Express law No. 43

6 September 2006

Freedom of information and review of conclusive certificates

The High Court yesterday ruled on the role of the Administrative
Appeals Tribunal when reviewing a conclusive certificate
issued to exempt internal working documents from a Freedom
of Information (FOI) request. In doing so the Court provided
guidance on what factors the Tribunal should take into
account when determining 'whether there exist reasonable
grounds for the claim that the disclosure of the document
would be contrary to the public interest.' The
case will have significant consequences for agencies
considering the use of conclusive certificates to respond
to future FOI requests.

McKinnon v Secretary, Department of Treasury

High Court of Australia, 6 September 2006 (Gleeson
CJ, Kirby, Hayne, Callinan and Heydon JJ) [2006]
HCA 45

The Freedom of Information Act 1982 (FOI Act) establishes
a regime for people to access government documents. For
some kinds of documents, including 'internal working
documents', ministers and secretaries of agencies
can issue certificates to conclusively exempt documents
from access.

In this case the Treasurer had issued two such certificates
in relation to FOI requests regarding tax bracket creep
and the First Home Owners Scheme.

The Administrative Appeal Tribunal (Tribunal) can review
the issuing of such certificates. Its function on such
reviews is to determine 'whether there exist reasonable
grounds for the claim [led in the conclusive certificate]
that the disclosure of the document would be contrary to
the public interest' (FOI Act subsection 58(5)).
The High Court's judgment examines how the Tribunal
is to establish the existence of 'reasonable grounds'.

Decision of the High Court

The High Court ruled in Treasury's favour, dismissing
the appeal by a majority of 3–2. Callinan and Heydon
JJ delivered a joint judgment for the majority, with Hayne
J delivering the other majority judgment. Gleeson CJ and
Kirby J delivered a joint judgment in dissent.

All five judges clearly held that it was not the role
of the Tribunal under subsection 58(5) to decide whether
the disclosure of a document was contrary to the public
interest. Instead, the focus under the subsection is on
the existence of reasonable grounds supporting the decision
in the certificate.

The judgments differ in their assessment of the considerations
which should be taken into account in determining the existence
of reasonable grounds. The majority judgments reinforce
the existing view that the Tribunal does not weigh up competing
facets of the public interest in determining whether there
are reasonable grounds for reaching the conclusion that
disclosure would be contrary to the public interest. Rather,
in the majority's view, the focus is squarely on the claims
advanced by the Government, and their reasonableness in
light of the evidence, and in particular the documents
in issue.

The dissenting judgment of Gleeson CJ and Kirby J also
confirmed that the Tribunal's role under subsection
58(5) was not to decide whether disclosure was contrary
to the public interest. However, they found that deciding
whether there are reasonable grounds for the non-disclosure
claim involves an evaluation of all the known facts, circumstances
and considerations which may bear rationally upon the issue
in question. In their Honour's dissenting view these
relevant considerations will include different facets of
the public interest.

Implications for clients

The High Court's decision confirms the view that
the Tribunal does not make its own assessment as to whether
disclosure is contrary to the public interest when reviewing
a conclusive certificate. Instead, the Tribunal must focus
its attention on whether reasonable grounds exist for concluding
that disclosure is contrary to the public interest. In
doing so, the Tribunal must consider the relevant facts
and arguments put before it. This means the Tribunal retains
its important role in reviewing conclusive certificates.
However, it seems that one reasonable ground in support
of the claim may be enough if supported by strong evidence,
including the content of the specific documents in issue.

Two justices also provided some guidance as to what grounds
may – or may not – be considered reasonable
in the future. Callinan and Heydon JJ indicated that the
need for confidential communication about controversial
matters of ongoing sensitivity, a lack of context for financial
data, or the inclusion of technical jargon in a document,
may not be reasonable grounds for concluding disclosure
is contrary to the public interest.

Text of the decision is available at: McKinnon
v Secretary, Department of Treasury [2006] HCA
45

Justin Davidson, Lawyer, AGS acted as instructing solicitor
for Treasury in this case. Madeline Campbell was junior
counsel for Treasury and has recently retired from AGS.

For further information please contact:

Justin Davidson
Lawyer
T 02 6253 7240 F 02 6253 7380
justin.davidson@ags.gov.au

Important: The material in Express law is provided
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only, and further analysis on the matter may be prepared
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