Discuss about the Crowe and Department of the Treasury [2013] AICmr 69- analysis.
The case relates to an application to get access to a few pages from the “blue book” prepared for the 2010 election of the Australian parliament[1]. The application was made by one David Crowe who was a journalist. The application was denied on the grounds that the documents were exempted by virtue of the provisions of Section 47C of the Freedom of information Act, 1982[2]. Thus, such documents would not be released unless such a release was in public interest as per the provisions of Section 11A (5). The rejection of the application was challenged in Court and the Judge affirmed the decision on the grounds that these documents were exempted following the provisions of Section 47C and 47E.
At paragraph 51 of the judgment the judge observed that the “Frankness and Candour” claims require the presence of the five factors laid down by the judgment in Re Howard and the Treasurer[3]. In resolving the claims for the exemption the judge observed that the duty he was tasked with was to affirm, amend or set aside the rejection of the application by the Treasury. Protection of candour and confidentiality of these documents were taken as a public interest consideration. The second factor stated in Re Howard and the Treasurer was that disclosures which will show frankness and candour in future pre-decisional interactions is contrary to public interest.
Section 11A of the Freedom of information Act, 1982 regulates grant of access to documents by application or request[4]. Freedom of Information Amendment (Reform) Act 2010 introduced Section 11B. Section 11B dealt with exemptions on public interest. Section 11B (1) defines the scope of the section and states that the provisions of the section applies in situations where it must be determined if the exemption of a document would ideally be contrary to public interest[5]. Section 11B (3) defines circumstances that work in favour of grant of access to a particular document. These are if the grant of access to the documents would ideally help in promoting the objects of the Act, if such access would inform debate on a matter which is important to the public, facilitate efficient public oversight on mobilization of public funds through government expenditure or if the documents would grant access to personal information about the person himself. Section 11B (4) of the act defines factors which would be irrelevant in determining if access to a particular public document would be contrary to public interest. These are if the access to such documents would ideally cause embarrassment or a loss of confidence from the public for the commonwealth government, if such a document would cause any person to misconstrue the document, the organizational position of the author of the requested document and if granting access to the company would lead to unnecessary debates on any issues. Section 11B (5) of the act provides a guideline in interpreting such applications and states that in determining if access to documents should be granted the applying entity should consider all recommendations made by the Information Commission as per Section 93A of the Act.
In affirming the Department of Treasury’s decision, the judge held at paragraph 59 of the judgment that though this instance relates to access to some pages of a document the tradition through which a minister gets access to documents from a public service and the fact that the document would have confidential and candid commentary for the Minister’s consideration must be taken as a factor relating to the frankness and candour of the document in question. The pages requested for were the overview section of the “Blue book” formulated by the Department of Treasury (page 2), pages relating to climate change and market based mechanisms (pages 24 to 27) and an attachment to the overview section (pages 42 to 43).
From the above mentioned pages it can be inferred that requesting these pages could not be classified as a disclosure that would promote the objects of this act. It would not spark a debate on a subject that is of public importance. Though the pages relating to market based mechanisms could be related to public oversight of government expenditure the same cannot be directly attributed to it. Furthermore, these documents cannot be construed to contain material personal information about the person applying for them as the pages specifically relate to the government’s political stand on issues. Thus following the provisions of Section 11B (3) none of the factors in favour of grant of access apply to the present scenario[6].
When affirming the rejection of the application however the judge observed that the traditions of the processes employed when a Minister receives briefs from a public service must be considered in such a situation. By virtue of the provisions of Section 11B (4) (c) however, the position of the author is irrelevant to the application[7]. In considering the traditions of the processes employed when a Minister is receiving a brief and in considering the candid recommendations made by the public service authority is considering the position of the author a the brief would ideally be drafted by the position holding the apex position in the Department of Treasury (the commissioner). Thus, this observation is in contravention of Section 11B of the act to the extent that it interprets an irrelevant factor as a material consideration in rejecting the application for access to these documents[8]. This would mean not necessarily mean that the judge erred in deciding in favour of the Department of Treasury however this consideration of an irrelevant factor as a material consideration cannot be held a valid cause for rejecting the application of David Crowe as this is strictly confined to the position held by the author of the document. Thus, the requested documents (the pages from the “blue book”) should ideally have been disclosed to the applicant if any of the elements of Section 11B (3) can be successfully established by the applicant.
Statutes
Freedom of information Act, 1982.
Freedom of Information Amendment (Reform) Act 2010.
Cases
Crowe and Department of the Treasury [2013] AICmr 69.
Re Howard and the Treasurer [1985] 7 ALD 626.
Articles
Cordis, Adriana S., and Patrick L. Warren. “Sunshine as disinfectant: The effect of state Freedom of Information Act laws on public corruption.” Journal of Public Economics 115 (2014): 18-36.
Pozen, David E. “Freedom of Information Beyond the Freedom of Information Act.” U. Pa. L. Rev. 165 (2016): 1097.
Relly, Jeannine E., and Carol B. Schwalbe. “Watchdog journalism: India’s three largest English-language newspapers and the Right to Information Act.” Asian Journal of Communication 23.3 (2013): 284-301.
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