Exemptions under the Freedom of Information Act 1982
| DOI | 10.1177/0067205X8301400107 |
| Date | 01 March 1983 |
| Author | Peter Bayne |
| Published date | 01 March 1983 |
| Subject Matter | Article |
EXEMPTIONS
UNDER
THE
FREEDOM
OF
INFORMATION
ACf
1982
By
PETER
BAYNE*
INTRODUCTION
The
opening words
of
s
3(
I)
of
the Freedom
of
Information Act 1982 (Cth)
("FOI
Act")
state that the object
of
the Act
is
"to
extend as far
as
possible the
right
of
the Australian community to access to information
in
the possession
of
the Government
of
the Commonwealth". Paragraphs (a) 1 and (b)
of
s
3(
I)
indicate
that
this object
is
to be achieved
in
two main ways, 2
that
stated
in
s
3(l)(b)
being:
[B]y creating a general right
of
access to information
in
documentary form
in
the
possession
of
Ministers, departments and public authorities, limited only by ex-
ceptions and exemptions necessary for the protection
of
essential public interests
and the private and business affairs
of
persons
in
respect
of
whom information
is
collected and held by departments and public authorities.
Section
II
purports to create the general right
of
access.
It
provides:
Subject to this Act, every person has a legally enforceable right to obtain access
in
accordance with this Act
to-
(a) a document
of
an agency,
other
than an exempt document;
or
(b) an official document
of
a Minister,
other
than an exempt document.
Thus, the efficacy
of
those parts
of
the FOI Act3which relate to the general right
of
access will depend very much on the extent
of
those categories
of
documents
which are specified to be exempt from mandatory access. 4
*
LL
B (Hons) (Melb). JD (Chicago); College Fellow
in
Law,
Canberra College
of
Advanced Education.
1 Section
3(
I )(a) states that the general object
will
also
be
achieved
by:
making available
to
the public information about the operations
of
departments and public
authorities and.
in
particular. ensuring that rules and practices affecting members
of
the
public
in
their dealings with departments and public authorities are readily available
to
persons affected
by
those rules and practices.
Part
II
(ss
8-10)
of
the FOI
Act
implements this objective: s 8 requires Ministers
to
publish
information concerning the operations
of
departments and other agencies; s 9 requires that certain
documents. (those which.
in
general terms, contain the "rules and practices" referred
to
in
s
3(
I )(a)).
be
made available for inspection and purchase; and s I 0
is
a convoluted provision
which
to
some extent protects persons
who
are not aware of the documents referred
to
in
s
9.
2 There
is
however a third major aspect
of
the scheme under the FOI
Act.
Part V (ss 48-52)
enables persons who obtain access under the FOI
Act
to
their personal records
to
request that the
records
be
corrected
in
some respects; that the person
may
appeal
to
the Administrative Appeals
Tribunal against a refusal
to
correct the record: and. further. even if the appeal
is
unsuccessful.
to
request that a short statement regarding the person's opinion that the record
is
incorrect
be
at-
tached
to
it
and
to
accompany the record
when
it
is
shown
to
any person. Part V
was
added
to
the
scheme after the
1978
FOI
Bill
was
drafted and this
may
explain the absence
of
any reference
to
it
ins
3(
I).
1 Parts Ill (ss 11-31),
VI
(ss 32-47),
VI
(ss 53-69) and VII (ss 70-90). Thedefinitionsofthe
key
words and phrases
ins
II which are contained
ins
4
in
Part I are also
of
crucial significance;
these matters
will
not
be
analysed here.
'In
no
respect do the exemption provisions prohibit the disclosure of documents. This
is
recognised
by
s
14:
Nothing
in
this
Act
is
intended
to
prevent or discourage Ministers and agencies from
publishing
or
giving access
to
documents (including exempt documents), otherwise than
as
required
by
this Act. where they can properly do so or are required
by
law
to
do
so.
The words "properly
do
so"
were
designed, inter alia.
to
remind public servants and Ministers
of
the criminal penalties for unauthorised disclosure
in
ss
70
and
79
of
the Crimes
Act
1914 (Cth).
68
Federal Law Review
[VOLUME
14
The
Report
of
the Interdepartmental Committee
of
1976, upon which the
1978 FOI Bill was based, stated
that
as a matter
of
policy, '1a] person might be
denied access to a document only on a ground laid down
by
law.
The
categories
of
exempt documents should therefore be defined
....
There should not be a
general discretion to withhold
or
release a document
...
". 5 Sections
33
to 47
of
the FOI Act allow that a wide range
of
documents are exempt from
man-
datory disclosure. Critics
of
the Act have argued that in combination the
exemptions
in
effect confer a discretion on agencies and Ministers to claim
exempt status for virtually any document, and it
is
true that some
of
the
exemptions are phrased in language so opaque that their application will
require qualitative judgments which will leave much to the discretion
of
agen-
cies
and
Ministers. Nevertheless, a close examination
of
the exemptions will
reveal that the Administrative Appeals Tribunal
("AAT")
or
the courts may,
if so minded, curtail substantially their scope. This article will make such an
examination, but before undertaking an analysis
of
particular exemption
provisions, some matters
of
general import must be addressed.
The Public Interest. Some
of
the exemptions incorporate a criterion
of
public
interest, but it
is
critical to observe that
in
only one instance
in
the 1982 Act
does it have an independent operation. Section 36( I) prescribes that a
document
is
exempt if it
"(a)
would disclose [an internal working document];
and (b) would be contrary to the public interest", (italics provided). In this
case, both criteria must be satisfied. In contrast, some other sections com-
mence with a phrase that a document
is
exempt
if
its disclosure "would be con-
trary to the public interest for the reason
that",
and then specify particular
grounds for the exemption (see ss 33, 39, 40
and
44). In these sections, there
is
no independent criterion
of
public interest,6
and
the effect
of
the section
is
that
disclosure
of
a document
is
deemed
to
be contrary to the public interest if it
falls within the grounds
of
exemption.
"Disclosure under this Act". A number
of
the exemption sections operate by
reference to the effects
of
the disclosure
of
a document, and in all but one 7
of
these cases the effect
is
to be gauged by reference
to
"its
disclosure under this
Act"; see ss 33, 36, 37, 39, 40, 41, 43 and 44. This phrase means, it
is
sub-
mitted, that the effect
of
disclosure must be gauged as
if
the document(s)
requested was
to
be disclosed to any person who falls within the phrase "every
person"
in
s
II,
for the right to access under the Act
is
assured to "every per-
son".
Whether
or
not
these words are limited by the words "Australian com-
munity"
in
s 3(1) 8, they do have the effect
that
the particular reason why a
5 Policy
Pro{JOsals
for Freedom
of
!'!formation Legislation -Report
of
Interdepartmental
Committee Pari Paper No
400/1976.
21(5.6).
6 Compare with the clauses 33A. 39, 40
and
44 proposed by Mr Bowen
in
the Committee
debate on the Bill that became the 1982 FOI Act; see H Reps Deb,
23-24
February 1982.
p 469
ff.
See now the Freedom
of
Information Amendment Bill 1983, which seeks
to
insert a
s 33A
and
to amend ss 39
and
40.
1 Compare s 46, which refers to "public disclosure",
and
see the analysis
of
this phrase
below.
8 This
is
the view taken by the Attorney-General's Department
in
Guidelines
to
the Freedom
of
[f!formation Act (FOI Memoranda issued
by
the Attorney-General's Department for the
guidance
of
agencies subject to the Freedom
of
Information Act 1982) ( 1982)
18
("FOI
Guidelines"). Under the United States FOI Act, (5 USC § 552, printed in Policy Proposals for
Freedom
of
Information Legislation, Report
of
Interdepartmental Committee, Pari Paper
No
400/1976,
I 03-1 09), every person in the world may make a FOI Act request; see Neal-
Cooper Grain Company v Kissinger ( 1974) 385 F Supp 769.
1983] Exemptions
Under
the
Freedom
of
Information Act
1982
69
requester wants access to a document will be irrelevant. 9 The effect
of
disclosure must be gauged on the basis that "every
person"
could have access
to the document.
The
interpretation
of
the exemption provisions
is
affected by s 32. Its effect
is
that the scope
of
a provision which stipulates an exemption
is
not to be
limited by the other exemption provisions. In other words, the scope
of
an
exemption
is
to be determined by interpretation
of
its language only, and not
in
addition by reference to what other provisions may
or
may not include
within their range
of
exemptions. Its object seems to be to rebut the maxim ex-
pressio
unius est
exclusio
alterius, and its effect may be to extend the reach
of
some
of
the exemption provisions.
On
the
other
hand, agencies and Ministers,
and the review tribunals and the courts, could rely, on s 3(2). This provides:
It
is
the intention
of
the Parliament
that
the provisions
of
this Act shall be in-
terpreted so as to further the object set
out
in
sub-section
(I)
and that any
discretions conferred by this Act shall be exercised as far as possible so as to
facilitate and promote, promptly and at the lowest reasonable cost, the disclosure
of
information.
This provision would allow a narrow construction
of
the exemption provisions
if the focus
is
on
the opening words
of
s 3( I
)-"to
extend
as
far as possible the
right
of
the Australian community to access to information
"-rather
than on
the recognition
in
s
3(
I )(b) that this right
is
subject to "exceptions and
exemptions".
10
It may be anticipated that at some points the AAT and the courts will in-
terpret particular phrases by having regard to their meaning according to com-
mon law doctrine. Thus, doctrine as to the occasions when the government
or
other persons may claim a privilege
or
an immunity to refuse to disclose
documents
in
judicial proceedings may influence the judicial understanding
of
the scope
of
the exemptions
in
provisions such as ss 33, 34, 35, 36, 37,
39,40
and 44.
For
this reason the decision
of
the High Court in Sankey v
Whitlam
11
may be
of
considerable significance to the scope
of
these exemptions, and
although particular aspects
of
this decision will be taken up
in
the discussion
of
particular exemption sections, a brief general discussion at this point may be
helpful.
'The
Attorney-General's
Department FOI Guidelines. supra n 8,
2.
agree with this position.
Personal interest
is
directly relevant to the operation
of
ss 12(2)(a), 41. and 43. and will be
indirectly relevant to ss 38
and
45. On the general issue. see the Postscript to this article
concerning
Re
ltlthe{ord. (AAT. unreported.
No
A83/32.
26
August 1983).
1
°
Compare
Department(){ the Air Force v Rose ( 1976) 425 US 352. 361. This article will refer
only incidentally to the appeal and review aspects
of
the scheme under the
FOl
Act. Briefly. a
person denied access by reason
of
an exemption provision (or for almost any
other
reason) may
appeal either to the AAT, which may substitute its decision for
that
of
the decision maker (s 58,
FOI Actl. or. if a conclusive certificate has been issued under any
ofss
33. 34, 35
or
36, may seek
review
of
the reasonableness
of
making
of
the certificate by the Document Review Tribunal
("DRT"l.
The
DRT.
however. may only recommend
that
the certificate be revoked. (s 67(3)).
The
Freedom
of
Information Amendment Bill 1983 makes provision for the abolition
of
the
DRT.
and
for the exercise
of
similar powers by panels
of
the AAT comprised
of
one
or
three
presidential members (cis 27 to 30).
11
( 1978) 53 ALJR
II.
See Freedom
of
!!!formation--Report by the Senate Standing
Com-
mittee on
Constitutional
and
Legal Affairs on the Freedom
of
Information Bill 1978 and aspects
of
the Archives Bill 1978, Pari Paper
No
272/1979,
57-67,
255-257.("Freedom (){Information
( 1979)"). See too S Campbell,
"Recent
Cases"
( 1979) 53 ALJ 212;
DC
Pearce,
"Of
Ministers,
Referees
and
Informers-
Evidence Inadmissible in the Public
Interest"
( 1980) 54
AU
127.
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