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Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 (22 February 2013)

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Decision and reasons for decision of Australian Information Commissioner, Prof John McMillan

Summary of case details
Applicant:

Anne Davies

Respondent: Department of the Prime Minister and Cabinet
Prime Minister of Australia
Decision date: 22 February 2013
Application number: MR11/00046, MR11/00072
Catchwords:

Freedom of information — Practical refusal decision — Whether work involved in processing FOI request would substantially and unreasonably divert agency resources or interfere with performance of Prime Minister's functions — Access to Prime Ministerial diaries — (CTH) Freedom of Information Act 1982ss 24, 24AA

  Contents

 

 Summary

  1. This statement of reasons concerns two applications from the same applicant for Information Commissioner review (IC review) under the Freedom of Information Act 1982 (the FOI Act). Both IC review applications raise a similar issue as to whether a 'practical refusal reason' exists under s 24AA(1) of the FOI Act for refusing the applicant's requests for access to diary entries of the current and a former Prime Minister.
  2. The two decisions under review are:
    • a decision of the Department of Prime Minister and Cabinet (the Department) of 11 February 2011, refusing access to three months of diary entries of former Prime Minister, the Honourable Kevin Rudd MP; and
    • a decision of the Office of the Prime Minister of 25 March 2011, refusing access to one month of diary entries of the current Prime Minister, the Honourable Julia Gillard MP.
  3. I affirm both decisions to refuse access to documents under s 24(1) of the FOI Act. I am satisfied that a practical refusal reason exists in each case. Specifically, I am satisfied that the work involved in processing each request would, in relation to the diary entries of former Prime Minister Rudd, substantially and unreasonably divert the resources of the Department from its other operations; and in relation to the diary entries of Prime Minister Gillard, substantially and unreasonably interfere with the Prime Minister's functions.

 Background

  1. I will discuss the background to each application for IC review separately.

 FOI request for access to former Prime Minister Rudd's diary entries

  1. The applicant, a journalist with the Sydney Morning Herald, applied to the Department on 16 November 2010 seeking 'access to details of Prime Minister Kevin Rudd's appointments listing the name, date, location and purpose of meetings from 1 January 2010 through to 22 March 2010 ... [excluding] entries relating to family or private matters ... [and] meetings with individual constituents from the Prime Minister's electorate'. The applicant asked that 'information of a personal nature, such as email addresses or mobile phone numbers' be excluded. This request was addressed to the Department, as the records of former Prime Minister Rudd had been transferred to the Department after he left office.
  2. On 13 December 2010, the Department wrote to the applicant advising that it intended to refuse her request under s 24AA(1)(a)(i) of the FOI Act on the basis that processing the request would be a substantial and unreasonable diversion of the Department's resources. The Department invited the applicant to amend the scope of her request. By email dated 17 December 2010 the applicant declined to narrow the scope of her request (as she had refined the terms of her request in discussion with the Department prior to formally making it).
  3. On 11 February 2011, the Department refused the applicant's request under s 24(1) of the FOI Act. On 22 March 2011, the applicant sought IC review of that decision under s 54L of the FOI Act.

 FOI request for access to Prime Minister Gillard's diary entries

  1. The applicant made a similar request on the same date (16 November 2010) to the Office of the Prime Minister seeking access to entries in Prime Minister Gillard's diary. The request was framed in the same terms as the request described at [5] above, except that the period requested was 30 August through to 16 November 2010.
  2. The Department wrote to the applicant on behalf of the Prime Minister's office on 25 November 2010 advising of the Office's intention to refuse the FOI request under s 24AA(1)(a)(ii). By email dated 3 December 2010, the applicant narrowed the scope of her request by asking the Office to 'delete details relating to the Prime Minister's travel' and to limit the time period of the request to 15 October to 16 November 2010.
  3. On 25 March 2011, the Department wrote to the applicant on behalf of the Prime Minister's office advising that the Office refused the applicant's request under s 24(1) of the FOI Act. The Department also foreshadowed in a letter dated 31 January 2011 that an access charge estimated at $3150.21 would be payable.
  4. On 6 April 2011, the applicant sought IC review of that decision under s 54L of the FOI Act.

 Decisions under review

  1. The decisions under review are the decision of the Department of 11 February 2012, and the decision of the Office of the Prime Minister of 25 March 2012, to refuse access to the requested documents under s 24(1) of the FOI Act.

 Refusing access for a practical refusal reason under ss 24, 24AA

  1. Section 24 of the FOI Act allows an agency or Minister to refuse access to a document if satisfied that a 'practical refusal reason' exists in relation to the request. This term is defined in the following way in s 24AA:

    24AA When does a practical refusal reason exist?

    1. For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if ...
      1. the work involved in processing the request:
        1. in the case of an agency – would substantially and unreasonably divert the resources of the agency from its other operations; or
        2. in the case of a Minister – would substantially and unreasonably interfere with the performance of the Minister's functions; ...
    2. Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
      1. identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
      2. deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
        1. examining the document; or
        2. consulting with any person or body in relation to the request;
      3. making a copy, or an edited copy, of the document;
      4. notifying any interim or final decision on the request.
    3. In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
      1. any reasons that the applicant gives for requesting access; or
      2. the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or
      3. any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
  2. Before relying on a practical refusal reason to refuse a request an agency or minister is required by s 24(1) to undertake a 'request consultation process' in accordance with s 24AB. In essence the agency or minister must give the applicant a written notice describing the practical refusal reason and inviting consultation with a nominated contact person (s 24AB(2)). If consultation occurs, the agency or minister must take reasonable steps to assist the applicant to revise their request so that the practical refusal reason no longer exists (s 24AB(3)).
  3. This requirement is discussed in Guidelines that I have issued under s 93A of the FOI Act.[1] At [3.72] the Guidelines advise that an agency or minister could 'provide a breakdown of the time estimated for each step of the process, explain the difficulties the agency will have in dealing with the request and suggest what would be a reasonable request in the circumstances'.
  4. I am satisfied that, in relation to each request, the Department and the Office of the Prime Minister undertook a request consultation process as required by the Act. As to the request for Mr Rudd's diaries, the Department's obligation to consult was fulfilled when the applicant advised that she wished her request to be processed on its original terms. As to the request for Ms Gillard's diaries, the consultation resulted in the applicant narrowing her request to a one month period. However, the applicant declined to narrow the request further after being advised by the Department on behalf of the Office that the request still required a substantial and unreasonable diversion of the Office's resources.

 The test for deciding if a practical refusal reason exists

  1. There are different tests in s 24AA(1) for requests made to agencies and ministers. As to an agency, the test is whether 'the work involved in processing the request ... would substantially and unreasonably divert the resources of the agency from its other operations' (s 24AA(1)(a)(i)). As to a minister, the test is whether 'the work involved in processing the request ... would substantially and unreasonably interfere with the performance of the Minister's functions' (s 24AA(1)(a)(ii)).
  2. There are points of similarity and difference in both tests. One similarity is that the key terms in both tests are 'substantial' and 'unreasonable'. Both terms draw attention to a common purpose, explained in the Guidelines, that 'This is an important power aimed at ensuring that the capacity of agencies and ministers to discharge their normal functions is not undermined by processing FOI requests that are unreasonably burdensome' (at [3.58]).
  3. Another similarity is that s 24AA(2) of the FOI Act specifies, for both tests, a non-exhaustive list of matters that must be considered by agencies and ministers. The matters include the resources that would be used by the agency or minister in: identifying, locating and collating documents; deciding whether to grant, refuse or defer access; consulting with other parties; redacting exempt material from documents; making copies of documents; and notifying an interim or final decision to an applicant. The Act similarly specifies the same list of matters that an agency or minister must not have regard to: an applicant's reasons for requesting access, an agency's or minister's belief as to those reasons, and the maximum access charge payable by an applicant (s 24AA(3)).
  4. The key textual difference in both tests is that s 24AA directs attention to whether a request would divert an agency's resources from its other operations, or interfere with the performance of a Minister's functions. That conveniently describes the different nature of an agency's or minister's work: the breadth of an agency's work is appropriately described as its 'operations' while the breadth of a minister's work is appropriately described as the performance of functions. However, to draw attention to that difference is also to recognise that an agency or minister may be differently placed in terms of the resources they can reasonably allocate to FOI processing, and the impact that a particular request could have on the work of the agency or minister.
  5. To give a more practical bent to that discussion, it cannot be overlooked in the present case that both requests seek access to the Prime Minister's diaries. They are likely to require processing work by staff of the Prime Minister's office. The Prime Minister is the head of national government, with a busy schedule and extensive commitments that can each be time-consuming. The work of both the Prime Minister and her office staff will be pressured, and there are likely to be many unmet demands on their time. It may not be a straightforward task to decide which of the Prime Minister's diary engagements can be published. There is a risk of inappropriate or inadvertent disclosure of sensitive information about the Prime Minister's activities, discussions or meetings, with any of a large range of people or on a large range of issues.
  6. On the other hand, the FOI Act does not preclude a minister obtaining assistance from a portfolio department in processing FOI requests.[2] It is therefore necessary, in deciding whether a practical refusal reason exists in relation to a request to a minister, to have regard to the broader setting in which the request may be processed. A relevant matter will be the extent to which the minister, or perhaps key ministerial advisers, will necessarily be involved in processing the request or being consulted.
  7. The decisions of tribunals that have considered this issue provide interesting illustrations, but do not deliver strong guidance as to what would amount (in a case such as the present) to a 'substantial' and 'unreasonable' diversion of agency resources or interference with ministerial functions. As observed in other cases, 'substantial' is a term that 'admits of no ready or precise measure' (Cianfrano v Director General, Premier's Department [2006] NSWADT 137 [44]), and 'is not only susceptible of ambiguity [but is] calculated to conceal a lack of precision' (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Ors (1979) 27 ALR 367 at 382).
  8. Not surprisingly, Commonwealth and State tribunals (applying equivalent State information access provisions) have held that requests that were remarkably broad in scope and that required extensive processing work imposed a substantial and unreasonable processing burden. Examples are where the estimated processing time was 60 working days (Re Joyce E Shewcroft and Australian Broadcasting Corporation [1985] AATA 42), 69 staff weeks (Greg Finlayson and Family Court of Australia [1998] AATA 744), 229.5 person-hours (Cianfrano v Director General, Premier's Department [2006] NSWADT 137), 242 days (QVFT and Secretary, Department of Immigration and Citizenship [2012] AATA 501), and five to six weeks of administrative work followed by 14 staff-weeks of decision making time (Middleton and Building Services Authority [2010] QICmr 39); and where the estimated volume of material within the scope of a request was 600 departmental files (Re SRB and Department of Health, Housing, Local Government and Community Services (1994) 19 AAR 178 at [41]), and 465 lineal metres of filed documents (Wright and State Electricity Commission of Victoria [1998] VCAT 162).
  9. Considerably lesser periods have been treated in other cases as imposing a substantial and unreasonable processing burden. It was so held in respect of a request that would take 'at least 80 hours' (Thomson and Lockyer Valley Regional Council, Queensland Information Commissioner, unreported, 23 September 2010); a request that was estimated to take '30 hours or 4 days of full time work', because the nature of the material in issue meant that only one officer in the agency with the relevant (non-FOI) subject matter expertise could process the request (Christopher Ballam and Shire of Toodyay, Re [2009] WAICmr 4); and a request that would take only '14 hours of actual decision-making and processing time' in a small agency of only 23 employees (Cunningham and Rural Adjustment and Finance Corporation, Re [1996] WAICmr 29).
  10. In a similar vein, I mention the recommendation I made in a report in 2011 to the Attorney-General, Review of Charges under the Freedom of Information Act 1982, that a period of 40 hours be adopted as a statutory ceiling on processing time that could be relied upon by agencies in place of the practical refusal mechanism in s 24AA. This recommendation took account of the decision of the NSW Administrative Decisions Tribunal in Cianfrano v Premier's Department (2006) NSW ADT 137. In that case, after a careful analysis of the authorities, the Tribunal suggested that 40 hours was a reasonable presumptive period for examining whether a request imposed a substantial and unreasonable administrative burden on an agency. There has not yet been a response by Government to this recommendation, and so it is necessary to apply the terms of s 24AA in each case.
  11. There is a contrasting emphasis in other decisions of Commonwealth and State courts and tribunals. For example, in Chief Commissioner of Police v McIntosh [2010] VSC 439, Emerton J stated that the requirements of a Victorian equivalent of s 24AA 'are not easily satisfied'. The Court did not accept that an estimated 55 hours of processing work would substantially divert Victoria Police from its other operations. In Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 26 at [6] Ormiston JA noted that the equivalent provision in Victoria 'should only be applied to a clear case of substantial and unreasonable diversion of a department or other agency'. In Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35, Hennessy AP described work taking 'a minimum of 9 hours' as a 'relatively short time' and clearly insufficient to amount to a 'substantial and unreasonable' diversion.
  12. As I noted above at [23], these and other cases provide interesting illustrations, but do not provide strong and unequivocal guidance. Ultimately it is question of fact in the individual case whether a particular FOI request[3] to the agency or minister imposes, upon them, a 'substantial' and 'unreasonable' workload, viewed in the context of the agency's other operations or the minister's functions. Section 24AA prescribes a range of processing steps that can be taken into account (searching for documents, consulting other parties, reaching a decision, redacting exempt material, making copies and notifying a decision).
  13. Other matters may also be relevant. Some noted in the earlier discussion are the staffing resources available to the agency or minister for FOI processing, whether the nature of the work is so specialised that only certain officers can complete it, the impact that processing a particular FOI request could have on the agency's or minister's ability to undertake other work (including FOI processing), and whether an applicant has cooperated in framing the request to reduce the processing workload. As regards a request to a minister's office, some weight should be given to the national government responsibilities the minister discharges if processing the request could require high level staff attention within the minister's office. And, as I note below, some weight can also be given to steps proactively taken by an agency or minister to publish information of the kind requested by an applicant.
  14. Those (and potentially other) considerations must be balanced against the importance to be attached to the objectives of the FOI Act. This is addressed in the Guidelines (at [3.58]):

    Given the objectives in the FOI Act that information held by government is a national resource and that public access to information should be facilitated, agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources. Nor would the fact that a large number of documents lay within the scope of a request be determinative if the documents could be easily identified, collated and assessed.

  15. I turn now to consider whether a practical refusal reason exists in relation to the two requests in this case.

 Submissions on the nature of the diaries

  1. I begin by describing the Prime Ministers' diaries, both of which I inspected. They are similar in nature. Each is maintained as an electronic diary in a standard calendar format, with a list of appointments and reminders entered against time slots on each daily page of the diary. The entries are a mixture of official, party and personal engagements. The amount of detail in each entry varies; it is apparent from some items that a meeting is connected to the Prime Minister's official responsibilities, whereas some other items contain only a name, phone number, abbreviations details that do not readily convey the nature of the activity or the capacity in which a person was scheduled to attend a meeting with the Prime Minister.
  2. It is apparent that neither diary was prepared for public release. They were designed for an internal purpose and to be understood by those managing the diary or the Prime Minister's schedule. An external person viewing the diary may need an explanation or translation to understand some of the diary entries. Nor is the diary necessarily an accurate historical record of the Prime Minister's activities on a particular day: they are diaries prepared in advance, not after the event. In summary, the diaries are no different to the electronic diaries that many people maintain for essentially business or private purposes, or commonly a mixture of both.
  3. The request for access to Prime Minister Gillard's diary applies to only one month of the diary. The Prime Minister's office estimates that a hard copy printout for the relevant period 'is about 40 pages in length containing around 500 separate diary entries'.[4] The office estimates that processing the request would take 'approximately 163 working hours or just over 4 weeks'.[5] However, this estimate was regarded as 'artificially low ... to mitigate as far as reasonably appropriate the significant charges' that might otherwise apply, and that processing the request 'from beginning to end would actually take even longer'.[6] The estimate of time is based on the following steps being undertaken to finalise the request:[7]
    • separate assessment of each of the 500 diary entries
    • a preliminary enquiry on many diary entries to determine the nature and purpose of a meeting, whether the diary entry is an 'official document of a Minister' within the meaning of s 4(1) of the FOI Act, and 'supplementary discussions ... with others to determine the nature of each entry'
    • consultation with 'a significant number of third parties about their views on release', including consultation with 'in excess of 104 non-Australian Government entities ... many involving complex questions about possible damage to international relations and Commonwealth/State relations'
    • 'additional consultation with relevant Government agencies, including the Department of Foreign Affairs and Trade and the COAG Secretariat'
    • 'consultation ... with the Cabinet Secretariat to determine whether any Cabinet material may be captured by the request'
    • 'consultation with the security services ... to test whether disclosure of any entries could endanger the personal security of the Prime Minister or others'
    • possible consultation 'with third parties to determine whether they might have concerns about their personal affairs being disclosed'
    • consideration of possible exemption claims, including possible 'enquiries with other advisers in the Office about the sensitivity of the material' and obtaining supplementary advice 'from Departments of State and other ministerial offices'
    • preparation of a final FOI access decision, including a schedule of documents and 'an extended statement of reasons'.
  4. The Office of the Prime Minister also addressed the impact that processing the request would have on the other work of the office.[8] There was a single FOI coordinator and decision maker in the office, who at that time was handling nine other FOI requests to the Prime Minister, and expected to receive up to fifty during the calendar year.[9] The office was consulted on requests made to other agencies (six at the relevant time). The FOI coordinator had other responsibilities in the office, as an adviser on legal policy and governance issues, and to support the functions of the office in relation to Government, Cabinet, the Ministry and Parliament. The FOI coordinator could call on assistance from other staff in the office and the Department, yet many FOI issues in the office required the specialist attention of the FOI coordinator and the Prime Minister's principal adviser on Cabinet and Parliament.
  5. As to former Prime Minister Rudd's diaries, a far higher estimate of 'approximately 20 staff weeks or more' of processing time was made by the Department.[10] There was an estimated 1500 diary entries over the three month period, occupying 110 printed pages. In a one month sample, 98 of the 474 entries contained information in relation to third parties (individuals, commercial organisations, other agencies and foreign governments). The Department submitted that 'careful consideration would need to be given to consultation in relation to each entry before an access decision could be made'.[11] An additional complication is that the diary is now held by the Department, which may require greater consultation (including with Mr Rudd) to glean the nature of a particular diary entry and possible exemption claims.
  6. The applicant, Ms Davies, submitted that the processing time should not be as high as estimated. She noted the cooperative action she had taken to limit processing time, for example, by excluding personal information and travel details from the request. She made suggestions, based on her experience reporting on parliament and government, as to how the processing time could be contained. She made the following submission in relation to Prime Minister Gillard's diary entries:[12]

    We are talking about 40 pages only. Of the '500 or so entries' many will obviously be public events or events in the public domain, or are disclosed already by the [Prime Minister's office] on the public schedule ... We also know that Caucus and Cabinet take place on a set schedule and are regularly reported, so the release of these entries should be straightforward as well.

Some entries will be clearly outside scope, such as personal appointments, meetings with party officials etc and can be eliminated expeditiously.

I doubt there would be even 100 entries that could not be immediately determined as official documents within s 4(1) or out of scope. ...

The mere fact that a name appears on a list or in a document does not mean that it automatically triggers consultation. In most cases people attending appointments with the PM would expect that their visit would become public. ...

I have sought very limited information - names of the attendees of meetings and the subject matter in so far as it is disclosed in the diary entry. ... [T]he fact of the meeting is NOT disclosure of sensitive information discussed during the meeting.

  1. The applicant also argued a public interest case for greater disclosure or publication of the diary engagements of senior politicians. She gave examples of diary release in other jurisdictions, and made the following submission:[13]

Australians have an interest in knowing who their elected representatives meet with. It provides a window into who has access to the highest levels of government and who does not.

Having the Prime Minister's ear is perhaps the greatest prize for companies or governments who want to influence the shape of policy making at federal level.

When the Herald has asked companies why they donate to political parties, executives often respond that they believe it improves their access to politicians. They also pay millions each year to lobbyists to facilitate access because they believe it is commercially valuable to have the ear of politicians at the highest level.

 Findings

  1. The key issue in this case, as to both diary requests, is to estimate the time that would reasonably be spent in processing the requests. It is difficult to reach a precise or even reliable estimate.
  2. Some activities would presumably take little time - for example, identifying, locating and collating the documents requested, bearing in mind that the diaries are maintained in an electronic format. Copying and editing should also take only a small amount of time.
  3. However, I am satisfied (based on the submissions and my own inspection of the diaries) that it would be far more time-consuming to assess each diary entry, decide whether the entry is an 'official document of the Minister' or otherwise raises an exemption issue, decide whether consultation is required with other agencies or parties, conduct consultation, reach a decision on whether to release a diary entry, and prepare a decision that explains why some diary entries are exempt. This would require the input, and possibly a major commitment, from some senior staff in the Prime Minister's office, and possible consultation with the Prime Minister as to some diary entries. The diary analysis would need to be undertaken carefully and cautiously to avoid inappropriate or inadvertent disclosure of confidential or sensitive information.
  4. The processing work is likely to be more complex and time-consuming as to former Prime Minister Rudd's diary, given that he is no longer in office. The work would have to be undertaken primarily or exclusively by the Department, which may not have a close knowledge of the character or significance of particular diary entries.
  5. One cannot say with any certainty that it would take an estimated four weeks to decide on access to Prime Minister Gillard's diary, or an estimated 20 weeks to decide on access to former Prime Minister Rudd's diary. It may be that both estimates are on the high side, particularly the estimate relating to Mr Rudd.
  6. I am nevertheless satisfied that it would be a 'substantial' task to process each request. I am further satisfied that processing the request for Prime Minister Gillard's diary would 'unreasonably' interfere with the performance of the functions of the Prime Minister and her office. I am similarly satisfied that processing the request for former Prime Minister Rudd's diary would 'unreasonably' divert the resources of the Department from its other operations.

 Observations about public access to ministerial diaries

  1. There is undeniably a strong public interest in knowing what ministers are doing officially and who they are meeting or addressing. The current Prime Minister publishes on her website a brief diary described as 'Prime Minister's Public Schedule'.[14] The Deputy Prime Minister and Treasurer publishes a diary called 'On the Road'.[15] The Governor-General also publishes a 'Daily Program of Official Engagements'.[16]
  2. There is a similar practice in other jurisdictions. The Queensland Premier announced in November 2012 that the diaries of all ministers would be released publicly and updated each month.[17] The British Prime Minister's website contains a page headed 'Who Ministers are Meeting', with an entry for each minister of meetings with external organisations.[18] The United States President maintains a 'White House Schedule'[19] and 'Visitor Access Records'.[20]
  3. It is also noteworthy, as this case illustrates, that upon leaving office the Prime Minister's diaries are transferred to the Department for preservation. In time they become part of the historical record of the nation.
  4. There is no legal requirement for a minister to prepare a public diary, or to maintain a public or private diary in a particular format. It is clearly within the prerogative of each minister to decide those issues. The following comments should be read in that light.
  5. The Freedom of Information Act provides a public right of access to an 'official document of a Minister, other than an exempt document' (s 11(1)(b)). It is probable, as this case illustrates, that the substantial part of a minister's diary will be an official document to which any person can request access.
  6. Requests for access to ministerial diaries are not uncommon under the access to information laws applying in Australia and other countries. There are news reports of access being granted,[21] and court and tribunal decisions following the review of access refusal decisions.[22]
  7. Two access requests have failed in this case because there was a practical refusal reason to deny access to each request. However, in Fletcher and Prime Minister of Australia [2013] AICmr 11 (delivered on the same day) I reached a contrary decision in respect of a request for access to extracts from the Prime Minister's diary. The request was for all extracts from the diary over a one year period that showed a scheduled meeting between the Prime Minister and one or more of six nominated members of the Parliament. I found that a practical refusal reason did not exist and that the Office of the Prime Minister must process the request.
  8. The comparison of these two decisions frames the choice (or quandary) that now faces the Prime Minister's office, and indeed other ministerial offices. It will always be possible for a person to frame a request for access in a form that requires the request to be processed. An obvious example is that a request for only a few pages of an official diary is unlikely to invite a practical refusal denial. The individual request (or requests) are likely nevertheless to take some time to process and to require a commitment of time from ministers or senior staff with demanding responsibilities.
  9. The alternative is for ministers (or the Government) to take a more active stance by proactively publishing a greater level of detail than at present about ministerial appointments and meetings. This approach is implicitly encouraged by the FOI Act, especially since the 2010 amendments, which established an Information Publication Scheme (for agencies, not ministers); the Act further states that an agency may publish information in addition to that required by the Act (s 8(4)).
  10. Publication of ministerial diaries is unlikely to replace internal diaries that will contain other confidential, non-official and personal details. Nor will diary publication necessarily obviate FOI requests being made for the unpublished details. It is foreseeable, however, that the public interest will largely be satisfied by the published information. The existence of a public diary will also be a matter that is relevant to other FOI issues, including whether a request for unpublished details would interfere substantially and unreasonably with a minister's functions (s 24AA(1)(a)(ii)) or merits waiver of access charges on public interest grounds (s 29(5)(b)).

 Decision

  1. Under s 55K of the FOI Act:
    • I affirm the decision of the Department of Prime Minister and Cabinet of 11 February 2011, refusing the applicant's request under s 24(1) of the FOI Act
    • I affirm the decision of the Office of the Prime Minister of 25 March 2011, refusing the applicant's request under s 24(1) of the FOI Act.

Professor John McMillan
Australian Information Commissioner

22 February 2013

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] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982.

[2] See Guidelines, [2.21].

[3] Section 24(2) of the FOI Act provides that an agency or minister may treat two or more requests that relate to the same documents or subject matter as a single request in deciding if a practical refusal reason exists.

[4] Letter from the Office of the Prime Minister to the Office of the Australian Information Commissioner (OAIC) dated 13 October 2011.

[5] Letter from the Department to the applicant dated 25 March 2011.

[6] Letter from the Department to the applicant dated 10 March 2011.

[7] Letter from the Office of the Prime Minister to the OAIC dated 13 October 2011.

[8] Letter from the Office of the Prime Minister to the OAIC dated 13 October 2011.

[9] The annual FOI statistics published by the OAIC record 42 requests to the Office of the Prime Minister for 2011–12: www.oaic.gov.au/publications/reports/foi_agency_statistics_11-12/index.html.

[10] Letter from Department to applicant dated 11 February 2011.

[11] Email from Department to OAIC on 18 January 2011.

[12] Letter from the applicant to the OAIC received on 2 December 2011.

[13] Email from the applicant to the Department on 8 February 2011.

[14] See www.pm.gov.au/your-pm/public-schedule.

[15] See www.treasurer.gov.au/Home.aspx?PageID=089&min=wms.

[16] See www.gg.gov.au/program.

[17] See www.thepremier.qld.gov.au/newsroom/diary.aspx.

[18] See www.number10.gov.uk/transparency/who-ministers-are-meeting/

[19] See www.whitehouse.gov/schedule/complete.

[20] See www.whitehouse.gov/briefing-room/disclosures/visitor-records

[21] For example, 'David Bartlett's Appointments Diary; A Close Encounter with the Freedom of Information Act', Tasmanian Times, 2 March 2010; 'A non-stop Premier's diary reveals a media magnet', The Age, 20 November 2010.

[22] For example, The Cabinet Office v Information Commissioner EA/2008/0049 (UK Tribunals Service, 5 January 2009); Re Ravlich and Attorney-General; Minister for Corrective Services [2009] WAICmr 17 (Information Commissioner (WA), 14 August 2009); Canada (Information Commissioner) v Canada (Minister of National Defence [2011] 2 SCR 306 (Canadian Supreme Court).