FOI, Ombudsman and Right to Reasons

Question 1

Attorney-General v Honourable Mark Dreyfus [2016] FCFAFC 119; 242 FCR 472

Answer 1

The Full Federal Court ruled against the federal AG Senator Brandis in an FOI case for gaining access to Brandis’s “Electronic email diary”. The Court upheld an AAT ruling that rejected Brandis’s claim that the FOI application from Dreyfus would have “interfered with his daily duties and taken hundreds of hours to process.” Did not discharge the burden. of proof for the ‘practical refusal’ exemption in s 24 FOI Act.

Question 2

Jack Waterford and Department of Human Services (Freedom of information) [2019] AICmr 21

Answer 2

The DHS refused the applicant’s request on the basis of practical refusal because it believed the request did not meet the identification requirements of s 15(2)(b) of the FOI Act and that processing the request would unreasonably defer resources (ss 24AA(1)(a)(i) and 24AA(1)(b))

IC was not satisfied that the consultation process’s requirements were fulfilled because it did not give the name of a contact person and how the application could contact this person (as per s 24AB(2)(c). It also did not take reasonable steps to help the application revise his request and remove the practical refusal reasons (s 24AB(3)).

Question 3

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Answer 3

Public interest exception: Treasurer (Costello) claimed that “the release of the documents… will confuse or mislead the public and encourage ill-informed speculation and debate”. 3:2 majority in favour of protecting the information from disclosure.

Question 4

Re Howard and Treasurer of Commonwealth (1985) 7 ALD 626

Answer 4

Davies J enunciated 5 “Howard factors” as a guide on whether the release of a deliberative process document would be contrary to public interest.
OVERTURNED BY THE LEGISLATION’S PURPOSE IN s 3(4) FOI ACT.

Question 5

Langer v Telstra Corporation Ltd (2002) 68 ALD 762

Answer 5

S 24 FOI Act → practical refusal exemption

Question 6

Public Service Board v Osmond

Answer 6

No common law right to reasons in Australia, Parliament would explicitly say if they want a right to reasons.