The Case of the AG's Diary and Freedom of Information: Federal Court Upholds AAT Decision

In Attorney-General v Honourable Mark Dreyfus [2016] FCAFC 119 (6 September 2016), the Full Federal Court has ruled against the Federal Attorney-General Senator Brandis (the AG) in a Freedom of Information (FOI) matter relating to the gaining of access to the "electronic/email diary" of the AG. In its decision, the Full Court has ruled against the AG, whose key argument for resisting the FOI application from shadow Attorney-General, Mr Mark Dreyfus (the shadow AG), was that it would have ". . . interfered with his daily duties and taken hundreds of hours to process".

Background to the Application

This original application for review (see Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 (22 December 2015)), was lodged by the shadow AG and sought a review of the decision of a delegate of the AG to refuse a request for access to a document or documents under Freedom of Information Act 1982 (Cth)(the FOI Act). The refusal relied on sections 24 and 24AA of the FOI Act which permit access to be refused if a “. . . practical refusal reason exists in relation to the request”.

It was agreed that the FOI requests (which were two in number) be treated as a single request for access to the AG’s diary in a “. . . weekly agenda” format for a period starting from 18 September 2013 to 12 May 2014. In deciding the case, Justice Jagot had concluded that, the AG had not discharged the onus under section 61(1)(b) of the FOI Act, in that the decision not to release the "email diary information" was justified or that the Tribunal should give a decision adverse to the applicant and accordingly, the decision of the AG’s delegate that a ". . . practical refusal reason exists in relation to the requests should be set aside". The effect of the decision was not to grant access to the diaries but to return the matter to the AG's delegate for reconsideration (see our earlier article: Former Federal Information Commissioner Calls for FOI Overhaul Following AG's Diary Case).

Following on the above decision, the AG appealed to the Federal Court, which has now upheld Justice Jagot's decision and rejected the argument from the AG that the shadow AG's FOI application ". . . would have interfered with his daily duties and taken hundreds of hours to process". The decision does not mean the diary must be released immediately but requires that the FOI request ". . . has to be reconsidered". Further, the Commonwealth has been ordered to pay the relevant court costs.

The Federal Court Case

The key issues for consideration in the Federal Court were whether there was any error of law arising from the AAT's concluding that the AG had not discharged his onus of establishing that the primary decision was justified or that the AAT should give a decision adverse to the applicant such that:

  1. the AAT was not satisfied that a practical refusal reason existed in relation to the request; and
  2. the AAT decided that the work involved in processing the request would not substantially and unreasonably interfere with the performance of the AG’s functions.

On the above, the Federal Court concluded:

[70] In our opinion, no error in respect of the questions of law has been established.

[71] For these reasons, the appeal should be dismissed. The applicant must pay the respondent’s costs, as agreed or assessed.

Reaction to the Decision

In responding to the Federal Court Decision, the shadow AG, who was self-represented in the matter, is quoted as saying that whilst his appearance was without cost he hoped the AG had:

". . . learnt a lesson from this. He's now cost the Australia taxpayer well in excess of $50,000, . . . I call on Senator Brandis to now say definitively that he will not be wasting further taxpayer money by going on to the High Court of Australia, which he could potentially do. . . . Instead, he should expeditiously process this request, which was always a simple request."

An ABC News report quotes a spokesperson from the AG as saying the AG:

". . . will carefully study the decision of the Full Court of the Federal Court of Australia and its implications for government".

Further, SBS News reports that the AG has not ruled out launching a High Court challenge ". . . in a bid to keep his ministerial diary secret after suffering another legal blow". The AG continuing to raise matters such as national security concerns and that he would need to consult every person mentioned in the diary, as creating an unreasonable burden on his department. The AG argues that:

"The reason the litigation was defended by the Commonwealth was because it raised important questions about the proper application and the proper interpretation of the Freedom of Information Act, . . . [the] Dreyfus' application was made to me, but it could have been made to any Minister, but the principle for which the Commonwealth argues, was an important principle about the proper scope and reach of the Freedom of Information Act. . . It is absolutely in the public interest that the interpretation of the Freedom of Information Act be properly understood."

Given the AG's reasoning above, it will be an interesting wait to see if the AG goes for a third try at having a tribunal/ court decide this matter in his favour.
 
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