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Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31 (22 November 2012)

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Decision and reasons for decision of
Information Commissioner, Professor John McMillan

Summary of case details
Applicant:

Sean Parnell

Respondent: Department of the Prime Minister and Cabinet
Decision date: 22 November 2012
Application number: MR11/00439
Catchwords:

Freedom of information – Public interest conditional exemption – Personal privacy – Whether documents contain personal information – Whether disclosure of the information would be unreasonable – (CTH) Freedom of Information Act 1982s 47F

 

Freedom of information – Whether letter to Prime Minister from a former Prime Minister is an official document of a Minister – (CTH) Freedom of Information Act 1982s 4(1)

  Contents

 Summary

  1. I set aside the decision of the Department of the Prime Minister and Cabinet (the Department) of 22 December 2011 and substitute my decision, under s 11A(3) of the Freedom of Information Act 1982 (the FOI Act), to give the applicant access to two documents, with redactions to one document.

 Background

  1. The applicant is a journalist with The Australian. On 2 June 2011 he made a request to the Department for access to ‘all correspondence between Julia Gillard and former Prime Ministers since she was elected, by Caucus, as Labor leader'. The following month, he revised his request to exclude from its scope correspondence between the Prime Minister and her immediate predecessor, the Hon Kevin Rudd MP.
  2. The Department identified two documents as falling within the scope of the request. Both were letters sent to the Prime Minister, one in July 2010 (the 2010 letter) and the other in April 2011 (the 2011 letter). Both letters were sent by the same former Prime Minister. The 2010 letter sought the Australian Government's support for a particular cause, and was signed by the former Prime Minister and by other persons who are prominent in Australian public life. The 2011 letter was signed by the former Prime Minister alone and expressed a view about the approach the Australian Government should take on a different issue.
  3. The Department sought the former Prime Minister's comments on the possible release of the two letters. The former Prime Minister responded in July 2011, advising that he opposed release of both letters.
  4. In a decision dated 6 December 2011, the Department refused the applicant's FOI request. It decided that the disclosure of the letters would involve the unreasonable disclosure of personal information, making them conditionally exempt under s 47F of the FOI Act, and that access to the document would be contrary to the public interest under s 11A(5) of the FOI Act.
  5. The applicant sought internal review of that decision. The internal review decision, dated 22 December 2011, affirmed the primary decision, finding that the documents were conditionally exempt under s 47F and that release would be contrary to the public interest.
  6. The applicant had lodged a complaint about the Department's delay in handling his request in October 2011. In December 2011, at the applicant's request, the complaint was changed to an application for Information Commissioner review (IC review) of the decision to refuse access to the letters.

 Should the former Prime Minister be named in this decision?

  1. For reasons which I will explain, I have decided that the documents are not conditionally exempt under s 47F. It is open to the Department and to the former Prime Minister to appeal against my decision to the Administrative Appeals Tribunal. Unless this decision is successfully appealed, the documents must be released to the applicant by the Department.
  2. Bearing in mind that my decision may be appealed, I have referred throughout these reasons to the former Prime Minister by that designation rather than by name. To identify the former Prime Minister by name could pre-empt effective reliance in later appeal proceedings on the claimed personal information exemption.

 Decision under review

  1. The decision under review is the internal review decision of the Department of 22 December 2011 to refuse access to the 2010 letter and the 2011 letter.

 Steps taken in the IC review process

  1. In relation to the 2010 letter, the OAIC asked the applicant whether he sought access to the names and signatures of the signatories other than the former Prime Minister. In June 2012, the applicant advised that he did not seek access to these names and signatures.
  2. The OAIC received submissions from the applicant as to why he should be granted access to the documents. The OAIC also wrote to the former Prime Minister as an affected third party, inviting submissions as required by s 55A(1)(c) of the FOI Act. In his reply, and in correspondence with the Department, the former Prime Minister maintained his objection to the disclosure of the letters.

 Application of the FOI Act to correspondence addressed to a Minister

  1. The right of access to documents under the FOI Act extends to ‘an official document of a Minister' (s 11(1)(b)). The term is defined as ‘a document that is in the possession of a Minister ... in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State' (s 4(1)).
  2. Some of the submissions received in this case suggested that, as a matter of general principle, correspondence sent between a former and a current Prime Minister should not be released in response to an FOI request. However, the right of access conferred by the FOI Act applies to correspondence sent to a Minister if it relates to the affairs of an agency or a Department of State (s 4). This applies not only to correspondence from within government, but also from outside it.
  3. As I stated in a case involving the same applicant, Parnell and Prime Minister of Australia [2011] AICmr 10 (21 December 2011), not all correspondence received by a Minister will relate to the affairs of an agency or a Department of State. In that case, I decided that a letter sent to the Prime Minister by an organisation established to support the Australian Labor Party was sent to her as party leader, not in her capacity as Prime Minister, and did not relate to the affairs of an agency or Department of State.
  4. In contrast, the letters in this case are clearly addressed to the Prime Minister in her ministerial capacity as the head of the Australian Government. The letters urge the Australian Government to make certain decisions concerning matters within the responsibilities of Commonwealth Ministers and Departments of State. The documents fall within the definition of ‘official documents of a Minister' to which the right of access under the FOI Act applies.

 Personal privacy exemption (s 47F)

  1. This case turns on whether the two letters are conditionally exempt under s 47F, and if so, whether granting the applicant access to the letters is contrary to the public interest under s 11(5).
  2. A document is conditionally exempt under s 47F if its disclosure under the FOI Act would involve the unreasonable disclosure of personal information about any person. That raises two issues: do the letters contain personal information; and would disclosure of that information be unreasonable?

 Do the letters contain personal information?

  1. The underlying premise of the Department's primary and internal review decisions was that both letters contained personal information. The primary decision does not explain the reasons for this finding. The internal review decision stated only:

    Each document contains the personal views of a former Prime Minister conveyed to the current Prime Minister. The issues raised in these documents are matters of specific importance to the former Prime Minister.

  2. Both letters contain the former Prime Minister's name and contact details. These clearly fall within the definition of ‘personal information' as defined in s 4(1) of the FOI Act. They are 'information or an opinion ... about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion'. The same conclusion could as easily be reached about a reference in the 2011 letter to the fact that the former Prime Minister has a particular role in a certain organisation. The former Prime Minister's identity could reasonably be ascertained from that reference.
  3. The remaining content of both letters consists almost entirely of expressions of opinions on matters of public policy. Apart from the details mentioned already, there is no reference to the former Prime Minister's own background, associations, or experience. If the letters were not known to have been sent by a former Prime Minister, there would be nothing in them which would have allowed the author of the letters to be identified as anything other than an engaged member of the public holding certain views.

 Could the identifying details be redacted from the letters under s 22 of the Act, and the applicant given access to the remainder?

  1. It is known by the applicant that the letters were sent by a former Prime Minister: that was the nature of his FOI request. If the letters were widely disseminated following their release to the applicant, the fact of their authorship would also be disseminated. There are only six living former Prime Ministers, and one, the Hon Kevin Rudd, was excluded from the scope of the applicant's request. The applicant, and any other person to whom the letters were disseminated, would know that the letters were sent by one of five people who have been prominent in public life.
  2. The views expressed in the letters are not idiosyncratic, and could plausibly have been expressed by a former Prime Minister other than the actual author. However, there is a reasonable possibility that either the applicant or another person to whom the contents of the letters were circulated could, after some research, identify the author. The process of inquiry would be simplified by the fact that the class of potential authors is so small. The knowledge that the 2010 letter was signed by other signatories, even though they would not be identified by the release of the letter, could also assist inquiries.
  3. Even with redactions, the contents of the letters could allow the identity of the former Prime Minister to be reasonably ascertained. On balance, I am prepared to accept that any disclosure of the letters, complete or redacted, would constitute disclosure of the former Prime Minister's personal information.
  4. The approach that I have taken to this issue is in line with guidance given in the Guidelines that I have issued as Australian Information Commissioner under s 93A of the FOI Act:

    In certain circumstances ... it may be appropriate to consider whether the individual's identity may be ascertainable by the world at large. This may be appropriate where the applicant is a journalist or interest group, for example.[1]

    The applicant in this case is a journalist for a leading newspaper.  It is reasonable to conclude that the contents of the letters ‘have the potential to be disseminated widely'.[2] 

 Would disclosure of the letters be an unreasonable disclosure of personal information?

  1. The conditional exemption in s 47F of the Act applies only if the disclosure of personal information would be unreasonable. The Guidelines note that there is a potential for overlap between the test of unreasonableness, considered at this stage, and the public interest test under s 11A(5), which follows later in the decision making process.[3]
  2. In most cases, not much will turn on whether issues are considered as going to the reasonableness of disclosure or the public interest in disclosure. However, the FOI Act treats them as separate issues and requires the reasonableness of the disclosure to be examined prior to the application of the public interest test. I will follow that course, although in doing so I will be considering under the heading of unreasonableness some issues that the parties presented as public interest factors.
  3. At internal review, the Departmental decision maker essentially gave two reasons for not releasing the letters to the applicant. The first was that disclosure of the letters would prejudice the protection of the former Prime Minister's right to privacy. The second was that disclosure would hinder the Prime Minister's relationship with her predecessors and deter them from giving her the benefit of their views.
  4. The effect that disclosure of personal information will have on a person's privacy is relevant in deciding whether disclosure would be unreasonable. However, not all disclosure of personal information will have an unreasonable impact. Other factors that may be relevant include the nature of the personal information and the context and circumstances in which it was provided obtained by or provided to a government agency.
  5. In Smallbone v NSW Bar Association [2011] FCA 1145, Yates J, in the course of applying Principle 6.1(c) of the National Privacy Principles (NPP), stated that an individual's privacy would include and comprehend an expression of opinion by them in circumstances in which it was intended only for the person or persons to whom the opinion was expressed (at [56]). It was held that disclosure of information that would identify judicial officers and members of the legal profession as having provided opinions to the NSW Bar Association about an applicant's suitability to be appointed Senior Counsel would have an unreasonable impact on their privacy (at [57], [63]).
  6. In this case, disclosure of the letters would identify the former Prime Minister as having expressed certain opinions to the current Prime Minister. The question is whether, in the circumstances, the letters were a private communication of views intended only for the Prime Minister. The decision maker on internal review seemed to reach this conclusion, holding that there was no expectation that the Prime Minister would convey the contents of the letters to others broadly. In contrast, the applicant submitted that former Prime Ministers writing to the current Prime Minister would have little expectation of privacy.
  7. A letter between a former and a current Prime Minister could, depending on the contents and the circumstances, be a private communication or an expression of opinion that might as readily be conveyed in a more public manner. In my view, the 2010 and 2011 letters were not private communications; they expressed opinions on issues of public policy that are commonly discussed in the public arena, including by former Ministers. This distinguishes them from the opinions about an individual's suitability for professional advancement provided to the NSW Bar Association in Smallbone. Nothing in the opinions, the supporting arguments or the expression contained in the letters in this case would make them unsuitable to be a contribution to public debate. It would be surprising if the former Prime Minister confined the expression of his opinions on these important public matters to a private communication for the consideration of the Prime Minister alone. Nor is there anything in the letters or in the context which would have indicated to the Prime Minister that representations were being made to her privately and that the existence of this communication from a former Prime Minister should not be revealed to others.
  8. The other basis for the access refusal decision at internal review was that release of the documents under the FOI Act could ‘hinder the Prime Minister's relationship with former Prime Ministers' and ‘deter former Prime Ministers from providing their personal views in writing to the Prime Minister, thereby impeding the Prime Minister's ability to have the benefit of their views which, in turn, could negatively impact on the operations of the Australian Government.' The applicant submitted that, as former Prime Ministers' views have the potential to influence the operations of the Australian Government, they ought to be disclosed and scrutinised.
  9. The weight to be attached to this consideration will again depend on the content and circumstances of the communication. Former ministers can provide an important source of advice and expertise to the Australian Government. They may be able to offer serving ministers a unique perspective on affairs of state derived from their own experience in high office. It should be open to a senior minister to consult a former minister to obtain advice based on their experience. Assurance of non-disclosure may be reasonable in these circumstances to allow the former minister to give the current minister the full benefit of his or her insights. Similarly, it may be desirable for a former minister to be able to approach a current minister to convey confidential advice that will be received personally or that will be restricted in circulation.
  10. However, having found that the letters were not intended for the Prime Minister alone, for similar reasons I conclude that they do not constitute confidential advice on affairs of state from a former to a current minister based on the former Prime Minister's experience in public office. It has not been suggested that the letters were written in response to an invitation from the current Prime Minister to the former Prime Minister. Neither letter discloses that the views expressed draw upon experience gained by the former Prime Minister during his time in public office. Indeed, the 2010 letter was co-signed by a number of other prominent Australians who shared the former Prime Minister's views without sharing his experience as a senior minister. The reasons which may in some circumstances make it unreasonable to disclose correspondence between current and former ministers do not apply in this case.
  11. The claim for exemption did not focus on the content of the letters. It was placed at the level of principle: that the privacy of all communications between current and former Prime Ministers should be protected. However, the FOI Act enacted by the Parliament of Australia applies not only to documents generated by government, but to correspondence sent to ministers from people outside government, including former officeholders in government. A presumption of openness permeates the FOI Act, particularly since the amendments to the Act in 2010. This is widely known and understood both inside and outside government. The internal review decision referred to a letter of 30 April 2009 from the then Cabinet Secretary, Senator the Hon John Faulkner to departmental secretaries and agency heads, which emphasised that the starting point for considering FOI requests should be a presumption in favour of giving access to documents. A blanket approach which assumes that all communications from former to current Prime Ministers will be exempt from disclosure under the FOI Act, regardless of their content or the context, is incompatible with the culture of disclosure which the FOI Act is intended to promote.
  12. Section 47F(2) lists three factors to which regard must be had in considering whether disclosure of personal information would be unreasonable. They are:
    • the extent to which the information is well known
    • whether the person to whom the information relates is known to be or to have been associated with the matters dealt with in the documents
    • the availability of the information from publicly accessible sources.
  13. These factors do not directly arise in this case as there is no information before me to indicate that the author is known by others to have raised these issues with the Prime Minister, or has publicly acknowledged having done so. I am aware that through internet searches I could explore whether the former Prime Minister had expressed similar views publicly on other occasions. However, that line of research would complicate this IC review unnecessarily. It would require me, in order to comply with the obligation to observe natural justice, to invite submissions from the parties on any views which I had formed through independent research. In light of the conclusions that I have reached on the basis of other factors it is not necessary to the resolution of this case that I take these further steps. I need go no further than to note that both letters deal with matters of broad public interest that are commonly discussed in the public arena. In my view, it would not be a matter of surprise that the former Prime Minister held opinions on these issues and chose to communicate these opinions to the present government.
  14. I conclude that, in all the circumstances, the disclosure under the FOI Act of the 2010 and 2011 letters signed by the former Prime Minister would not be unreasonable. The letters are therefore not conditionally exempt under s 47F and in compliance with s 11A(3) they must be given to the applicant in full, with the exception of the names and signatures of the other signatories to the 2010 letter, which were not within the revised scope of the applicant's FOI request.

 Would disclosure of the documents be contrary to the public interest?

  1. Since I have found that the documents are not conditionally exempt, it is not necessary for me to examine this issue. I note only that many of the applicant's arguments concerning the public interest were necessarily framed in general terms, as the applicant did not have knowledge of the content of the documents in question. Some of those arguments are not in fact relevant to the two documents, though this is something that the applicant could not have known.

 Decision

  1. Under s 55K of the FOI Act, I set aside the Department's decision of 22 December 2011 and decide, in substitution for that decision, that the documents that are the subject of this decision are not exempt and that the applicant must be given access to them, with the names and signatures of the other signatories to the 2010 letter redacted to reflect the revised scope of the applicant's FOI request.

Professor John McMillan
Information Commissioner

22 November 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 (AAT). 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 [6.123].

[2] Guidelines [6.118], citing Victoria Police v Marke [2008] VSCA 218 at [68] (Weinberg JA).

[3] Guidelines [6.126].