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Briggs and the Department of the Treasury (No. 3) [2012] AICmr 22 (20 August 2012)

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Decision and reasons for decision of Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: Jamie Briggs MP
Respondent: Department of the Treasury
Decision date: 20 August 2012
Application number: MR11/00386
Catchwords:

Freedom of information — Request for access to documents — Cabinet documents —Whether documents submitted to the Cabinet for its consideration or proposed by a Minister to be so submitted — Whether documents brought into existence for the dominant purpose of submission for consideration by the Cabinet — Whether documents are drafts of documents to which ss 34(1)(a), (b) or (c) apply — Whether documents contain information the disclosure of which would reveal a Cabinet deliberation or decision that has not been officially disclosed — (CTH) Freedom of Information Act 1982s 34

Freedom of information — Request for access to documents — Whether documents contain deliberative matter — Whether disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth — Whether documents conditionally exempt from release — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982ss 11A(5), 47C, 47D

 Contents

 Summary

1. I vary the decision of the Department of the Treasury (the Treasury) of 3 August 2012 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act), in relation to one of those documents.

 Background

2. On 14 July 2011, Mr Jamie Briggs MP, the federal member for Mayo, applied to the Treasury for access to documents relating to all correspondence, between the Treasurer and specified members of Parliament, about the carbon tax since 21 August 2010.

3. On 21 October 2011, the Treasury advised Mr Briggs that all 14 documents identified within the scope of the request were exempt in full under s 34 (Cabinet documents) and s 47F (personal privacy) of the FOI Act.

4. By letter dated 25 October 2011, Mr Briggs sought IC review of this decision under s 54L of the FOI Act.

5. On 3 August 2012, the Treasury made a revised decision under s 55G of the FOI Act. The revised decision was to give Mr Briggs an edited copy of document 13, as numbered in the schedule of documents: a letter from the Prime Minister to the Treasurer. The Treasury advised Mr Briggs that document 13 was exempt from full disclosure because of the exemptions in s 34, s 47C (deliberative processes) and s 47D (financial or property interests of the Commonwealth or Norfolk Island).

 Decisions under review

6. The decision under review is the revised decision of the Treasury of 3 August 2012 to refuse Mr Briggs full access to the documents he requested.

7. In correspondence with the Office of the Australian Information Commissioner, Mr Briggs excluded document 14 from the scope of his application: the document that the Treasury decided was exempt under s 47F. Accordingly, there are 13 documents that are the subject of this IC review.

 Cabinet documents exemption (s 34)

8. Section 34 of the FOI Act provides:

34 Cabinet documents
General rules
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or

(b) it is an official record of the Cabinet; or

(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or

(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.

(2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.

(3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.

 Findings

9. I have examined the 13 documents. I find that, except for documents 5 and 13, each of them:

  • has been submitted to the Cabinet for its consideration, or was proposed by a Minister to be so submitted, and
  • was brought into existence for the dominant purpose of submission for consideration by the Cabinet

or is a draft of a document to which s 34(1)(a) applies. Accordingly, those 11 documents are exempt under s 34(1)(a) and (d) of the FOI Act.

10. I find that document 5 contains information the disclosure of which would reveal a Cabinet deliberation or decision that has not been officially disclosed. Accordingly, document 5 is exempt under s 34(3) of the FOI Act.

11. In relation to all of the documents (except document 13), it is not reasonably practical for the Treasury to provide Mr Briggs with edited copies under s 22, having regard to the extent of the modifications that would be required.

12. I find that the second paragraph of document 13 also contains information the disclosure of which would reveal a Cabinet deliberation or decision that has not been officially disclosed. Accordingly, document 13 is exempt under s 34(3) of the FOI Act, but an edited copy could be provided to Mr Briggs under s 22 with the second paragraph deleted.

 Financial or property interests of the Commonwealth or Norfolk Island exemption (s 47D)

13. The Treasury decided that the third paragraph of document 13 attracted the exemption in s 47D of the FOI Act. Section 47D provides that ‘[a] document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth, of Norfolk Island or of an agency’.

14. As the Treasury advised Mr Briggs in its reasons for decision, the third paragraph of document 13 contains details about ‘provisions made in the contingency reserve for a particular Budget measure’. The Treasury also states—and I can accept—that, ‘[w]hile it is publically known that the Government has allocated a capped amount in the Contingency Reserve to support delivery of the measure, details of the amount placed in reserve are not publically known pending the conclusion of negotiations with key stakeholders’.

15. I agree with the Treasury that the disclosure of this information at this time would have a substantial adverse effect on the financial interest of the Commonwealth.

 Findings

16. Document 13 is conditionally exempt under s 47D and, if exempt, an edited copy could be provided to Mr Briggs under s 22 with part of the third paragraph deleted.

 Deliberative processes exemption (s 47C)

17. The Treasury decided that the first and third paragraphs of document 13 attracted the exemption in s 47C of the FOI Act. Section 47C(1) provides:

47C Public interest conditional exemptions—deliberative processes
General rules
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or

(b) a Minister; or

(c) the Government of the Commonwealth; or

(d) the Government of Norfolk Island.

18. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. As the Guidelines explain:

… 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.[1]

19. In document 13, the Prime Minister:

  • acknowledges previous ministerial correspondence relating to the establishment of a contingency reserve
  • refers to some of the mechanics of the process by which it was decided to establish that reserve, and
  • makes a decision about the amount to be placed in reserve.

As noted in [14] above, the creation of the contingency reserve is publically known, [2] though the amount placed in reserve is not.

20. Document 13 is not a record of deliberative processes. It does not record the Government’s ‘thinking processes’. It records a decision.

 Findings

21. Document 13 is not conditionally exempt under s 47C.

 The public interest test (s 11A(5))

22. I have found that document 13 is conditionally exempt under s 47D of the FOI Act.[3] Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’.

23. Section 11B(3) of the FOI Act lists factors that favour access when applying the public interest test. Three of those factors are applicable to this IC review: promoting the objects of the FOI Act, informing debate on a matter of public importance, and promoting effective oversight of public expenditure. In particular, disclosure would promote accountability, transparency and public oversight in relation to the Australian Government’s policy on the carbon tax, and contribute to public debate on the issue.

24. The Guidelines include a non-exhaustive list of further factors that favour access. [4] None of those factors is applicable to this IC review.

25. The Guidelines also include a non-exhaustive list of factors against disclosure. [5] None of those factors is directly applicable. However, I think it is an important factor against disclosure that, as the Treasury put it in its reasons for decision, public disclosure of the information in question would harm the Commonwealth’s interests in relation to negotiations pertaining to the Budget measure.[6]

26. In balancing these factors—for and against disclosure—I give the greatest weight in this IC review to this factor. I am satisfied that the disclosure of details about provisions made in the contingency reserve would have a substantial adverse effect on the Commonwealth’s negotiations with key stakeholders, and that that disclosure would be contrary to the public interest.

 Findings

27. Giving Mr Briggs access to document 13 with the details of the amount placed in reserve included in the third paragraph would, on balance, be contrary to the public interest. However, an edited copy of the document could be provided to him.

 Decision

28. Under s 55K of the FOI Act, I vary the Treasury’s decision of 3 August 2012 by deciding that a copy of document 13 should be provided to Mr Briggs, edited under s 22 only as follows:

  • with the second paragraph deleted (s 34(3)), and
  • with the amount placed in the contingency reserve deleted from the third paragraph (s 47D).

 

James Popple
Freedom of Information Commissioner

20 August 2012

Review rights

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

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] Guidelines, [6.62], quoting Re Waterford and Department of the Treasury (No 2) [1984] AATA 67, [58]. See also British American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19, [15]–[23].

[3] See [16] above.

[4] Guidelines, [6.25].

[5] Guidelines, [6.29].

[6] The Treasury made this point in relation to its application of s 47C.