More Unproved assertions by the Department of Home Affairs invoking the operations exemption (section 47E of the FOI Act)

In Asylum Seeker Resource Centre and Department of Home Affairs (Freedom of information) [2020] AICmr 7 the Information Commissioner rejected the Department’s reliance on s 47E(d) (substantial adverse effect on the proper and efficient conduct of the operations of an agency) and s 47(1)(b) (commercially-sensitive information) to block release of various Serco ‘behaviour management’ policies.

The objections are properly described as vexatious. In no way could it seriously have been argued that these internal policies are commercially sensitive. Nor could they seriously ever have been argued to have attracted the operational exemption, since the very conduct that the policies dictate are routinely implemented (and abused).

Of significance in the Commissioner’s reasons is [38] where she referred to the FOI Guidelines:

The FOI Guidelines further explain:

… the predicted effect needs to be reasonably expected to occur… There must be more than merely an assumption or allegation that damage may occur if the document were to be released. …
An agency cannot merely assert that an effect would occur following disclosure….

Despite the Guidelines, it is significant that the Department routinely engages in bare assertion that s 47E applies to block release of information that applicants at law are entitled to. However, practicalities (including the Department’s routine contravention of time limits, and the chronic under-resourcing of the Office of the Australian Information Commissioner by the government), often make it difficult if not impossible to vindicate applicant rights under the FOI Act. Proceedings seeking mandamus, set up with correspondence to protect the costs position, might achieve some degree of compliance where the lack of court action would otherwise result in no compliance at all.

The released documents are here.

Reading down secrecy duties of public servants

In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, the respondent argued that the secrecy provision in the Income Tax Assessment Act 1936, section 16 (as it then existed) which required a public servant to keep certain matters secret unless disclosure was part of the public servant’s usual ‘duty’ (a word appearing in the then section 16), meant that the requirement to provide reasons for administrative decisions under the Administrative Decisions (Judicial Review) Act 1977, s 13(2) did not apply.

This was rejected. Gummow J noted that the ‘duty’ of a public servant included a duty to comply with other laws, such as the obligation to provide reasons under the Administrative Decisions (Judicial Review) Act. At 84-85 his Honour said:

The [duty] indeed required … observance and compliance with obligations arising at common law and in equity, save as excluded or supplanted by statute: see Hogg Liability of the Crown pp 147–160. These general law obligations would include those of care and skill (Carpenter’s Investment Trading Co Ltd v Commonwealth (1952) 69 WN(NSW) 175 at 178), fidelity (Reading v Attorney-General [1951] AC 507) and confidentiality (Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50–1 ; 32 ALR 485). Also included, in my view, in the exception is what is appropriate to discharge or satisfy requirements or duties imposed pursuant to procedures existing under statutes other than the Tax Act.

Disclosure of third party’s private information under FOI not unreasonable if not disclosure ‘to the world at large’

In FL and Department of Human Services [2015] AICmr 30 the Information Commissioner rejected an argument from the agency that disclosure of information sought should be taken as disclosure ‘to the world at large’ and therefore ‘unreasonable’.

The Commissioner followed decisions from the Victorian Court of Appeal, the Appeal Panel of the NSW Administrative Decisions Tribunal and the Queensland Information Commissioner.

In Victoria Police v Marke [2008] VSCA 218 the Court of Appeal set aside a VCAT decision which wrongly assumed that disclosure of the information sought would be disclosure to the world at large.  The evidence before VCAT was that the applicant was a professional police officer who understood sensitive and confidential information, and explicitly, that he would not release the information to the world at large.

The Court of Appeal criticised VCAT’s assumption as ‘a fiction … an absolutely worst case scenario’ (Weinberg J); that the applicant’s use of the information may be relevant to the balancing exercise in deciding whether disclosure would be ‘unreasonable’ (Pagone AJA); and that to assume so would almost always work against disclosure, which is contrary to the object of the FOI Act of giving ‘the greatest possible public access to Government information’ (Maxwell P).

Marke was followed in Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 in which it was concluded that the decision maker was wrong to ‘exclude from its consideration matters pressed by the applicant personal to the applicant such as the purpose of the application and promises of limited use’ (emphasis added).