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Fletcher and Prime Minister of Australia [2013] AICmr 11 (22 February 2013)

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

Summary of case details
Applicant:

Paul Fletcher MP

Respondent: Prime Minister of Australia
Decision date: 22 February 2013
Application number: MR11/00308
Catchwords:

Freedom of information — Whether diary entries relating to meetings with cross-bench members of Parliament are official documents of a Minister — (CTH) Freedom of Information Act 1982 s 4(1)

 

Freedom of information — Whether work involved in processing FOI request would substantially and unreasonably interfere with the performance of Prime Minister's functions — (CTH) Freedom of Information Act 1982 ss 24, 24AA

  Contents

 Summary

  1. I set aside the decision of the Office of the Prime Minister of 19 September 2011, substituting my decision that:
    • the documents sought are official documents of a Minister for the purpose of s 4 of the Freedom of Information Act 1982 (the FOI Act); and
    • the work involved in processing the request would not substantially and unreasonably interfere with the performance of the Prime Minister's functions for the purpose of s 24AA(1)(a)(ii) of the FOI Act.
  2. The Office of the Prime Minister must now make a decision on the applicant's FOI request, considering whether any exemptions apply to the documents requested.

 Background

  1. On 16 August 2011, Mr Paul Fletcher MP, the federal member for Bradfield, made a request under the FOI Act to the Office of the Prime Minister for access to:

    Extracts from the Prime Minister's diary between August 21 2010 and the date of this email, showing all meetings scheduled to be attended by any one or more of the Member for Melbourne, the Member for Lyne, the Member for New England, the member for Denison, the Leader of the Greens (Bob Brown) and the Deputy Leader of the Greens (Senator Christine Milne).

    I will refer to the listed individuals as 'the crossbench MPs', denoting the fact that they are not members of the Government or the Opposition and sit on the Parliamentary benches between them.

  2. On 12 September 2011 the applicant revised the request to clarify that he sought only diary entries for meetings that indicated, on their face, that one of the listed individuals was scheduled to attend. This clarification meant that the Prime Minister's office was not expected to check whether a meeting either occurred or was attended by a person named in the diary.
  3. On 19 September 2011 the Prime Minister's office refused the request on the basis that finalising the request would substantially and unreasonably interfere with the performance of the Prime Minister's functions.
  4. On 26 September 2011 the applicant sought IC review of the decision under s 54L of the FOI Act.

 Decision under review

  1. The decision under review is the decision of the Office of the Prime Minister on 19 September 2011 to refuse Mr Fletcher's request.

 Issues

  1. The Department of Prime Minister and Cabinet (the Department) has made submissions on behalf of the Prime Minister's office in this review.[1] The submissions rely on two grounds for claiming that Mr Fletcher's FOI request should not be further processed, and that access to the requested documents should be refused.
  2. The Department first submits that none of the documents are an 'official document of a Minister' as defined in s 4 of the FOI Act. Second, the Department submits that the disclosure of the documents would be a substantial and unreasonable interference with the performance of the functions of the Prime Minister, under s 24AA(1)(a)(ii) of the FOI Act.
  3. As a preliminary matter, I note that under s 55D of the FOI Act the onus is on the Office of the Prime Minister (with the assistance of the Department) to demonstrate that a decision that the documents should not be released is justified.
  4. I will consider each of the arguments advanced by the Department in turn. In summary, I am of the view that the Office of the Prime Minister has failed to discharge the onus put upon it by s 55D.

 Official document of a minister

  1. The Department has submitted that the Prime Minister maintains a single diary that contains information about engagements that she has in four capacities: as the Prime Minister of Australia; as Leader of the Federal Parliamentary Labor Party (ALP); as the Member for Lalor; and as a private individual.
  2. The submission is that any diary entries relating to meetings with the crossbench MPs were conducted in her capacity as ALP Leader and not in her capacity as Prime Minister. This is because the meetings arise from agreements entered into by Ms Gillard in her capacity as ALP leader in order to allow the ALP to form Government.
  3. The issue to be decided is whether the relevant diary records fall within the definition of 'official document of the Minister'. That phrase is defined in s 4 of the FOI Act as a document that is in a Minister's possession and 'that relates to the affairs of an agency or of a Department of State'.
  4. I have earlier dealt with the same issue in three decisions: Parnell and Prime Minister of Australia [2011] AICmr 10, Parnell and Prime Minister of Australia (No 2) [2011] AICmr 12 and Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31. The case most directly in point is Parnell and Prime Minister of Australia (No 2) [2011] AICmr 12. I there decided that diary entries of the Prime Minister for meetings with business leaders at the ALP annual conference, as part of the ALP business observer program, were not official documents of the Minister for FOI Act purposes. The relevant facts were that the meetings occurred at an ALP conference; they were arranged by the ALP and not by a government agency; ALP business observer programs were customary party political events; and there was nothing in the diary entries that related to the affairs of any Australian Government agency, or that indicated the topic of discussion.
  5. I have not viewed the diary entries in this case, as the FOI processing has not reached the stage of identifying particular diary entries. However, on the basis of the Department's submission and documents on the public record, I am not satisfied that the relevant diary entries will fall outside the definition of 'official document of the Minister'.
  6. A distinction can in my view be drawn between this case and Parnell (No 2). The Department has acknowledged that the meetings follow agreements reached between the ALP and the crossbench MPs. There were three such agreements.[2] One of the agreements dated 1 September 2010 is headed 'The Australian Greens & The Australian Labor Party ("The Parties") – Agreement'. The Agreement is entered into between five parties, who were described in a preface to the Agreement as follows:

    Between:
    The Hon Julia Gillard MP
    Prime Minister, MP Lalor, Leader of the Australian Labor Party
    The Hon Wayne Swan MP Deputy Prime Minister, MP Lilley, Deputy Leader of the Australian Labor Party

    And

    Senator Bob Brown Senator for Tasmania, Leader of the Australian Greens
    Senator Christine Milne Senator for Tasmania, Deputy Leader of the Australian Greens
    Adam Bandt MP‐elect MP Melbourne, Australian Greens representative in the House.

  7. The purpose of the Agreement is to establish 'a basis for stable and effective government', and (over five pages) outlines agreed principles, goals, Parliamentary commitments, policies and working relationships. There is agreement to the following arrangements:
    1. When Parliament is in session, the Prime Minister will meet with Senator Brown and Mr Bandt each sitting week, principally to discuss and negotiate any planned legislation.
    2. When Parliament is not in session, the Prime Minister, or her delegate, will meet with Senator Brown and Mr Bandt, or their delegate, at least once each fortnight, principally to discuss the upcoming legislative agenda.
    3. The Government will endeavour to give at least six working days' notice of the introduction of legislation to the House.
  8. There are identical provisions in the two other Agreements: an Agreement dated 2 September 2010 entered into between the Prime Minister and Mr Andrew Wilkie MP-elect; and an Agreement dated 7 September 2010 entered into between the Prime Minister and Deputy Prime Minister and Mr Tony Windsor MP and Mr Rob Oakeshott MP. The latter Agreement contains a different and more extensive list of policy objectives and commitments.
  9. It is a reasonable assumption, based on that information, that scheduled meetings with the crossbench MPs arose from those Agreements, and could canvass issues that relate 'to the affairs of an agency or of a Department of State'. That phrase should be understood broadly as encompassing any matter that could be the subject of a Government action or decision, of legislation introduced into the Parliament by a Government minister, or that falls within the portfolio responsibility of a minister.
  10. It is speculative that other matters, not falling within that description, were discussed at meetings that occurred between the Prime Minister and crossbench MPs. However, the relevance of that possibility to this particular FOI request is slight. The request is only for the diary entry of each scheduled meeting with a cross-bench MP. Even if a diary entry does contain a reference to matters that do not relate to the affairs of an Australian Government agency, the diary reference may still be an 'official document of the Minister'. As I noted in Parnell (No 2), 'a document can have a dual character and contain both "official" and "non-official" information'. In that event, the FOI Act requires a Minister to take reasonable steps to prepare an edited copy of the document.[3]
  11. I therefore decide that the Office of the Prime Minister has not discharged its onus of demonstrating that the documents are not official documents of a Minister.

 Substantial and unreasonable interference with the performance of a minister's functions

  1. In another decision delivered on the same day, Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10, I discussed the requirements of s 24AA of the FOI Act, and how they may apply to a request for access to extracts from a Prime Minister's diary. Section 24AA(1)(a)(ii) requires a decision on whether work involved in processing an FOI request to a minister would 'substantially' as well as 'unreasonably' interfere with the performance of the minister's functions. A non-exhaustive list of matters that must be considered by a minister are specified in s 24AA(2), including the resources that would be used by the 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.
  2. Other variable factors that can be relevant include the staffing resources available to a minister for FOI processing, whether the processing work requires the personal attention of the minister or senior advisers, the impact that processing the request may have on other work in the minister's office, whether an applicant has cooperated in framing the request to reduce the processing workload, and steps proactively taken by a minister to publish information of the kind requested by an applicant.
  3. That long list of factors, set in a context of deciding whether a processing burden would be 'substantial' and 'unreasonable', means that it is not possible under s 24AA to specify an indicative number of hours that a minister's office can be expected to devote to an FOI request. However, as I indicated in Davies, the role of a Prime Minister as the head of national government with a busy schedule and extensive commitments is an important contextual factor, especially in processing a request that requires the special attention of senior staff in the Prime Minister's office.
  4. It is necessary to balance, against those considerations, that there is a significant public interest in transparency of the meeting schedules of top government officials and political leaders. I referred in Davies to the practice of many heads of government in Australia and other countries of electronically publishing aspects of their engagements or schedule. A related argument was put by Mr Fletcher in this case in his application for IC review. He claimed that his request aimed to 'promote accountability concerning the interaction of key parliamentary figures who have entered into an agreement with the Government to enable it to form government, and who are playing a significant part in the policy development process'.[4]

 Submissions and findings

  1. The Department has submitted that identifying the documents in issue will require a senior adviser to the Prime Minister to review approximately 500 pages of printouts containing thousands of entries from a Microsoft Outlook diary. The Prime Minister's office's view, from a test search, is that a keyword search would not adequately identify the information the applicant seeks. Manual inspection of the diary would have to be undertaken by a senior adviser in the office.
  2. It is estimated that the diary inspection would take approximately 1 minute per page. On this estimate the process of identifying relevant items would take 8 hours and 20 minutes. Additional processing time may be spent by an officer in assessing whether the information in the diary relates to the Prime Minister's official functions, is exempt under the FOI Act, if consultation with a third party is needed, and to redact exempt information and prepare and deliver an access decision.
  3. My view is that this is at the upper end of plausible estimates as to how long it would take to identify and examine relevant diary entries. It assumes that the diary record for each day of the relevant period (one year) would need to be reviewed at the same intensity to confirm if there was a scheduled meeting between the Prime Minister and one of the crossbench MPs. If the officer reviewing the diary is familiar with the relevant meeting arrangements, it should be possible to hasten the search by focusing on periods when meetings are typically scheduled. The Agreements provide for a weekly meeting with the Prime Minister when Parliament is in session, and for a meeting at least each fortnight with the Prime Minister or a delegate when Parliament is not in session. It is only meetings with the Prime Minister that are covered by this FOI request.
  4. It is not apparent why this task of identifying scheduled meetings could not be delegated to some degree either to Departmental officers (with appropriate security clearances) or to junior ministerial office staff. It should be a reasonably straightforward administrative task, notwithstanding the Department's submissions about the form in which the diary is kept. A visual scan of an electronic or hard copy diary page should ordinarily reveal when meetings have been scheduled and with whom. The applicant's request is confined to each diary page 'which shows a meeting that is scheduled to be attended' by the Prime Minister and a crossbench MP. The request does not require further research to confirm that a meeting was held, or that a diary page is an accurate contemporaneous record of the Prime Minister's engagements for a particular day.
  5. Once the scheduled meetings between the Prime Minister and one or more crossbench MPs are identified, I do not think it would be a time-consuming task to decide if the meeting details contain exempt information. The fact that regular meetings may be held is already a matter of public knowledge. Nor do I think it would be a time-consuming task to prepare a statement of reasons for exempt information that is not released, or to prepare an edited document of the information that is to be released.
  6. On balance, I am not satisfied that a practical refusal reason exists in this case to deny Mr Fletcher's request. For the reasons given, I doubt that the task will be as time-consuming as the Department has submitted. Lest I be wrong, and it will take 8 hours and 20 minutes to peruse the diary, plus additional time to reach a decision, I am not satisfied that the Office of the Prime Minister has discharged the onus of establishing that this would constitute a substantial and unreasonable interference with the Prime Minister's functions. Official documents held by the Office of the Prime Minister can be requested under the FOI Act, which carries an obligation to devote part of the resources of the office to this task. The documents requested by the applicant are likely to be a matter of public interest, not least when the request is made by a member of Parliament. The applicant has acted reasonably in framing the request in a specific manner calculated to reduce the processing burden on the Prime Minister's office.

 Subsequent processing of the applicant's request

  1. My decision that a practical refusal reason does not exist within the meaning of s 24AA(1)(a)(ii) means that the Office of the Prime Minister must continue to process Mr Fletcher's request.
  2. The FOI Act does not give clear guidance on the rules that apply in this situation. The normal rule is that a minister must notify an applicant of a decision on a request no later than 30 days after the day on which the request is received (s 15(5)(b)). That occurred in this case. No charge is payable if a minister does not notify a decision within the statutory time limits in the Act, including any authorised extension (Freedom of Information (Charges) Regulations 1982, reg 5(2),(3)).
  3. It is unrealistic in the present case to expect the Prime Minister's office to make a fresh decision on the applicant's request within the few remaining days of the original statutory processing period. Much of the work that is required to locate the relevant documents and make a decision on whether access will be given is still to be undertaken.
  4. There are two options that, in my view, would be compatible with the requirements of the FOI Act. One is to regard the processing period referred to in s 15(5)(b) as commencing afresh from the date my decision is notified to the parties. In the normal course of events this would require the Prime Minister's office to notify a decision to the applicant no later than 30 days after that date, though it could seek the applicant's agreement to an extension of time (s 15AA), or extend the time for a further 30 days to enable consultation with a third party (s 15(6)). This would have a similar effect as s 24(8), which provides that the period during which an agency or minister is waiting for a response to a request consultation notice is to be disregarded in working out the 30 day FOI processing period. There is a similar suspension of time in s 31(2), until a response to a notice of liability to pay a charge is received.
  5. The other option is for the Office of the Prime Minister to apply to the OAIC for an extension of time under s 15AC(4). However, that provision applies only where there was a deemed refusal following a minister's failure to make a decision within the statutory time limits.
  6. In the circumstances, I think the first option is the better one. It is an appropriate option, given that my decision requires the Prime Minister's office to process the request by a different path to that earlier followed.

 Decision

  1. Under s 55K of the FOI Act, I set aside the decision of the Office of the Prime Minister of 19 September 2011 and decide, in substitution for that decision, that the completion of the applicant's FOI request would not substantially and unreasonably interfere with the Prime Minister's functions, and that the diary entries are official documents of a Minister.

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] Letter from Department to the Office of the Australian Information Commissioner (OAIC) dated 16 January 2013.

[2] The three Agreements described in the Reasons are published on the ALP website: www.alp.org.au/federal-government/government-agreements/.

[3] See s 4, definition of 'exempt document' paragraph (c), and s 22 of the FOI Act.

[4] Application for IC review, dated 26 September 2011.