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[2021] SACAT 62
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-07-12
Original judgment source is linked above.
Patrick v Minister for Energy and Mining [2021] SACAT 62
The applicant sought an administrative review of a determination of the Minister for Energy and Mining regarding a freedom of information (FOI) application. The applicant raised a number of preliminary issues regarding recusal, the procedural steps undertaken to prepare the agency's determination and the agency's search for documents. This decision additionally considered the interpretation and application of exemption clauses 3 and 5 of Schedule 1 of the .
Administrative Review - Freedom of Information Act 1991 - Person aggrieved by a determination made following an internal review - whether a document is an exempt document
El Shafei v Central Adelaide Local Health Network [2017] SACAT 5
Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337
Shergold v Tanner [2000] FCA 1420
Re Jane Suzanne Arnold On Behalf of Australians of Animals v Queensland; the Australian National Parks and Wildlife Service [1987] FCA 148
Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180
Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321
Mr J Nguyen, Crown Solicitor's Office, for Minister for Energy and Mining
1. This application concerns a challenge by Senator Rex Patrick in relation to a decision of the Minister for Energy and Mining ("the Minister") under the Freedom of Information Act 1991 ("the FOI Act"). I conducted a hearing of the review proceedings on 17 May 2021 with Senator Patrick, Mr Verlato and Mr Nguyen, counsel for the Minister of Energy and Mining, in attendance. At the conclusion of those proceedings, I advised the parties of my orders. I set aside the decision of the Minister dated 12 November 2020 and substituted a decision that Document 2 was not an exempt document.
2. I said that I would provide written reasons for my decision and I now do so.
3. I also made various preliminary rulings and I provide my reasons for so doing.
4. The determination made by the agency identified four documents (Documents 1 to 4). A partial exemption was claimed over documents 1, 2 and 3, and document 4 was determined to be released. Agreement was subsequently reached as to the exempt status of documents 1 and 3. These proceedings therefore concern the status of Document 2. Document 2 is known to the applicant to be an undated letter from the Commonwealth Minister for Resources and the Northern Territory (then Minister Canavan) addressed to the Premier of South Australia. The letter was in the possession of the respondent because it was "cc'd" to him. A portion of the document (being approximately a third of the text of the one and half pages) was redacted by the respondent on the basis that the redacted content is exempt matter, and it is that claim of exemption that is under consideration in these proceedings. For convenience, the document will be referred to as Document 2 but is to be understood to refer to that portion of Document 2 over which exemption has been claimed.
5. After the determination was upheld by the agency on internal review, the applicant elected to seek a review from this Tribunal, rather than the more usual step of requesting an external review of the agency's decision by the Ombudsman. Such is his right under s 40(2)(a) of the FOI Act.
6. Senator Patrick drew to my attention, quite properly, to the fact that one of his contentions in these proceedings is that I should not follow or should overturn the decision of El Shafei v Central Adelaide Local Health Network ("El Shafei").[1] It was drawn to my attention that that decision, was argued by the Crown Solicitor's Office staff on behalf of the Central Adelaide Local Health Network at a time at which I occupied the role of Crown Solicitor. The observation was correct; the decision was delivered on the 13 April 2017 and I was appointed to the Supreme Court and to the office of President of SACAT on 4 July 2017.
7. The test for recusal is whether an ordinary person might apprehend that I might not be able to bring an impartial mind to the determination of the matter before me in light of my connection to the other proceedings.[2] As it was put to me, Senator Patrick proposed that he would be inviting me to decline to follow the reasoning in El Shafei and it perhaps might be thought that as I managed the office which represented the respondent in El Shafei, I might have a lesser inclination to depart from the decision. Having reflected on that issue I determined that it was not the case that a fair-minded observer might draw such a conclusion. As Mr Nguyen for the Crown pointed out, the issue in dispute is one of legal principle; whether the decision in El Shafei was legally correct. It is to be expected that a judicial officer will from time to time be required to make decisions about matters in relation to which they have made legal argument in the past. Such legal argument may well be for or against the proposition that, in making a decision as a judicial officer, they determine to be correct. In this case, the circumstances were removed from even that situation in that whilst I was the Acting Crown Solicitor or Crown Solicitor at the relevant time, I did not have any direct involvement by way of taking instructions or making submissions.
8. I observe further that the arrangements for decision-making within the Tribunal assume that I am able to bring an impartial mind to the determination of the correctness of a fellow Tribunal Member's decision-making. That is necessary when I constitute the Tribunal in order to decide a matter on internal review. In this particular case, if I were to make a decision or determination regarding the decision of El Shafei, I would be doing so in respect of a decision of Senior Member Stevens, who is a fellow Tribunal Member. Such is the everyday task of the President; decisions must be made which may or may not involve commenting upon, disagreeing with, approving, upholding or setting aside the decisions of other Tribunal Members.
9. Whilst it was quite proper of Senator Patrick to raise the issue and I note that he made no application that I be recused, I am satisfied that the test for recusal is not met.
Ruling regarding the procedural steps in the FOI decision-making process
10. The second preliminary issue I was asked to consider is whether the scope of the applicant's review could properly entail a determination of the validity of the various decisions made by the Freedom of Information Officer ("FOI Officer") leading to the determination, with a view to setting aside the determination as invalid and starting afresh to consider the application de novo.
11. Senator Patrick submitted that I should consider that when a determination is challenged and the Tribunal's jurisdiction is enlivened, that jurisdiction reaches out to encompass consideration of each of the steps made in the decision-making process and that an examination of the steps in this case establish that the process was infected by error. The error asserted to have been committed by the FOI Officer was to be involved at both the original decision-making stage and the internal review stage. By reason of this erroneous process, it was submitted that the determination signed by the Minister was null and void and should be set aside.
12. The respondent did not dispute that the FOI Officer had been involved at two stages of the process. As the accredited FOI Officer, he had gathered relevant documents and commenced a consultation process in relation to those documents that he found to be within the scope of the application. That process was not completed prior to the 30 days within which the FOI Officer was required to issue a determination. That had the effect of creating a deemed determination on behalf of the agency to refuse access to documents.[3] The applicant sought an internal review of the deemed refusal. The FOI Officer continued to be involved in this phase of the decision-making process. He drafted the Minister's determination on internal review. The determination was couched in terms of the Minister's opinion and decision. The Minister's signature appears on the internal review determination.
13. Senator Patrick submitted that this was poor process. The same person had been involved in a review of his own decision. Therefore, the determination made by the Minister was flawed. It was submitted that the Tribunal should find the decision to be a nullity and to set it aside.
14. I accept Senator Patrick's proposition that it is inappropriate for a decision-maker to hear and determine an appeal or review of a decision that they made at first instance. Such cases must of course be distinguished from cases at which a decision-maker is compelled to remake a decision upon a remittal.
15. I am not satisfied in this case that the circumstances amounted to a making of the decision on two occasions, at first instance and on review. The FOI Officer did not make a decision at first instance. The decision was made for him by the legislative intervention of a deemed refusal. We do not know what the FOI Officer would have decided if he had made a decision at first instance. The FOI Officer then assisted the Minister to make a decision on internal review. There is nothing unusual about that. However, it was the Minister's decision and is expressed as such. Therefore, this is not a case of two decisions being made by the one person. The two decisions were of a quite different type from one another. The first was a deemed refusal, and the second was a decision of the Minister. The FOI Officer appears to have been involved in both but made neither.
16. If I am wrong about that and the FOI Officer's involvement in both of these processes affected the validity of one or the other or both, it is nevertheless beyond the jurisdiction of the Tribunal to make the sort of order that is being requested by Senator Patrick, namely a declaration regarding the process. The jurisdiction of the Tribunal in the determination of a review under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act") in connection with s 40 of the FOI Act is as set out in s 37 of the SACAT Act. On a review I may affirm, vary or set aside the decision being reviewed. If I were to set it aside, I could substitute my own decision or remit the decision for a further consideration by the original decision-maker. The Tribunal has no inherent jurisdiction. Senator Patrick submitted that once my jurisdiction was enlivened, I was entitled to exercise supervision over the process. However, I am constrained by the orders that the Act confers upon me because, as Mr Nguyen rightly submitted, the Tribunal can do nothing more than that which is permitted under the statute.
17. However, the nature of the review process under s 34 makes it clear that a decision-maker on review is obliged to have regard to and give appropriate weight to the decision of the original decision-maker. That provision permits me to afford as little or as much weight as I see fit to the decision under review, being the decision on internal review made by the Minister. Another way of viewing Senator Patrick's submission, is to treat it as an invitation to afford very little weight to the Minister's decision on the basis that it was made by a person who had improperly involved himself with the initial determination and then was involved in the internal review decision. I reject that assessment because, as indicated earlier, it has not been established that the Minister did not make the internal review decision. His name and signature appear at its conclusion, and it is couched in language that established that, on its face, he is responsible for its content.
18. For the above reasons, I declined to make a preliminary ruling that declared the determination was null and void and was required to be set aside.
Documents found by the agency to not be within the scope of the request
19. The third preliminary issue was whether the Tribunal and the applicant ought to be given access to documents or parts of documents that have been redacted on the basis that they were "out of scope". There were two elements to this request for a ruling by the applicant. The first was whether information concerning 17 documents that were originally considered to be within scope but then were subsequently, and before the deemed refusal, considered to be out of scope should be before the Tribunal. The second element of this related to one of the four documents about which the determination was made.
20. A related issue was considered in El Shafei v Central Adelaide Local Health Network.[4] In that case, the Tribunal had to consider whether it was within the Ombudsman's and the Tribunal's jurisdiction to consider the sufficiency of a search for documents performed by the agency. Senior Member Stevens considered the provisions of the FOI Act that bear upon the scope of the right of review and found that it is not within the Tribunal's jurisdiction to consider the sufficiency of an agency's search:[5]
The objects of the FOI Act are set out in section 3. The aim (in general terms) is to promote openness in government and accountability. The Act is to be interpreted so as to further such objectives (section 3A). I approach the interpretation of the Act on that basis. I observe that the objects of the Act might be defeated if there was no means of ensuring that agencies search with reasonable diligence for documents concerning which access has been requested.
However, the FOI Act does not deal expressly with the issue at hand. Parliament must be taken to have recognised that an application might well require a search for documents (see, for example, sections 14A, 17 and 18). It goes without saying that potentially some documents may not be found even if there is a suspicion that they exist. There are no provisions in the Act, however, which expressly deal with sufficiency of search.
The Act does refer in a very precise manner to the concept of a "determination". It is only a "determination" which can be the subject of an application for internal review or review by the Ombudsman or this Tribunal.
Section 19 sets out what must be determined when an application is made. The primary choice is whether access will be granted or refused to a document. The agency must also determine the amount of any charge payable.
Section 23 refers to the notice to be given to an applicant when an application has been determined. Sub-section (1) (a) requires notice to be given of the agency's "determination". Alternatively, sub-section (1) (b) requires that notice be given "of the fact that the agency does not hold such a document". There is a clear implication that the alternative notice under paragraph (b) is not notice of a "determination".
The use of the word "fact" in paragraph (b) is also instructive. If it was intended that an applicant could review a claim by the agency that it did not hold a document, one would expect that paragraph (b) might refer to a "claim" or a "decision" or even more relevantly a "determination", rather than a "fact". One can review a decision as to fact, but one cannot review a fact.
Initially, I thought that subsection (2) of section 23 tended to muddy what otherwise might be clear waters. This was because it seemed to assume that every notice would contain a determination even though there may be no documents held. However, section 19 (1) makes it clear that there must always be a determination as to any charge payable (even if no document is found). Hence sub-section (2) requires notice of that determination.
The Act also provides expressly that certain other decisions are "determinations" for the purposes of the Act. For example, section 14A (5) provides that a decision to extend the time for handling an application "is a determination for the purposes of this Act". Section 18 (8) provides that a "refusal to deal with, or to continue to deal with an application under this section is a determination for the purposes of this Act". Section 19 (2) provides for a deemed determination where an application is not dealt with on time. Conversely it would seem that a decision to transfer an application to another agency under section 16 is not a "determination".
Hence the legislature has been at pains to identify what decisions are "determinations" which are subject to review. The Act does not state that a claim that an agency does not hold a document is a "determination". Given the scheme of the Act, the absence of a statement to that effect is telling.
In some other jurisdictions it has been suggested that a claim by an agency that it does not hold a document may be tantamount to a refusal of access and therefore a reviewable decision. This argument is unattractive as one cannot refuse to give access to a document that one does not have and which may not even exist. In any event section 20 of the FOI Act sets out expressly what can be the basis for a refusal.
For these reasons I am of the view that a claim by an agency that it does not hold a document is not a determination which is reviewable under the FOI Act. ...
(footnote omitted)
21. Senator Patrick argued that the Tribunal erred in El Shafei when it found that its review jurisdiction was confined to the determination of the agency. Senator Patrick's arguments on this point rehearsed to a large extent his arguments about the Tribunal's jurisdiction as outlined in paragraph 11 of this decision. He stated that since he is a person aggrieved by the agency's internal review decision, the Tribunal's review jurisdiction is enlivened under s 40(2)(a) of the FOI Act and its jurisdiction extends to a review of all of the steps undertaken by the agency to reach its decision. This necessarily includes the agency's evaluation of which of its documents fall within the scope of the request.
22. Senator Patrick sought for the Tribunal to order that the agency produce the 17 documents that were initially considered to be within the scope of the FOI application so that the Tribunal may determine whether the agency correctly identified that the documents did not fall within the scope of the request.
23. Although I agree with Senator Patrick that the Tribunal's review jurisdiction is enlivened in this matter by the operation of s 40(2)(a), I do not accept that its jurisdiction extends to a review of every step taken by the agency. The words of s 40(2)(a) make it clear that the subject of the Tribunal's review is the "determination" of the agency. Although the word "determination" is not defined in the FOI Act, I concur with the statements of Senior Member Stevens in El Shafei that the provisions of the Act specifically prescribe what may be the subject of a determination. In respect of an application for access to documents, this may be that the agency:
24. Section 23 of the FOI Act also outlines the types of information that must be described in a determination. The type of information is different depending on whether access to documents or parts of documents is given or refused, or if access is given but is subject to deferral. However, this section does not require the agency to describe any information regarding the search for documents that was conducted. In fact, as outlined by Senior Member Stevens in El Shafei, s 23(1) distinguishes between notifying an applicant of the agency's determination and notifying the applicant of the fact that the agency does not hold the documents to which the application relates.
25. The agency's search for documents that fall within the scope of the FOI application is not governed by any specific requirements under the FOI Act. It is a step in the process of the agency dealing with an application for access to documents. Section 13(d) of the FOI Act states that a freedom of information application "must contain such information as is reasonably necessary to enable the document to be identified". An onus is thereby placed on an applicant to provide sufficient information in his or her application for the agency to clearly identify the documents being sought. However, no provision under the FOI Act prescribes how the agency is to undertake the process of identifying the documents sought. It is clear that some discretion is afforded to the agency when it performs a search for documents in terms of the method employed for performing the search as well as its consideration of whether a document falls within the scope of the application. The exercise of this discretion is guided by the objects of the Act and s 3A(1)(b) which indicates that administrative discretions should be exercised by the agency, as far as possible, in a way that favours disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals. However, the exercise of this administrative discretion is not described as a "determination" of the agency under the FOI Act.
26. I agree with the respondent's submissions that no error has been disclosed in the reasoning of El Shafei. The Tribunal does not have the jurisdiction to review documents that an agency has identified as not falling within the scope of the FOI application or to review the agency's actions in that regard.
27. The second element of this preliminary issue concerned the document labelled by the agency as "Document 1". A redaction had been applied to Document 1 as the agency found that the redacted portion was not within the scope of the FOI application. At the hearing, Senator Patrick indicated that he no longer sought access to this redacted portion of Document 1. Accordingly, there was no need for the Tribunal to further consider this issue.
The substantive dispute: the application of exemption clauses 3 and 5 to Document 2
28. The remainder of these reasons address the question of whether the agency had a proper basis for determining that Document 2 is an exempt document. The Tribunal finds that the document is not an exempt document on either of the two grounds relied upon by the agency, namely the operation of cl 3 and cl 5 of Schedule 1 of the FOI Act.
3 - Exempt documents communicated by another government
A document is an exempt document if -
(a) it contains information from an intergovernmental communication to the Government of South Australia or a council; and
(b) notice has been received from the relevant Government or council that the information would be protected from disclosure under a corresponding law of the Commonwealth or another State.
5 - Documents affecting inter-governmental or local governmental relations
(1) A document is an exempt document if it contains matter-
(a) The disclosure of which -
(i) could reasonably be expected to cause damage to intergovernmental relations; or
(ii) would divulge information from a confidential intergovernmental communication; and
(b) The disclosure of which would, on balance, be contrary to the public interest.
31. On their face, cl 3 and cl 5 cover overlapping subject-matter namely relations between the governments in the state and within the federation of states and with the Commonwealth Government.
32. Part 3 Division 2 of the FOI Act contains provisions that outline requirements for consultation by an agency in relation to specific types of documents that are the subject of an FOI application. These types of documents are:
25 - Documents affecting inter-governmental or local governmental relations
(1) This section applies to a document that contains matter concerning the affairs of -
(a) the Government of the Commonwealth or of another State; or
(b) a council (including a council constituted under a law of another State).
(2) An agency must not give access under this Act to a document to which this section applies unless the agency has taken such steps as are reasonably practicable to obtain the views of the Government or council concerned as to whether or not the document is an exempt document by virtue of clause 5 of schedule 1.
(2a) ...(not applicable)....
(3) If -
(a) an agency determines, after having sought the views of the Government or council concerned, that access to a document to which this section applies is to be given; and
(b) the views of the Government or council concerned are that the document is an exempt document by virtue of clause 5 of schedule 1,
the agency must -
(c) forthwith give written notice to the Government or council concerned -
(i) that the agency has determined that access to the document is to be given; and
(ii) of the rights of review conferred by this Act in relation to the determination; and
(iii) of the procedures to be followed for the purpose of exercising those rights; and
(d) defer giving access to the document until after the expiration of the period within which an application for review under this Act may be made or, if such an application is made, until after the application has been finally disposed of.
34. Notably, the agency is only required to consult in relation to the possible engagement of cl 5, and not of cl 3.
35. As indicated earlier, Document 2 is a letter from the Commonwealth Minister for Resources and the Northern Territory to the Premier of South Australia. Whilst undated, the agency submitted that it was sent via email on 23 April 2018. It is on Ministerial letterhead. There is no stamp or other signal in the text of the letter that the content is confidential. It contains no descriptor of its security classification. The letter contains information about community consultation and site assessment activities undertaken by the Commonwealth government in relation to land at Wallerberdina Station being assessed for the establishment of a radioactive waste management facility.
36. The agency claimed that cl 3 of Schedule 1 of the FOI Act applies to a portion of the content of Document 2.
37. The parties agreed that limb (a) of cl 3 is satisfied as the letter constitutes an intergovernmental communication from the Commonwealth Government to the Government of South Australia.
38. Mr Nguyen, for the agency, submitted that limb (b) of cl 3 was also satisfied.
40. The operation of the cl 3 is enlivened when the agency receives notice from the relevant Government or council identifying that the information is protected from disclosure under a corresponding law of the Commonwealth or another State. The term "corresponding law" is not defined in the FOI Act. However, it is widely used in legislation to refer to an identical law or provision in another jurisdiction's legislation, or one of equivalent effect.
41. The corresponding law was said to be s 47 of the Freedom of Information Act 1982 (Cth) ("Commonwealth FOI Act") which provides:
47B Public interest conditional exemptions - Commonwealth-State relations etc.
A document is conditionally exempt if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or
(d) would divulge information or matter communicated in confidence by or on behalf of an authority of Norfolk Island, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or an authority of the Commonwealth; or
(f) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to an authority of Norfolk Island or to a person receiving the communication on behalf of an authority of Norfolk Island.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
42. Though not in identical terms, it is evident that s 47B of the Commonwealth FOI Act is equivalent to and intended to mirror cl 5 of the South Australian FOI Act.[6] I am satisfied that s 47B of the Commonwealth FOI Act is a "corresponding law" of cl 5 for the purposes of cl 3 of Schedule 1 of the FOI Act.
43. In order to engage cl 3, the agency must have received "notice" from the Commonwealth that the information in the document is protected from disclosure under a corresponding law.
44. Mr Nguyen argued that the correspondence received by Mr Hickman, of the Minister's office, from Ms Barron, of the Commonwealth Minister's office, constituted notice for the purposes of cl 3(b), even though there was no reference to cl 3 by either of them or evidence that either was aware of it at the time.
45. An affidavit of Mr Hickman declared on 10 December 2020 states that the agency undertook a process of consultation with Ms Barron, the Chief of Staff of the Office of the Honourable Keith Pitt, Minister for Resources, Water and Northern Territory.[7] The Hon Keith Pitt succeeded Senator Canavan to the Ministerial office responsible for the subject matter of the letter. The agency's argument was that Mr Hickman's affidavit shows that the agency had a basis for Document 2 is exempt. That basis was expressed by the Commonwealth Minister's Chief of Staff, Ms Barron, who wrote to Mr Hickman in response to the consultation. "DISER" is the acronym for the Commonwealth Department of Industry, Science, Energy and Resources. Ms Barron advised the agency that DISER is of the view that cl 3 applied to the document. She stated that DISER's view was that the document is protected from disclosure under s 47B of the Commonwealth FOI Act.[8]
It is DISER's view that that the documents identified would be a disclosure of information sharing processes between the Commonwealth and the SA government, the disclosure of which could reasonably be expected to damage the relationship between them. In addition, the information was communicated to the SA Government for the purposes of a Commonwealth and State working relationship. To divulge this information could damage the relationship between the Commonwealth and SA Government, and would be likely to inhibit future supply of information between them. [9]
47. Mr Nguyen submitted that Ms Barron's email constituted "notice" and that once such a notice was received, the information in the document to which the notice relates is exempt from release irrespective of whether the agency or the Tribunal is satisfied that the factual claims contained in the notice are correct or not. In other words, the agency should not and cannot go behind the assertions in the notice.
48. Senator Patrick argued that the Tribunal should be cautious to accept that the view expressed by a staff member of a Minister's office in an email constituted notice for the purpose of cl 3(b) on behalf of the Commonwealth government. He submitted that neither DISER nor the agency had demonstrated that damage could be expected to be caused to the relationship between the Commonwealth and State governments if the information were to be disclosed. He submitted that specific harms to the relationship were required to be identified by the agency and neither the Minister in his determination nor Ms Barron identified what these harms might be.
49. Clause 3 is only operational if the communications by Ms Barron constituted "notice" for the purposes of cl 3. The term "notice" is used frequently throughout the FOI Act to describe the communication of a decision or intention or view, and what is common to each of the instances is that the giving of notice is intended to, or acknowledges that there will be, consequences of the decision, expression of intention, or view.[10] It is a formal communication. Ms Barron's communication was not signalled in any way to be a notice, though that may not be determinative. More telling, however, is that her communications purport to convey the position of a Government Department of which it was submitted, without opposition, that she was not an employee. Ms Barron was at the relevant time chief of staff to the Minister with responsibility for the consulted agency. The clause is engaged where "the Government" expresses a view. Neither the communications at the time nor the affidavit of the agency assert any facts to establish the proposition that Ms Barron spoke on behalf of the Government, or even the Minister by whom she was employed, in a way that is consistent with the Westminster system of responsible Government.
50. The use of the mechanism of "notice" must be understood as less formal and determinative than the mechanism of a conclusive certificate as is provided for under the Commonwealth Act.[11] Its use should also be understood to be less formal than where, as in other provisions of the FOI Act, the notice is required to be in writing. It should also be acknowledged that the requirement is for "notice" and not "a notice". If the requirement were for "a notice" it would arguably signal with greater force the requirement that the party giving the notice be aware that their communication is intended to be, and to be understood as, a notice under the Act.
51. However, when considering the use that the term is given in the FOI Act and in particular its connection with communications having or seeking a particular consequence, "notice" in cl 3 should be understood to require some appreciation of the consequences of such 'notice'. It is not evident that Ms Barron purported to be speaking, with the necessary degree of appreciation of the implications, on behalf of the Commonwealth Government, or any part of it, with the intended effect, as the respondent would have it, that the view expressed would have consequences that had conclusive effect as representing the view of 'the Government'. This is discussed further below when the meaning of "damage to intergovernmental relations" is considered in more detail for the purposes of cl 5.
52. In light of the above, I do not consider that it has been established that the communications between Ms Barron and Mr Hickman constituted "notice" for the purpose of cl 3.
53. Accordingly, the question of whether the notice has the effect of requiring the agency to determine that the document is exempt without further consideration of the content of the notice, or whether the agency is required to make an assessment of whether it agrees with the content of the notice, does not require the Tribunal's decision.
54. The agency also relied upon cl 5, set out earlier in this decision, for the exempt status of the letter. Clause 5 of Schedule 1 of the FOI Act provides:
5 - Documents affecting inter-governmental or local governmental relations
(1) A document is an exempt document if it contains matter -
(a) the disclosure of which -
(i) could reasonably be expected to cause damage to intergovernmental relations; or
(ii) would divulge information from a confidential intergovernmental communication; and
(b) the disclosure of which would, on balance, be contrary to the public interest.
55. By virtue of s 25 of the FOI Act, the agency was required to consult with the Commonwealth regarding the status of the letter under cl 5. Through the agency's consultation with Ms Barron, the agency was notified of DISER's view that cl 5 applied. According to Ms Barron, it was DISER's position that Document 2:
contains confidential information provided by the Commonwealth, which if released could reasonably be expected to cause damage to relations between the Commonwealth and the SA government, particularly information sharing between jurisdictions.
In assessing the public interest, DISER have considered the need for transparency of government decision making; and enabling the public participation in this process. However, DISER are of the view that in considering the public interest in ensuring confidential information provided by the Commonwealth, remains confidential, and on that balance, it would be contrary to the public interest for the [document] to be released.[12]
56. The above constitutes the whole of the basis upon which the agency submitted that it was sufficient or necessary for it to conclude that
57. Although a document need only be either one the disclosure of which would damage intergovernmental relations or one that would divulge confidential information, Ms Barron asserted that both applied.
58. In relation to cl 5, no argument arises that the view that was conveyed and attributed to the Commonwealth amounts to conclusive evidence that the clause is established. It was not disputed that, in relation to the operation of cl 5, it is a matter for the agency to decide, having consulted as required, whether the document is in fact an exempt document. However, where the agency has determined to give access to a document despite the relevant Government or council expressing the view that cl 5 applies, the agency is required to give the Government or council written notice of the determination, provide information on their rights to review the determination, outline the procedures to be followed if those rights were to be exercised, and defer giving access to the document until after the expiration of the review period or until any review that is pursued is disposed of.[13]
59. Although it is not necessary to decide, this suggests that the process of giving notice under cl 3 creates a binding obligation on the agency to find the document exempt, as (in contrast to the rights described above in relation to cl 5) no special rights of review attach to a determination made in respect of cl 3. It would be incongruous for there to be no such rights in respect of a determination made under cl 5. This further suggests that the "notice" required for cl 3 is binding and of such significance that notice should not be inferred to have been given where there is no indication that the provider of the communication intends it to be a notice or is aware of the consequences.
60. Clause 5(a)(i) requires evidence that damage to intergovernmental relations could be reasonably expected from the disclosure of the information. As to what is comprised by "intergovernmental relations", and when those relations "could reasonably be expected" to be damaged, Woodwood J in Re Jane Suzanne Arnold On Behalf of Australians of Animals v Queensland; the Australian National Parks and Wildlife Service[14] said:[15]
... the words "relations between the Commonwealth and a State" refer to the total relationship between the Commonwealth and the relevant State. As is essential in a federation, there exists a close working relationship, over a wide spectrum of matters and at a multitude of levels, between representatives of the Commonwealth and representatives of each State. The word "relations" includes all of those contacts. It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to "relations" between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect "relations" between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case.
Thirdly, the words "could reasonably be expected" do not require the demonstration of a probability of damage. In Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 a Full Court considered the meaning of the words "could reasonably be expected to prejudice the future supply of information" as appearing in s.43(1)(c)(ii) of the Act. At p.106 Bowen CJ and Beaumont J said that those words "require a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document were disclosed under the Act". See also the test of "real and substantial grounds" proposed by Sheppard J at p.112.
61. The phrase "could reasonably be expected" requires the Tribunal to consider whether damage to intergovernmental relations is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the information were disclosed.[16] In performing such an assessment, it is undesirable to consider the anticipated damage in terms of probabilities or possibilities or the like.[17] It is preferable to not apply any such unwarranted glossing upon the phrase and to confine the inquiry to whether the expectation claimed was reasonably based.[18]
62. It was submitted that the subject matter of the information in Document 2 is of a highly sensitive nature as it relates to the establishment of the radioactive waste management facility and the relationship between the Commonwealth government and local Indigenous Australian groups about that proposal. Further, it was submitted that the document contains communications between persons of a high level of seniority in government, being between a Commonwealth Minister and the Premier of South Australia, which further indicated the sensitivity of the information contained within the document.
63. The agency argued that these factors support a finding that the intergovernmental communication is confidential, and that damage would be caused to intergovernmental relations if the information were to be released, and that the public interest militates in favour of preventing this harm to intergovernmental relations at the expense of disclosure of the information.
64. The damage identified in Ms Barron's email is that information-sharing processes would be revealed from the disclosure of the information which would inhibit the likely future supply of such information. I do not accept that it has been established that damage to intergovernmental relations could reasonably be expected to arise on this basis. Document 2 is correspondence from the Commonwealth Government to the South Australian Government which discusses the steps taken by the Commonwealth to investigate a proposed location for a radioactive waste management facility. It has not been suggested that the information would compromise safety or security. It does not contain information from a unique or sensitive form of information-sharing between the Commonwealth and State governments, such as that which might be directed, for example, at law enforcement. The agency has not demonstrated that cl 5(1)(a)(i) is established.
65. Another basis on which the agency argued that damage could be caused to intergovernmental relations is that the information was communicated to the State Government in confidence. The only evidence provided to the Tribunal of the confidentiality of the communication is that of Ms Barron's email which describes the information as being confidential.
66. For information to be considered to be a confidential communication under cl 5(a)(ii), it must be clear or able to be inferred from the circumstances in which the information was communicated that the information was communicated in confidence. The context in which the communication occurred, the relationship of the persons between whom the information was communicated, and the sensitivity of the information are some relevant considerations to the assessment of whether the communication was received with an express or inferred understanding that the communication would be kept confidential.[19]
67. On its face, Document 2 has no identifiers to indicate that the information is, or was intended to be, confidential. The content of the document does not describe the information contained within it as being sensitive and it does not indicate that the information should not be provided to other persons besides the recipient. I do not accept the agency's submissions that the information is inherently sensitive because it concerns the establishment of a radioactive waste management facility and is a communication between members of Government in high positions of seniority. There was no evidence provided by the agency as to why the establishment of the radioactive waste management facility is of itself a subject of communication that is inherently confidential. Although communications between persons that assume high positions of office may be an indicator of the sensitivity of the communications, without any further evidence regarding the context in which communications were made and the reasons for the communications, this factor alone is insufficient to establish that communications were undertaken on a confidential basis. I am not satisfied that the agency has established that Document 2 was provided on a confidential basis. The criterion in cl 5(1)(a)(ii) is not made out.
68. Having reached these conclusions in respect of cl 5(a), it is not necessary to consider whether disclosure of the redacted portions of Document 2 would be contrary to the public interest. I observe however that the portion of the communication by Ms Barron to Mr Hickman addressing this issue is insufficient to enable the Tribunal to form a view on that issue. By the very inclusion of a public interest test, the legislation contemplates that there will be circumstances in which the disclosure of a confidential intergovernmental communication, or an intergovernmental communication the disclosure of which would damage intergovernmental relations, would not be contrary to the public interest. An agency seeking to establish that the public interest requires that the document be declared exempt must establish more than the breach of confidentiality or the likelihood of some damage to relations in order to support an assertion that cl 5 applies.
69. On the evidence before me and for the reasons that I have outlined in this decision, I am not satisfied that the redacted parts of Document 2 are exempt by virtue of either cl 3 or cl 5.
[1] [2017] SACAT 5 (13 April 2017).
[2] Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337.
[3] Freedom of Information 1991 (SA) s 19(2).
[6] The Commonwealth provision commenced in 1982 and the State Act equivalent commenced in 1991, and thus it may be said that the State provision is the mirror of the Commonwealth provision but this makes no practical difference.
[7] Affidavit of Grant Hickman filed 10 December 2020 at [5].
[10] See, for example, ss 14A(3), 17(4), 18(5), 23, 25(3)(c) etc.
[11] See, Shergold v Tanner [2000] FCA 1420.
[12] Respondent's Outline of Argument dated 26 February 2021 at [32] referring to the Affidavit of Grant Hickman filed 10 December 2020 at exhibit GSCH-2.
[13] Freedom of Information Act 1991 (SA) s 25(3)(b) & (c).
[16] Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [29] (Bowen CJ and Beaumont J) referring to Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 (Gibbs CJ and Mason J).
[19] Re Maher v Attorney-General's Department [1985] AATA 180 at [18]- [21]; Re Queensland and Australian National Parks and Wildlife Service (Australians for Animals, party joined) [1986] AATA 224 at [19]- [20].
Patrick
Minister for Energy and Mining [2021] SACAT 62
(2000) 201 CLR 488
(1986) 10 FCR 180
(1985) 62 ALR 321
(2000) 205 CLR 337
(1986) 64 ALR 97