly to defend the advice provided to a new government. An incoming brief that is not confidential may include only bland material that will not raise concern, and possibly be of less value to a new government. An

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associated risk is that the brief will not be comprehensive and will be replaced by oral briefings to the new Minister.

60. In my view those points are relevant to the present case, and provide a strong public interest basis for concluding that it would be contrary to the public interest to release the deliberative content that I have found to be conditionally exempt under s 47C. Having read the Department’s IGB, I am satisfied that those points are borne out by the deliberative content in the brief.

61. The period of greatest sensitivity is in the months immediately following the election when a new government is being formed and settling in (both Mr Parnell’s and Mr Dreyfus’s FOI requests were made within nearly a month of the election). There are many comments in the IGB that, if released in that period, would potentially be controversial and draw the Department or the Attorney-General into a debate or controversy that would confound the objective of placing the Attorney in the position of taking control of a new portfolio and establishing a trusting and effective working relationship with the Department. To give a small example, it is possible that release of the Department’s advice about which organisations and individuals are key stakeholders would prompt a debate or lobbying around the correctness of that list. This could detract from the proximate purpose of providing the Attorney with early advice that serves as a starting point as the Attorney takes control of the portfolio. A great many other issues covered in the IGB are perhaps more contentious in character.

62. I accept the Department’s submission that those public interest considerations apply also to the ‘Significant Litigation’ section of the Information Brief. Although it discusses matters that are on the public record, the purpose of the discussion is to enable the new Attorney-General to comprehend the significant issues in the portfolio and to provide the Department’s advice or options on future directions. The Department also submits that disclosure of this section could adversely affect the conduct of litigation by providing additional information to other parties to the litigation. I think that is speculative in light of the brevity of the information provided. The firmer basis on which to rest the exemption claim for this section is that it is similar in nature to other deliberative content in the brief.

63. Generally, if it was known that the deliberative content in the IGB was to be released publicly it seems highly likely that it would not be written in the frank and direct style that it is. This could compromise the quality and value of the IGB and make it less relevant to its specific circumstance. The same adverse effect would be likely to occur if the IGB was released at the time of this IC review, less than one year after the election. That is, release at this later time would be as likely to have an inhibiting effect on the content and style of an IGB at a future election.

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64. Against those considerations I have to weigh public interest factors that favour disclosure, drawn from ss 3 and 11B(3) of the FOI Act and from Mr Parnell’s and Mr Dreyfus’s submissions. In Crowe at [89] I identified, as general public interest factors, that release of further material from an IGB would:

• inform public debate on the implementation of the policy commitments of an incoming government …

• enable public scrutiny of the quality of the advice prepared for an incoming [Minister]

• provide the Australian public with access to the informed opinion of the Australian Public Service on important matters of national policy.

65. Both submissions echoed those points, but without elaboration. Both also submitted that the Department had overstated its case and that release of the IGB would not damage the working relationship with a new Minister or lead in future to less frank and honest advice being provided. Having read the IGB I do not share that confidence.

66. Both submissions also drew attention to the release by some agencies of portions of briefs prepared for Ministers in the former Labor Government. This is an issue I discussed in Crowe at [67]-[72]. While I acknowledged in Crowe that previous disclosures can be relevant to deciding whether release of similar information would be ‘contrary to the public interest’ or have a ‘substantial adverse effect’ upon a government activity, I concluded that it would be unsafe to make a finding based on a perusal of the material that had been published on disclosure logs. I noted the difficulty of drawing conclusions about the character, sensitivity, confidentiality and exemption status of IGBs prepared by different departments or in different periods of government.

67. Mr Dreyfus’s submission refers specifically to the partial release on the Department’s Disclosure Log of the Incoming Ministers Briefs provided to former Attorneys-General, the Hon Nicola Roxon MP, in December 2011, and to himself in February 2013. Those documents are not IGBs, but were br

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iefs provided to newly-appointed Mi

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nisters during the Government’s term. Some of the published material from those Briefs is similar to the material that I have decided is not exempt in the present case. However, the IGB in this case (on a surface comparison with the briefs to Ms Roxon and Mr Dreyfus) appears to contain both more and more direct analysis, commentary and advice about the challenges and priorities facing the Attorney-General following the election of a new Government.

8 www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformationdisclosurelog/DocumentsreleasedinresponsetoaFreedomofInformationrequestforacopyoftheincomingbriefsforAttorneyGeneral.aspx.

9 www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformationdisclosurelog/DocumentsrelatingtotheIncomingMinistersBrieffortheHonMarkDreyfusQCMP.aspx.

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68. Because it has become a separate issue, I note that the brief provided to Ms Roxon did contain a ‘Summary of Significant and Constitutional Litigation’. However, there were brief redactions from that summary, and my observation again is that some of the commentary in the IGB presently under consideration appears more advisory and sensitive than the summary provided to Ms Roxon.

69. The public interest considerations to which I earlier referred are specifically framed as considerations that apply to a brief prepared for a Minister following the election of a government, rather than a brief prepared upon the appointment of a new Minister. There is a relevant difference between the discretionary release by a Minister of portions of a brief received midway through the life of a government, and an IC review decision that required release of the deliberative content of an IGB provided to a Minister (and, by implication, all Ministers) following an election.

70. Those general observations are meant only to underline the difficulty of resolving the present case by placing heavy reliance on submissions about past practice. In the final analysis I am required to make findings about the particular document that has been requested in the proceedings before me. The Department has made an exemption claim for that document. I have decided that some of the material is not exempt, but am satisfied that release of the deliberative content of the IGB would be contrary to the public interest for the reasons stated above.

71. A remaining issue to discuss under this heading is whether it would be contrary to the public interest to release the material in the Information Brief that I have described as non-deliberative, relating to the role, structure, functions, personnel and resources of the Department. This issue arises only if I am wrong in finding that that material is not deliberative matter.

72. In that event, my view is that it would not be contrary to the public interest to release that material. It is not of the same character as the deliberative content that I have discussed above. Much of it is drawn from public sources and is also factual, descriptive or operational in nature. I do not see how release of this material would lead it to being presented differently in a subsequent brief, or not being included at all. There is nothing inherently contentious or sensitive about this material.

Legal professional privilege exemption (s 42) 73. The Department, in response to my preliminary view, submitted that the

‘Significant Litigation’ section of the ‘Information Brief’ contained legal advice that is exempt from disclosure under s 42. That section applies to material that ‘would be privileged from production in legal proceedings on the ground of legal professional privilege’. The Department did not develop this submission, other than to note that this section of the IGB was prepared by qualified legal staff acting in a professional capacity to provide independent advice to the

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Attorney-General, and for the dominant purpose of providing legal advice about proceedings to which the Commonwealth is a party.

74. It is not necessary that I resolve this issue in light of other findings. However, I doubt that s 42 does apply to this material. Only a few sentences contain legal advice as such, and that advice is brief and set in the different context of advising the Attorney on the functions, activities, priorities and challenges in the portfolio. It is doubtful whether the advice is situated in a legal-adviser client relationship, or was given for the dominant purpose of providing legal advice to the Attorney.10

Access to edited copy (s 22) 75. Section 22 of the FOI Act requires an agency to provide access to an edited

copy of a document from which exempt material has been deleted, if an applicant agrees to a partial release, and –

… it is reasonably practicable for the agency … to prepare the edited copy, having regard to:

(i) the nature and extent of the modification; and

(ii) the resources available to modify the document (s 22(1)(c)).

76. That requirement encompasses a broad range of considerations. One that is apparent from the text of s 22(1)(c) is whether the editing process will be so extensive or time intensive that it is not a practicable step to undertake. Another matter that can be considered, listed in the FOI Guidelines at [8.38], is whether on ‘a common sense approach’ the number of deletions would be so many that the remaining document ‘would be of little or no value to the applicant’. That aligns with other OAIC advice that agencies should explore with applicants alternative or administrative access options that enable information contained in documents to be made available in a helpful and less expensive manner: FOI Guidelines at [3.3].

77. The objects of the FOI Act stated in s 3 can also be relevant to the editing process. Among the objects are to increase participation, scrutiny, discussion, comment and review of government activities (s 3(2)); and to facilitate access promptly and at the lowest reasonable cost (s 3(4)). Those objects are not served if extensive editing is required that leaves merely a skeleton of the former document that conveys little of its content or substance.

78. Those considerations are relevant to this case in two respects. First, as I have already foreshadowed, the non-exempt material in the Strategic Brief comprises only heading pages and half the Secretary’s letter. My view is that it is not reasonably practicable, taking account of the objects of the FOI Act, to prepare an edited copy of the document that contains only that material.

10 See the FOI Guidelines at [5.123]—[5.128].

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79. Secondly, it is implicit in what I have said above that there are parts of the IGB – probably many parts – that could individually be released without damaging the working relationship between the Department and the Attorney-General and the support the Department is able to provide during the transitional phase of a new government. This applies particularly to the large amount of factual, descriptive and publicly-known material in the IGB. Conversely, other portions of the IGB contain commentary that is more overt and perhaps more sensitive. This intermingling of material that either individually warrants protection against disclosure or that could be released without consequence occurs throughout the lengthy IGB and across an extensive range of topics.

80. In my view it is not reasonably practicable in an IC review process to work through the IGB, topic by topic, comment by comment, to decide on which side of the line each part falls. It would be difficult for the Commissioner conducting the IC review to make that assessment about the diverse contents of such a comprehensive document without receiving detailed submissions from the Department and conducting a lengthier IC review process.

Application of the FOI Act to IGBs 81. In Crowe at [97]—[101] I discussed the application of the FOI Act to IGBs. I

noted that the Freedom of Information Commissioner and myself, in a submission to the review of the FOI Act by Dr Allan Hawke AC,11 expressed support for the approach taken in the Queensland Right to Information Act 2009, Schedule 3, Item 2. That Act provides that an incoming Ministerial brief is exempt from disclosure for ten years after it is brought into existence, but after that period must be released if requested unless another exemption applies to particular content in the brief. Our submission did not suggest a specified period for this special exemption, other than noting that it should be longer than the length of the three year election cycle.

82. The present case may bear on the Government’s and Parliament’s assessment of that or any analogous proposal. This case illustrates the difficulty, in an FOI review process, of deciding which portions of a comprehensive brief are exempt and which are not. Many and perhaps most paragraphs in the IGB in this case could be individually and separately released without consequence. Yet the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government. Inevitably, therefore, one is drawn back to evaluating the exempt status of specific content by its inclusion in a document of a particular kind.

83. A special exemption for IGBs would not preclude an individual Minister or agency from making a discretionary decision to release portions of a brief, either soon after an election or the appointment of a new Minister or at a later

11 Attorney-General’s Department, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 (August 2013).

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time. Agencies and Ministers are well-placed to decide upon discretionary release, bearing in mind they have the day-to-day responsibility for the extensive range of portfolio issues and challenges that are discussed in the brief. An important object declared in the FOI Act is that it is not intended to prevent or discourage agencies and Ministers from publishing or providing access to documents, including exempt documents (s 3A).

Decision 84. Under s 55K of the FOI Act I vary the decisions of the Department made on

20 November 2013 under the FOI Act, refusing access to Mr Parnell and Mr Dreyfus to the Incoming Government Brief prepared for the Attorney-General. I grant access to the ‘Information Brief’, except for the following pages: pages 33 – 36 (‘Significant Litigation’), pages 45—49 (‘Portfolio Budget and Staffing’), pages 83 – 105 (‘Key Stakeholders’), and the ‘Key Issues’ section of each of the ‘Portfolio Agency Summaries’ in pages 53 – 81. As to the remainder of the IGB, I affirm the Department’s decision to refuse access to the applicants, on the basis that the material is conditionally exempt under s 47C of the FOI Act and to give access at this time would, on balance, be contrary to the public interest.

Professor John McMillan Australian Information Commissioner 30 July 2014 Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $861, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.

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