Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law
| Date | 01 June 1995 |
| Published date | 01 June 1995 |
| DOI | 10.22145/flr.23.2.4 |
| Subject Matter | Article |
REVISITING
OPEN
GOVERNMENT:
RECENT
DEVELOPMENTS
IN
SHIFTING
THE
BOUNDARIES
OF
GOVERNMENT
SECRECY
UNDER
PUBLIC INTEREST
IMMUNITY
AND
FREEDOM
OF
INFORMATION
LAW
Anne
Cossins*
Australian
law
regulating
the
use
and
disclosure
of
official information is
in
afar from
satisfactory state. It suffers from
both
obscurity
and
untoward
complexity
...
[and
i]t is ill-
suited
both
to
contemporary
conditions of
government
and
to prevailing constitutional
and
democratic
norms
...
Notwithstanding
the
progressive
introduction
of
Freedom
of
Information
regimes
in
Australia,
we
have
by
no
means
reached -
or
sought
to reach -
the
position
where
...
the
free use
and
disclosure
of
information is
the
norm
and
secrecy
the
exception
...
While
the
balance is
now
changing,
and
desirably so, secrecy
endures
as
the
primary
obligation
and
openness
the
exception
...
1
INTRODUCTION
This article examines
both
historical
and
more
recent developments
in
shifting
the
boundaries
of
government
secrecy
under
two
related regimes for disclosing
government
information:
the
doctrine of public interest
immunity
(PII)
and
freedom
of
information
(FOI) legislation.
In
the
area of discovery of
government
documents
in
civil
or
criminal proceedings, the doctrine of PII
prevents
the
disclosure of evidence
on
the
grounds
that
there is apublic interest
in
ensuring
that
no
prejudice
or
injury shall
be
done
"to
the
nation
or
the
public service
by
the
disclosure of certain
documents
or
information".2 Even
though
the doctrine operates to
suppress
the
disclosure of certain
categories of
documents
in
the public interest, the doctrine constitutes
the
common
law's
only consideration of "the question of public rights of access" to
government-held
information.3
1
2
3
BSc(Hons)
LLB
(UNSW), Lecturer, Faculty
of
Law, University of
New
South
Wales. I
would
like to
thank
Professor
Mark
Aronson
and
Mr
Keven Booker of
the
University
of
New
South
Wales,
Mr
Peter Bayne
of
the
Australian
National University
and
Mr
Bill Blick
of
the
Department
of
Prime
Minister
and
Cabinet for their comments
on
a
draft
of this
article.
PFinn,
Official
Information
(Integrity
in
Government
Project:
Interim
Report
1)
(1991)
at
85.
S B McNicol,
Law
of
Privilege
(1992)
at
375.
In
the
case
of
high-level
information
the
rationale for non-disclosure is
grounded
in
preserving
national security
and
protecting
the
secrecy
of
high-level
government
decision-making.
In
the
case
of
lower-level
information
the
rationale is
founded
on
"the
need
to
promote
candour
in
communication
and
to
protect
the
public
service
from
captious
and
ill-informed public
or
political criticism":
ibid
at
375.
PFinn,
above
n 1
at
162-163.
1995 Revisiting
Open
Government 227
In
a
report
on
"the
manner
in
which government
manages
... information
in
its
hands"
and
maintains official secrecy, Finn described three
phases
of
management
concerning the disclosure of
government
information: "public interest paternalism",
"governmental authoritarianism"
and
"liberal-democracy", each of
which
has
predominated
for a
period
and
each reflecting "rather different assumptions
about
the
nature
and
proper
working of ... [the Australian] constitutional system".4
In
considering
how
the doctrine of PII fits into Finn's analysis,
it
is clear
that
as a
mechanism
for the protection of government secrecy, it
has
been
applied
in
Anglo-
Australian
law
in
a
way
that
is sympathetic
with
the principles typifying
governmental
authoritarianism. It is this
management
technique which Finn considers
has
been
the
most
influential
phase
of information
management
in
Australia:
[Governmental authoritarianism]
has
found
its strongest expression
in
...
public
service
secrecy regimes ...
and
in
general official secrecy offences ... [where]
neither
official
secrecy
nor
the
public availability
of
information
was
made
to
depend
upon
the
"public
interest". It
allowed
government
to elevate its interests
over
all others; to
regulate
at
its
discretion
the
public dissemination
of
information;
and,
formally
at
least, to coerce
subservience from its officials
through
stringent
official secrecy regimes.5
Nonetheless, the development of apublic interest balancing test
under
the doctrine
of
PII6
and
the
movement
away
from conferring absolute
immunity
from disclosure
on
classes of
documents
7are
both
features of the
phase
of liberal democracy
which
is also
typified
by
FOI legislation
and
the philosophy of
open
government. Finn considers
that
this
phase
is
guided
by
the following principles:
•"the interests of government ...
do
not
exhaust the public interest";8
•"the public availability of information is
an
important
value
to
be
promoted
in
ademocratic society" especially
where
that
availability allows the public to
review
and
criticise government decision-making;9
•"persons
and
bodies
who
supply
confidential information to
government
about
their
own
affairs
have
alegitimate interest
in
having
the ... confidentiality of
that
information respected (the liberal theme)".10
In
other
words,
in
order
"to safeguard basic constitutional
and
democratic values
in
our
society ... [this phase]
has
!llade the 'public interest' its touchstone".11
When
Commonwealth
freedom of information legislation came into
operation
in
Australia
on
1December 1982
by
way
of the Freedom of Information Act 1982 (Cth)12,
it challenged, for the first time
in
acountry
with
aWestminster-style government, the
boundaries
of
government
secrecy.13 Its enactment,
and
other
administrative
law
,
4
5
6
7
8
9
10
11
12
13
Ibid
at
93.
Ibid.
See Conway vRimmer [1968] AC 910.
See Sankey vWhitlam (1978) 142 CLR 1;
Burmah
Oil
Co
Ltd
v
Bank
of
England
[1980] AC 1090;
Air
Canada
v
Secretary
of
State
for
Trade
[1983] AC 394.
Glasgow
Corporation
v
Central
Land
Board
[1956] SC (HL) 1
at
18-19
per
Lord
Radcliffe.
PFinn,
above
n 1
at
94.
Ibid.
Ibid
at
162.
Hereinafter
referred to as the FOI Act.
Attomey-General's
Department,
Freedom
ofInformation Annual
Report
1982-1983 (1983)
at
1.
228
Federal
Law
Review
Volume
23
reforms14
are
manifestations of
the
transition, identified
by
Finn, of
Australian
administrative
law
from governmental authoritarianism to liberal-democracy,
indicating that:
The
power
of
government
to act
in
the
manner
of
its
own
choosing
in
the
management
of
official
information
is
being
subordinated
progressively to
wider
considerations
of
the
public interest.
1S
In
line
with
this transition, the introduction of
the
Commonwealth
FOI Act
saw
the
creation of alegally enforceable
statutory
right of access to
documents
held
by
certain
Commonwealth
Government
agencies
and
Ministers. This
right
was
the
means
by
which
the
new
public interest
in
open
government
was
to
be
enforced for
the
purposes
of: increasing
government
accountability
and
public participation
in
the
decision-
making
processes of government;
improving
the quality of decision-making
by
government; informing
people
of
how
government
makes decisions
that
affect
them
and
giving
people
access to information
about
them
that
is
held
by
government.
16
As
such, a
new
ground
of public interest
unknown
to the
common
law
was
created: a
public interest enabling
every
person
in Australia to enforce
her/his
statutory
right
of
access to
government
documents
for the
purposes
of achieving
open
government.
Prior
to
the
introduction
of the FOI Act,
the
High
Court
had
also challenged
the
boundaries
of
government
secrecy
under
the doctrine of PII
in
the
landmark
decision
of Sankey vWhitlam.17 This case reformulated the scope of the public interest
on
which
PII
was
based
in
Australia,
with
the
High
Court
holding
that
the public interest
in
preserving
the
integrity of
the
nation
was
subject to
and
therefore qualified
by
the
competing
public interest
in
the
due
administration of justice; its
ruling
resulted
in
the
disclosure of a
number
of
documents
relating to the controversial "loans affair" of
the
Whitlam
Government.
Since
the
introduction
of the
Commonwealth
FOI Act, the
trend
has
been
towards
increasing
open
government
in Australia
through
the
enactment
of FOI legislation
in
all States
and
Territories except the
Northern
Territory.18
However,
despite
the
trumpeted
arrival of
open
government
through
the
enactment
of the
Commonwealth
FOI Act,
it
is clear
that
the
principles
underpinning
it are
not
always reflected
in
its
interpretation.
In
contrast, developments
under
PII indicate
that
Anglo-Australian
law
has,
in
general,
moved
towards
a
more
critical analysis of the
grounds
claimed for
the
application of
the
doctrine
in
order
to
suppress
government
information -particularly
information
created
at
the
highest levels of government,
such
as Cabinet deliberations,
submissions to Cabinet, communications
between
Ministers
and
between
Ministers
and
their advisers.
In
stark
contrast, too, is a
more
recent manifestation of
the
phase
of
liberal
democracy
in
the
form of rulings
by
amajority of the
High
Court
that
under
the
14
IS
16
17
18
The
Commonwealth
FOI Act completed a
package
of administrative
law
reforms
which
took
the
form
of
the
Administrative Appeals Tribunal Act 1975 (Cth);
the
Ombudsman
Act
1976 (Cth);
and
the
Administrative Decisions (Judicial Review) Act 1977 (Cth).
PFinn,
above
n 1
at
94
(footnotes omitted).
Attorney-General's
Department,
above n13
at
xi. See also HRep Deb 1981, Vol 124
at
39-
11
44.
(1978) 142 CLR
1.
See
Freedom
of
Information Act 1982 (Vic);
Freedom
of Information Act 1989 (NSW);
Freedom
of
Information
Act 1991 (SA);
Freedom
of
Information Act 1992 (WA);
Freedom
of
Information
Act 1992 (Qld);
Freedom
of Information Act 1991 (Tas);
and
Freedom
of
Information
Act (ACT) 1989.
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