Full Federal Court decision in Brandis v Dreyfus FOI case explained by Alexi Polden … Brandis said it is a matter of principle to explore the “proper application” of the FOI Act … However, his case varied between the tribunal and the court … Full Feds not impressed with AG’s case

This was an appeal of the earlier decision, Mark Dreyfus v Attorney-General (Commonwealth of Australia), where the attorney general was ordered to ordered to process an application by shadow attorney general Mark Dreyfus. 

The appeal turned on whether the Administrative Appeals Tribunal had erred in overturning the attorney general’s “practical refusal” of Dreyfus’ request for access to the AG’s diary under the Freedom of Information Act.

The practical reason for refusal was based in section 24AA(1)(a) of the Act, which allows for a minister to refuse to process an application if it would substantially and unreasonably interfere with the performance of ministerial functions. 

As noted by the court, a refusal at this point of the FOI process means the application did not proceed to consideration of the public interest factors weighing for and against disclosure. 

Neither the tribunal nor the court were concerned with whether the information should have been released, simply with whether the attorney general erred in refusing to deal with the application.  

The practical refusal was given on the basis that the decision-maker and the attorney general’s chief of staff, Paul O’Sullivan, estimated that responding to the application would take between 130 to 526 hours. 

O’Sullivan came to this figure by reasoning that the context behind each diary entry would need to be investigated, and the people referred to in the diary have to be consulted before their names were released. 

Despite public claims by the Brandis that an “important principle” was at stake, the tribunal’s initial decision and the appeal turned on the extent to which this estimate was reasonable. 

A crucial element of both decisions was the fact that the diary extracts showed only minimal information about individuals, containing at most their details and very brief (one or two words) descriptions of the meeting.  

The court (Besanko, Robertson and Griffiths) upheld the tribunal’s decision that in order for those sections to be enlivened: 

“There must be some rational basis which the decision-maker, here the tribunal, can discern which indicates that disclosure of the document would, or could be expected to, unreasonably affect such a person adversely in respect of his or her lawful business or professional affairs.”  

The court found that the fact a party might unreasonably object to disclosure of their personal or business information was not enough to enliven the consultation obligation. 

The full court also noted that no ground of appeal was directed towards the tribunal’s understanding of the attorney general’s initial submissions. 

The tribunal understood those submissions to involve the dual contentions that it would in every case have been necessary to examine documents associated with the diary entry to determine whether consultation would be necessary, and in every such case conduct consultation.

On appeal the Brandis put forward a taxonomy of three classes of documents: 

“In the first class of case a decision-maker could make a determination that a document was not exempt by looking at the entry; in the second class of case the decision-maker could look at the entry and determine that it was an exempt document; and in the third class of case the decision-maker could not determine one way or the other looking at the face of the document whether the document was exempt or not.” 

The court found that this taxonomy “was not one which was put to the Tribunal.” It further noted that (original emphasis): 

“… importantly and indeed fundamentally omits to take into account the perspective of the tribunal which was hearing evidence from the very persons who would be best placed to know the significance of the entries in the diary.” 

As the tribunal was presented with no evidence to suggest that the people in question did not know the significance of the diary entries the court said it would be “be slow to find error in the tribunal’s practical analysis”. 

The court also noted that the tribunal had available to it a series of confidential extracts of the diary, which it did not accept would ordinarily require consultation, though the it accepted there may be another class of more sensitive entries in other parts of the diary.

Accordingly the court not disturb the tribunal’s finding that it was not necessary in every case for the decision-maker to consult with third parties referred to in the diary. The appeal was dismissed. 

If the diaries ever are released they would show whether Brandis was truly too busy, as he claimed, to consult with the community legal sector, whose budgets he slashed in 2014.