University of Tasmania Law Review
Freedom of Information Reform: Does the New Public Interest Test for Conditionally Exempt Documents Signal the Death of ‘the Howard Factors’?
The amendments to the Freedom of Information Act 1982 (Cth) (‘the Act’) implemented by the Freedom of Information Amendment (Reform) Act 2010 (Cth), including setting out pro-disclosure objectives of the Act more clearly and giving greater clarity to the public interest test by shifting the balance in favour of disclosure go a significant way towards addressing previously identified shortcomings in the Act. This article examines changes to the exemption provisions in Part IV of the Act with a particular focus on the deliberative processes conditional exemption and the factors that can be taken into account when seeking to claim it. Of the five ‘Howard factors’ set out in Re Howard and the Treasurer that were previously relevant to making decisions about where the balance of public interest lies in determining whether documents should be released, two have been eliminated in their entirety while another two appear to have been significantly curtailed. The Howard factor associated with the policy development functions of an agency remains relevant and will likely continue to be applied.
The Australian Law Reform Commission and Administrative Review Council have stated that:
Without information people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. Government information is a national resource. Its availability and dissemination are important for the economic and social well-being of society generally.
The principal impediment to the availability and dissemination of information under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) is the exemption provisions in Part IV of the Act. Included among the exemptions are provisions dealing with documents evidencing the deliberative processes of ministers, government departments and agencies. The deliberative processes of an agency include its policy making and decision-making processes associated with performing functions of the agency. An exemption from disclosure of a document may be claimed when it falls within the deliberative processes of an agency and its disclosure would be contrary to the public interest.
Underpinning the freedom of information reforms has been a desire to promote a pro-disclosure culture in government. The explanatory memorandum to the Freedom of Information (Reform) Act 2010 (Cth) (‘the FOI Reform Act’) states that:
The primary purpose of the Bill is to make major reforms to the Freedom of Information Act 1982 (FOI Act) to promote a pro-disclosure culture across government and to build a stronger foundation for more openness in government.
The changes that most obviously seek to give effect to this desire are the new objects provisions in sections 3 and 3A of the FOI Act and the changes to the exemption provisions in Part IV of the Act. The revised objects provisions link access to government information with representative democracy. Changes to the exemption provisions include a new conditionally exempt category of documents which is subject to a public interest test. The combination of new objects provisions and a public interest test applying to a wider variety of documents will make it more difficult for government agencies to withhold sensitive documents from public scrutiny. Despite the changes, there remain impediments to accessing documents evidencing the deliberative processes of agencies and these are likely to inhibit the public’s ability to meaningfully influence the policy development functions of government during its most critical phases.
The FOI Reform Act has made significant changes to the categories of exemptions agencies are able to claim. The most significant change is the creation of a new ‘conditionally exempt’ class of documents which operates in addition to documents that are ‘wholly exempt’.
If a document is wholly exempt, an agency is under no obligation to release it. There is no need to consider the public interest.
The FOI Reform Act reduces the number of wholly exempt document categories. Executive Council documents (section 35), certain documents arising out of companies and securities legislation (section 47) and documents relating to the conduct of an agency’s industrial relations (subsection 40(1)(e)) have been removed from the FOI Act. A number of other exemptions have been moved into the new conditionally exempt category.
Substantive changes have also been made to several other classes of wholly exempt documents. These can be briefly summarised as follows:
Section 34 of the FOI Reform Act amends the scope of the exemption for cabinet documents and introduces a dominant purpose test. The exemption applies to:
• cabinet submissions that are proposed for submission to Cabinet, but were never actually submitted: subparagraph 34(1)(a)(i);
• documents prepared for the dominant purpose of briefing a Minister on a Cabinet submission: paragraph 34(1)(c); and
• drafts of documents otherwise covered by this exemption: paragraph 34(1)(d).
The fact that drafts of cabinet submissions are now exempt broadens the scope of the exemption as previously this was not the case. A cabinet submission will now only be exempt if it was brought into existence for the dominant purpose of submission to Cabinet.
The introduction of a dominant purpose test clarifies ambiguity over the meaning of ‘purpose’ in the FOI Act whereupon documents that were submitted to Cabinet or proposed to be submitted to Cabinet were previously exempt if they were ‘brought into existence for the purpose of submission for consideration by the Cabinet’.
In the Full Federal Court’s decision in Fisse v Secretary, Department of Treasury, Buchanan J commented that there was no suggestion that this provision ‘required the identification of a sole, or even a dominant purpose before it was engaged’. Justice Buchanan accepted that the purpose referred to does not have to be the sole purpose for which the document was created. Justice Flick, in contrast, considered that “the ‘purpose’ to be established referred to the ‘dominant purpose or one of a number of significantly contributing purposes’ or ‘causative in the sense that, but for its presence’ the document would not have been prepared.’
The FOI Reform Act clarifies this ambiguity by providing that a dominant purpose test must be established before the exemption can be claimed.
Subsection 34(4) makes it clear that a document is not exempt solely because it is attached to a cabinet submission.
Subsection 42(1) exempts documents that would be privileged from production in legal proceedings on the grounds of legal professional privilege.
Subsection 42(2) introduces a new qualification to the legal professional privilege exemption and confirms that the exemption is not available if privilege has been waived.
Subsection 42(3) provides that operational information that is used by agencies in making decisions or recommendations affecting members of the public (within the meaning of section 8A and which must be published under the Information Publication Scheme) cannot be exempt on the grounds of legal professional privilege.
Subsection 43(1) previously exempted documents that disclosed trade secrets, commercially sensitive information and information relating to business affairs. The FOI Reform Act has split this exemption into two parts. New subsection 47(1) wholly exempts documents that disclose trade secrets (paragraph 47(1)(a)) and commercially valuable information (paragraph 47(1)(b)). Subsection 47(2) mirrors previous section 43(2) and confirms that the exemption does not apply where access is sought by the person or organisation whom the information is about.
The business affairs exemption, previously in paragraph 43(1)(c), now appears in section 47G and is conditionally exempt.
The new ‘conditionally exempt’ class of documents established by the FOI Reform Act encompasses a similar number of FOI exemptions. These may be listed as follows:
• documents pertaining to Commonwealth-State relations: section 47B (previously section 33A);
• documents evidencing the deliberative processes of an agency (the internal working documents exemption): section 47C (previously section 36);
• documents affecting the financial or property interests of the Commonwealth: section 47D (previously section 39);
• documents concerning the operations of agencies: section 47E (previously section 40);
• documents containing personal information: section 47F (previously section 41);
• documents dealing with business affairs: section 47G (previously subparagraph 43(1)(c));
• documents relating to research: section 47H (previously section 43A); and
• documents relating to the economy: section 47J (previously section 44).
This article deals with the most wide-ranging of the exemption provisions, being section 47C covering documents evidencing the deliberative processes of an agency (formerly section 36 – the internal working documents exemption).
A ‘deliberative process’ involves the exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
Deliberative processes must relate to the functions of an agency, minister or the government of the Commonwealth and include both policy making and the processes undertaken in administering or implementing a policy. The functions extend to developing policies in respect of matters that arise in the course of administering a program. Non-policy decision making processes required when carrying out functions can also be deliberative processes.
Section 36(1)(a) of the FOI Act previously provided that documents were exempt from disclosure if their disclosure under the Act would disclose matter in the nature of, or relating to, opinion, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes of an agency or a minister.
Section 36(1)(b) contained a separate and additional public interest test. The test required an agency to establish that the public interest in the non-disclosure of a document for which an exemption was claimed outweighed the public interest in favour of disclosure.
The focus of the test was whether disclosure of a document would be contrary to the public interest rather than whether disclosure was in the public interest: Re Burns and Australian National University. In considering the public interest, a decision maker had to determine and then weigh-up the relevant factors for and against disclosure.
What constituted ‘the public interest’ was not defined in the FOI Act. The Senate Standing Committee on Constitutional and Legal Affairs, in reference in the FOI Bill 1978, described the concept of public interest as a ‘convenient and useful concept for aggregating any number of interests that may bear upon a disputed question that is of general – as opposed to merely private – concern’.
A matter that is of interest to the public is not necessarily the same as a matter of public interest: Director of Public Prosecutions v Smith. Nor is the public interest synonymous with the government’s interests: Bartlett and Department of the Prime Minister and Cabinet.
At its core, the public interest is concerned with instances where public disclosure of a document would prejudice the integrity and viability of the decision making process:
Broadly speaking section 36 [now section 47C] can be seen as an attempt by the legislature to protect the integrity and viability of the decision making process. If the release of documents would impair this process to a significant or substantial degree and there is no countervailing benefit to the public which outweighs that impairment then it would be contrary to the public interest to grant access.
In considering the on-going applicability and relevance of factors that have previously been taken into account in determining where the balance of public interest lies, the notion of preserving the integrity and viability of the decision-making process is a key consideration.
In Re Howard and the Treasurer, the Administrative Appeals Tribunal (‘AAT’) set out five considerations (‘the Howard factors’) that needed to be taken into account when making decisions about whether the non-disclosure of a document which was potentially exempt from disclosure under section 36(1)(a) outweighed the public interest in favour of disclosure under section 36(1)(b). Following consideration of relevant authorities, President Davies set out the elements of the public interest to be considered and the circumstances in which it was considered that the reservation of documents from public view should be maintained. The five Howard factors were there stated as follows:
(i) the higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed;
(ii) disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest;
(iii) disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest;
(iv) disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest;
(v) disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.
The FOI Reform Act implements three significant changes to the public interest test. A single public interest test has been introduced to apply to each of the conditional exemptions, the new public interest test is defined to include certain factors that must be taken into account (where relevant) and some factors that must not be taken into account. The public interest test also now applies to a wider range of exemptions.
In so far as the deliberative processes conditional exemption is concerned, the new provisions impact directly on the capacity of agencies to rely on some of the factors previously available for the purpose of refusing a request for documents to be released.
The combined effect of sections 11B and 47C of the new legislation will operate to eliminate two of the Howard factors in their entirety. Those factors not rendered obsolete by the new provisions could also potentially be reshaped by guidance issued by the Australian Information Commissioner pursuant to the powers granted to that office under section 93A of the FOI Reform Act.
Part 6 of the current guidelines (issued by the Information Commissioner in March 2011) states in respect of the Howard factors that:
Three of those factors are now declared to be irrelevant considerations by s 11B(4) of the Act (the high seniority of the author of the document in the agency to which the request for access to the document was made, misinterpretation or misunderstanding of a document, and confusion or unnecessary debate following disclosure).
‘Misinterpretation or misunderstanding’ of a document and ‘confusion or unnecessary debate’ following disclosure are stated in the guidelines as being two separate and distinct factors. This is not the case. The Howard factor dealing with disclosure of documents which do not fairly reflect the reasons for a decision subsequently taken is not eliminated by the express words of the FOI Reform Act.
Subsection 47C(1) of the FOI Act sets out a general rule in respect of public interest conditional exemptions pertaining to the deliberative processes of government agencies. It provides that:
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 an agency or Minister or of the Government of the Commonwealth.
Subsection 47C(2) states that deliberative material does not include operational information or purely factual material. ‘Operational information’ is defined broadly in section 8A as information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public.
Subsection 47C(3) provides that section 47C does not apply in respect of reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts (or of a body or organisation prescribed by the regulations established within an agency) or the record of, or a formal statement of reasons for, a final decision given in the exercise of a power or of an adjudicative function.
Item 2 of the table that appears in section 31A of the FOI Act provides that where a document is a conditionally exempt document under Division 3 (dealing with public interest conditional exemptions) access to the document is required to be given unless it would be contrary to the public interest. The third column of Item 2 refers readers to subsection 11A(5) and section 11B of the FOI Act for the purpose of determining what those public interest factors are.
Subsection 11A(5) of the FOI Act reiterates the sentiments expressed in section 31A:
The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
In essence, this provision means that conditionally exempt documents will only be exempt from disclosure if their disclosure would be contrary to the public interest at a particular point in time. A decision to refuse access to a document because it would be contrary to the public interest for the purposes of subsection 11A(5) thus depends on the circumstances relevant at the time the decision is made. A document that is exempt at one point in time may not be exempt at a later time.
In order to determine what falls within the purview of the public interest and what does not, s 11B sets out factors that are to be taken into account that favour access to a document being granted and factors that must not be taken into account in deciding whether access would, on balance, be contrary to the public interest. If access to a conditionally exempt document is refused, the statement of reasons supporting the decision must enunciate the public interest factors taken into account in making the decision, including those identified in section 11B.
Subsection 11B(3) identifies factors favouring access being granted in the public interest. The list is non-exhaustive and other factors favouring access may be taken into account if relevant to the question of giving access to a document. The factors include that the release of a document would:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure; and
(d) allow a person to access his or her own personal information.
The reference to the new objects provision in paragraph (a) places emphasis on ‘increasing scrutiny, discussion, comment and review of the Government’s activities’ (see paragraph 3(2)(b)) insofar as the public interest test is concerned. This may be contrasted with the previous wording of the objects provision of the FOI Act in which the general right of access was expressly qualified in paragraph 3(1)(b) by reference to ‘exceptions and exemptions necessary for the protection of essential public interests’.
Section 3A has been added to the objects provision and confirms that an agency may disclose information that would constitute exempt material (subject to certain secrecy provisions). The inclusion of this section emphasises that agencies should actively promote the release of government information.
Informing debate on a matter of public importance (paragraph 11B(3)(b)) and promoting effective oversight of public expenditure (paragraph 11B(3)(c)) are factors, although not specifically referred to in the previous version of the FOI Act, that were already taken into account when assessing whether disclosure of a document would be in the public interest. Paragraph (c) may be useful in terms of gaining access to documents held by third parties who are delivering services on behalf of the Commonwealth government in the capacity as contractors (including providing access to tender documents).
Of more relevance to ascertaining the ongoing applicability of factors influencing the public interest test is subsection 11B(4) which lists several factors that are now considered irrelevant for the purpose of deciding whether access to a document should, on balance, be granted. These factors have previously been commonly identified as arguments against giving access to a document. The effect of this provision is that decision makers can no longer rely on the listed factors for the purposes of weighing up competing considerations. The factors not to be taken into account are that:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Several of the factors that are now considered irrelevant for the purpose of determining where the balance of public interest lies will directly impact on the ongoing applicability of the Howard factors. This is particularly so when combined with the imperative of promoting the objects of the Act in such a way as to promote a pro-disclosure culture within government agencies.
The Information Commissioner’s guidelines to the conditional exemption provisions make it clear that agencies should be cautious in applying the Howard factors in light of the changes to the FOI Act. In deciding where the balance of public interest lies, the guidelines suggest that regard should be had to a more extensive range of public interest factors that may favour or be against disclosure.
The first of the Howard factors is that the higher the office of the person between whom communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.
The legitimacy of withholding documents detailing communications between persons at senior levels was queried in Rae and Department of Prime Minister and Cabinet. There, Deputy President Todd of the AAT stated that:
I do not consider that because the documents are ‘high-level’ correspondence their disclosure is necessarily contrary to the public interest. It may be that high-level correspondence is more likely than lower-level material to have characteristics which make its disclosure contrary to the public interest. If so, it is those characteristics, and not the mere fact of it being high-level, which makes its disclosure contrary to the public interest.
Paragraph 11B(4)(c) of the FOI Act now makes it clear that the seniority of the author of a document will be irrelevant in determining whether access to a document is contrary to the public interest. When combined with paragraph 11B(4)(a), the seniority of persons between whom communications pass and the sensitivity of the documents the subject of a freedom of information request are no longer relevant considerations in determining where the balance of public interest lies.
In the context of the exemption provisions generally, the sensitivity of a particular document may well be relevant in considering whether to release it. This would be the case in respect of documents with significant defence or security implications, for example. Such documents will be exempt on the basis of other provisions of the FOI Act rather than in reliance on a public interest test concerned with the internal deliberations of the agency concerned.
A second Howard factor that will be rendered irrelevant by the new legislation is the proposition that disclosing a document that leads to ‘confusion and unnecessary debate’ resulting from a ‘disclosure of possibilities considered’ tends not to be in the public interest. Paragraph 11B(4)(d) states that a decision maker must not take into account whether access to a document could result in confusion or unnecessary debate. In addition, paragraph 11B(4)(b) provides that access to a document that could result in any person misinterpreting or misunderstanding the document is irrelevant to determining where the balance of public interest lies in respect of a particular application for a disclosure to be made.
The risk of confusion and misunderstanding has, in the past, been relied upon by agencies to support arguments that release of certain documents would be contrary to the public interest (see, for example, McKinnon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs). The new provisions, however, make it abundantly clear that this Howard factor will no longer be a relevant consideration in determining where the balance of public interest lies in deciding whether to grant access to a document.
While it is the contention of this article that none of the remaining Howard factors have been extinguished completely by the FOI Reform Act, there seems little doubt that the ongoing influence and applicability of the remaining factors has been diminished to a significant degree. The inhibition of frankness and candour argument, of itself, is unlikely to support claims for documents to be exempted. To survive in any form, it will likely need to be combined with other factors supporting a claim for exemption.
As to those other factors, scope exists for exemptions to be claimed in respect of the policy development and ‘not a fair reflection of reasons for decision’ Howard factors and it is perhaps in combination with one or more of these arguments that ‘frankness and candour’ could continue to be applied.
The most commonly criticised Howard factor is that disclosure of documents which are likely to inhibit the frankness and candour of government officials in future pre-decisional communications are contrary to the public interest. This factor is based on the notion that disclosure of a document claimed to be exempt will have the effect that persons required to provide their opinions or advice in the future will be less frank and candid in expressing their views.
Rick Snell criticised a perceived inhibition of frankness and candour on the part of government officials as a legitimate basis for withholding documents on a number of grounds including failure to recognise the possibility of countervailing public interest arguments in favour of disclosure, the implication that officers do not give advice which will withstand scrutiny beyond the Minister, the increasing reluctance of courts to countenance frankness and candour arguments and the fact that the concept itself runs anathema to the objects of the Act.
On the specific issue of countervailing public interest arguments favouring disclosure, Roman Tomasic commented that:
Fears that officials may be inhibited from making candid and free reports, because of their knowledge that their reports could be released, have not materialised. In fact, it seems that the quality of written reports may well have improved for the very reason that they might be publicly scrutinised.
In her submission to the Department of Prime Minister and Cabinet on an exposure draft of the FOI Reform Bill 2009, Moira Patterson commented in respect of the frankness and candour argument that:
[I]t is important to delimit the scope of the public interest test so that it cannot be used to justify non-disclosure simply on the basis that some public servants might feel less comfortable if their deliberations were subjected to public scrutiny. To allow it to operate in this way has the consequence of removing from scrutiny the very documents to which members of the public need to have access in order to be able to participate meaningfully in, or to be able to understand and evaluate, the decision-making of government agencies.
Such concerns echo those expressed by the Australian Law Reform Commission and the Administrative Review Council at the outset of this article.
The FOI Reform Act does not expressly eliminate the potential inhibition of frankness and candour on the part of government officials as a relevant consideration for the purpose of determining where the balance of public interest lies when considering a freedom of information request. An examination of relevant authorities does however cast doubt on the ongoing relevance of this consideration as an effective determinant of public interest claims.
Re McCarthy and Australian Telecommunications Commission has been cited as a case sympathetic to the frankness and candour argument. While acknowledging the existence of the Howard factors, the majority in this case rejected the frankness and candour argument as being relevant to the facts at issue on the basis of an absence of cogent supporting evidence. Similarly, in the case of Haneef v Department of Immigration and Citizenship, while ‘frankness and candour’ were pleaded by Counsel for the department in that matter, the principles associated therewith were not alluded to in the reasons for decision. The Tribunal exempted one document on the basis that it could ‘readily be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case’. As stated above, the FOI Act now expressly precludes freedom of information requests from being decided on the basis that they may create confusion or unnecessary public debate.
A particular tenet of the frankness and candour argument countenanced in other cases may be undermined by the new legislation. In Murtagh and Commissioner of Taxation, the AAT referred to leading authorities on public interest immunity claims in Australia and overseas and stated that:
The candour and frankness argument is not new. It achieved pre-eminence at one time but has now been largely limited to high level decision-making and policy making.
With the seniority of persons between whom communications pass no longer a relevant consideration for the purpose of determining where the balance of public interest lies, the scope of the frankness and candour Howard factor appears to have been diminished to a considerable extent (though not eliminated entirely).
While the inhibition of frankness and candour remains a basis upon which agencies may avail themselves in seeking to withhold documents from disclosure, this particular factor is only likely to be applied in circumstances where there is clear evidence to support the basis for the claim. It is also unlikely that this factor will be upheld as a sole reason justifying non-disclosure.
In so far as the policy making Howard factor is concerned, the authorities reveal that claims for exemption from disclosure in this area are often interspersed with arguments associated with an inhibition of frankness and candour. In Terrill and the Department of Transport and Regional Services, the AAT accepted arguments that Ministers should be able to receive suggestions as to the strategy to be adopted in meetings promulgating policy without concern that those suggestions will be publicly released. Senior Member Dwyer commented that:
The authorities do accept that there is a public interest in protecting the integrity of the decision making process by clearly separating the final decision-making or policy-making step and the reasons therefore, from the opinions and advice of the officials who contributed to the consideration.
As is the case in respect of frankness and candour, the FOI Act does not preclude an exemption being claimed in respect of documents that have been created in the course of developing and promulgating policy. In this respect, policy documents appear to be considered more sensitive than other categories of deliberative processes documents, although caution needs to be exercised such that a balancing test of what is in the public interest should nevertheless be applied having regard to the specific content of the document. To do otherwise creates a risk of applying a class based exemption for policy documents which would run counter to the underlying structure of the exemption.
A document will not automatically be exempt because it happens to evidence communications made in the course of developing or promulgating policy. Where, however, factors exist that may impinge upon government’s ability to carry out these functions (such as by prematurely releasing proposals for significant reforms or foreshadowing reductions in benefits schemes during budget deliberations) the public interest will likely be weighted in favour of an exemption being lawfully claimed (at least in so far as agency decision makers are concerned).
Balanced against these considerations in weighing up the public interest is that in order to exert influence over the policy making functions of government it is precisely this type of information to which the public needs to be provided with access. In this respect, in order to meaningfully influence policy deliberations, the timeliness of access to documents will often be crucial.
Despite the best of intentions, the new regime does little to assist unsuccessful applicants in gaining access to documents in a timely manner. The need to pursue an Information Commissioner review is likely to lengthen the timeframe required to gain access to a document rather than diminish it. While agencies are statutorily obliged to make a decision on an FOI request within 30 days of its receipt, the FOI Reform Act imposes no such obligation on the Information Commissioner. The result of this is that the public is unlikely to gain access to sensitive policy documents in a timely manner during important periods in the policy development process.
In summary, the policy making exemption is likely to continue to be applied by agencies, particularly in relation to sensitive policy documents. Even if the exemption is applied erroneously by an agency and overturned on review, it is unlikely that unsuccessful applicants at first instance will be able to obtain access to particular documents sought within an expeditious timeframe. This limits the public’s ability to meaningfully participate in the policy development process.
The final Howard factor provides that disclosure of documents which do not fairly reflect the reasons for a decision taken may be unfair to the decision maker and could therefore prejudice the integrity of the decision making process. As previously stated, the Information Commissioner has construed this Howard factor as being solely concerned with ‘misleading the public’ and therefore predicated on the notion of a person ‘misinterpreting or misunderstanding’ the document. In light of existing authority, this presumption is understandable although not necessarily correct.
In Harris v Australian Broadcasting Corporation, Beaumont J applied this factor to decline the release of an interim report containing adverse findings against public officials. In so doing, he plainly used the language of ‘misleading the public’ to justify his finding of where the balance of public interest rested:
[P]ublication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation.
Despite these sentiments, it is possible that this particular Howard factor need not be viewed solely through the prism of ‘misleading the public’. While this consideration is no longer relevant to determining where the balance of public interest lies, an argument can be made that this particular Howard factor goes to the very heart of the integrity and viability of the decision making process.
While the distinction is a fine one, it is possible that in relevant circumstances, the unfairness to public officials involved in releasing an interim report that contains matters that are yet to be responded to or that have subsequently proven to be false may preclude a document from being released on the basis that it would be contrary to the public interest to disclose it. Should such a scenario arise, this particular Howard factor would likely continue to be applied albeit without an emphasis on the resultant capacity for such documents to ‘mislead or deceive’ the public.
It would be grossly unfair, for example, if documents were released that criticised officers of an agency if, at the time of release of the documents, it is apparent that the criticisms levelled at the officers concerned were inaccurate or no longer maintained. Such documents would not be released on the basis that they were capable of ‘misinforming or misleading’ the public but rather that doing so has the potential to undermine the integrity of the decision making process itself.
In these circumstances, the temporal nature of the public interest test is clearly illustrated. While the release of documents critical of the behaviour of public officials will be justified in circumstances where those criticisms are substantiated and maintained, the release of interim documents in circumstances where they contain information that has subsequently proven to be false would not serve the public interest.
Illustrating this proposition, in Harris v Australian Broadcasting Corporation, Beaumont J found that public interest is not a static concept and that full disclosure of interim reports would, on balance, be contrary to the public interest. Similarly, in Kavvadias v Commonwealth Ombudsman, it was held to be contrary to the public interest to disclose a draft report of the Ombudsman which criticised officers of the Department of Social Security where that criticism was no longer maintained.
It is suggested that the same conclusions would have been reached in these cases under the new FOI legislation because no public interest could reasonably to be said to be served by publicising criticisms of officers when at the time a document is released it is known that the accusations against the officer are false or that criticisms made are ill-founded. In this respect, a factual defect in a document could justify applying the exemption whereas as a document which creates confusion stemming from the canvassing of possibilities would not.
Other circumstances where this exemption may continue to be applied include in relation to drafts of documents and documents which form part of a series of documents relevant to a particular matter.
The amendments implemented by the FOI Reform Act, including setting out pro-disclosure objectives of the Act more clearly and giving greater clarity to the public interest test by shifting the balance in favour of disclosure go a significant way towards addressing previously identified shortcomings in the Act.
Howard factors associated with the seniority of persons between whom communications pass and the potential for documents disclosed to mislead the public are no longer relevant considerations in determining where the balance of public interest lies when making a decision about whether a document should be released.
The Howard factor associated with inhibiting the frankness and candour of public officials appears to have been diminished as does the relevance of claiming an exemption for deliberative processes in respect of documents that are not a fair reflection of the reasons for a decision subsequently taken.
The Howard factor relating to the policy development functions of government remains relevant and will likely continue to be applied. To the extent that it is, the public’s ability to gain timely access to policy documents during the most critical phases of the policy development process will be diminished. Not achieving timely release of policy development documents undermines a key tenet of the freedom of information reforms being the link between access to government information and representative democracy.
[∗] BA, LLB (Hons), Senior Legal Officer, General Counsel Unit, Australian Taxation Office. The views expressed in this article are those of the author and not those of the Australian Taxation Office.
  AATA 100; (1985) 7 ALD 626.
 Australian Law Reform Commission, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 (1995); Administrative Review Council, Report No 40 (1995) 12.
 Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2009, 1.
 Division 3 of Part IV of the FOI Act contains the conditional exemptions.
 Division 2 of Part IV of the FOI Act refers.
 Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009, 17.
  FCA 188 (29 February 2008).
 Ibid .
 Ibid ; this point taken from a seminar paper delivered by John Carroll and Sally Sheppard at the Australian Taxation Office in Canberra on 15 September 2010.
 FOI Act s 34(1)(c).
 Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2009, 17.
 Ibid 18.
 Ibid 19.
 Ibid 20-21.
 Re JE Waterford and Department of Treasury (No 2)  AATA 67; (1985) 5 ALD 588, 606-607.
 Re Zacek and Australian Postal Corporation  AATA 473 (18 June 2002).
 (1984) 6 ALD 193, 197.
 Senate Standing Committee on Constitutional and Legal Affairs, Report on the Commonwealth Freedom of Information Bill 1978, 1979, [5.25].
  VicRp 6; (1991) 1 VR 63.
 (1987) 12 ALD 659.
 Murtagh v Federal Commissioner of Taxation  AATA 249; (1984) 6 ALD 112.
  AATA 100; (1985) 7 ALD 626.
 Re Howard and the Treasurer  AATA 100; (1985) 7 ALD 626, 634.
 Ibid 634-635.
 See further, subsection 11B(5) of the Freedom of Information Act 1982.
 Guidelines issued under section 93A of the Freedom of Information Act 1982, Part 6 – Conditional exemptions, [6.77] <http://www.oaic.gov.au/publications/guidelines/Guidelines-s93A-FOI-Act_Part6_Conditional-exemptions.pdf> .
 Tunchon v Commissioner of Police, New South Wales Police Service  NSWADT 73 (7 June 2000).
 Tender documents in the past have been notoriously difficult to access through the FOI process. See, eg, Secretary, Department of Employment, Workplace Relations & Small Business v Staff Development & Training Centre Pty Ltd  FCA 1375; (2001) 114 FCR 301.
 As to what these additional factors are, see paragraphs 6.23 to 6.29 of the Information Commissioner’s guidelines.
 (1986) 12 ALD 589.
 Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589, 603.
  AATA 161; (2008) 47 AAR 393.
 Moira Paterson, Freedom of Information and Privacy in Australia Government and Information Access in the Modern State (LexisNexis Butterworths, 2005) 296.
 Rick Snell, ‘The Ballard of Frank and Candour: Trying to Shake the Secrecy Blues from the Heart of Government’ (1995) 57 Freedom of Information Review 34.
 Roman Tomasic, ‘Administrative Law Reform: Who Benefits?’ (1987) 12 Legal Service Bulletin 262, 264.
 Moira Paterson, Submission No 19 to the Department of Prime Minister and Cabinet, Inquiry on Proposed Freedom of Information Reforms (2009), 6 <http://www.dpmc.gov.au/consultation/foi_reform/pdfs/PDFs19.pdf> .
 (1987) 13 ALD 1.
 Paterson, above n 35, 296.
  AATA 587; (2008) 48 AAR 153.
 Haneef v Department of Immigration and Citizenship  AATA 587; (2008) 48 AAR 153, .
  AATA 249; (1984) 6 ALD 112.
 Murtagh and Commissioner of Taxation  AATA 249; (1984) 6 ALD 112.
 Re Fewster and Department of Prime Minister and Cabinet (No 2) (1987) 13 ALD 139.
 Paterson, above n 35, 296.
  AATA 52 (17 January 1993).
 Ibid .
 Paterson, above n 35, 296.
 Subject to extensions for an additional 30 days when third party consultation is required or as agreed with the Information Commissioner.
 Merits review by the Information Commissioner is dealt with in Part VII of the FOI Act.
 Ibid 297.
 Harris v Australian Broadcasting Corporation  FCA 242; (1983) 5 ALD 545.
 See subsection 11B(4) of the Freedom of Information Act 1982.
 See the quotation from Murtagh v Federal Commissioner of Taxation  AATA 249; (1984) 6 ALD 112, above n 24.
  FCA 242; (1983) 5 ALD 545.
 Ibid 563.
  FCA 179; (1984) 54 ALR 285.
 Ibid 303.
 Paterson, above n 35, 297.
 Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475, 499.
 Re Waterford and Treasurer (No 2)  AATA 114; (1985) 8 ALN N37, N41.