Dreyfus and Secretary Attorney-General’s Department (Freedom of information) - [2015] AATA 962

Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 (14 December 2015)

Division

General Division

File Number(s)

2014/4437

Re

Mark Dreyfus QC MP

APPLICANT

And

Secretary Attorney-General’s Department

RESPONDENT

Decision

Tribunal
Justice Bennett

Date 14 December 2015

Place Sydney
THE TRIBUNAL ORDERS THAT:
1.These reasons are to be kept confidential to the respondent for 48 hours.

2.Any proposed redactions to these reasons be provided to chambers within 48 hours.

3.The proposed redacted 2013 Incoming Government Brief, prepared by the Attorney-General’s Department for the Attorney-General in the Commonwealth Government formed following the September 2013 Federal election, be prepared by the respondent and provided to chambers within 7 days.

4.The parties provide proposed orders, including orders as to costs, to chambers within 7 days.

5.The parties file and serve any further submissions of no more than 2 pages within 7 days.

......[sgd]................................
Justice Bennett
Catchwords
FREEDOM OF INFORMATION – Incoming government brief prepared for party that formed government – whether the document contains deliberative matter for a deliberative process and is conditionally exempt – whether the document could reasonably be expected to have a substantial adverse effect on the operations of an agency – whether it is contrary to the public interest to allow access to conditionally exempt material 26 months after the 2013 Federal election – whether it is reasonably practicable to prepare an edited copy of the document
Legislation
Administrative Appeal Act 1975 (Cth) ss 29(1), 43(6)

Freedom of Information Act 1982 (Cth) ss 3, 8A, 11, 11A, 11B, 22, 31B(b), 47C, 47E, 61(1), 93A(2)
Public Service Act 1999 (Cth) ss 10(5), 13(6)

Right to Information Act 2009 (Qld)
Cases
Crowe and Department of the Treasury [2013] AICmr 69

Crowe v Department of Prime Minister and Cabinet [2014] AICmr 72
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
Johansen v City Mutual Life Assurance Society Ltd (1904) 2 CLR 186
McIntosh v Department of Premier and Cabinet [2009] VCAT 1528
Pratt Consolidated Holdings Pty Limited v Commissioner of Taxation [2011] AATA 907
Re Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re John Edward O’Brien Waterford and the Treasurer of the Commonwealth of Australia [1984] AATA 518
Re Waterford v Department of the Treasury (No 2) (1984) 5 ALD 588
Rovere and Secretary, Department and Education and Training [2015] AATA 462
Sankey v Whitlam (1978) 142 CLR 1
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Swiss Aluminium Australia Limited v The Commissioner of Taxation for the Commonwealth of Australia and Ors (1987) 163 CLR 421

REASONS FOR DECISION

The Honourable Mark Dreyfus QC MP (Mr Dreyfus) seeks access to the 2013 Incoming Government Brief (the IGB) prepared by the Attorney-General’s Department (the Department) for the Attorney-General in the Commonwealth Government formed following the September 2013 Federal election. Mr Dreyfus made a request under the Freedom of Information Act 1982 (Cth) (the Act) to the Department, on 20 September 2013, for access to the IGB. The Department concluded (in the original decision) that the IGB was conditionally exempt under ss 47C and 47E and to give access would be contrary to the public interest and this was affirmed on internal review (the internal review decision). Mr Dreyfus applied to the Office of the Australian Information Commissioner for a review of the internal review decision. The Australian Information Commissioner (the Commissioner) varied the internal review decision and granted access to some parts of the IGB but upheld the denial of access to the remainder (the Commissioner’s decision).
This is an application by Mr Dreyfus for a review of the Commissioner’s decision under s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The parties agree that the relevant date for consideration by the Tribunal is the date of decision, which is some 16 months after the decision by the Commissioner (AAT Act s 43(6)).
Description of the igb
In Mr Dreyfus’ request under the Act to the Department for access to documents, he sought access to:
the incoming government briefs prepared by the Attorney-General’s Department. This request is intended to cover:
·All briefs (and related attachments to briefs and any other related materials) prepared in the event of a returned Labor Government (referred to as ‘the Red Book’);
·All briefs (and related attachments to briefs and any other related materials) prepared in the event of a newly elected Coalition Government (referred to as ‘the Blue Book’);
·Any other materials, including any briefs providing an overview of the Attorney-General’s Portfolio and the Related Support Services (referred to as ‘the administration brief’).
The Department notified Mr Dreyfus that only one IGB had been prepared, being an IGB prepared for the Attorney-General in the incoming Government formed following the September 2013 Federal election. The IGB comprises two parts: the “Information Brief” and the “Strategic Brief”. The parties did not dispute the Commissioner’s characterisation of the contents of the IGB (at [15] – [16] of the Commissioner’s decision), as follows:
15. The IGB comprises two parts. The first part is entitled ‘Information Brief’. It contains (in addition to a Table of Contents and heading pages) information about:
·the Department’s structure, functions, senior personnel, programs, budget, activities, key stakeholders, international role and support for the Minister
·selected responsibilities of the Attorney-General, relating to crisis and emergency management, significant litigation involving the government, appointments to senior portfolio positions that fall due up to September 2014 and upcoming meetings
·the role, personnel and key issues facing each of 18 statutory and non-statutory bodies that are within the Attorney-General’s portfolio (in a section entitled ‘Portfolio Agency Summaries’); and
·government and non-government bodies and office holders described as ‘Key Stakeholders’ in relation to the areas of Departmental responsibility, including the telephone contact numbers and email addresses of many office holders.
16. The second part of the Brief is entitled ‘Strategic Brief’. It contains (in addition to a Table of Contents and heading pages):
·a two page covering letter from the Secretary of the Department to the Attorney-General
·information on the Attorney-General’s role and responsibilities, the Department’s support to the Minister, key challenges and priorities in the portfolio and internal restructuring
·the election policy commitments of the Attorney-General and the Government, and the Department’s commentary on issues to be considered and steps to be taken in implementing the policy commitments
·options for structural re-alignment in the portfolio
·a discussion of particular topics and themes in the portfolio, including strategic directions, budget implications and risks and sensitivities; and
·a discussion of urgent and priority matters in the portfolio.
Overview of the commissioner’s decision
The Commissioner varied the internal review decision to refuse access to the whole of the IGB. The Commissioner granted Mr Dreyfus access to the Information Brief, except for pages 33 – 36, 45 – 49, 83 – 105 and the “Key Issues” section of each of the “Portfolio Agency Summaries” in pages 53 – 81. The Commissioner affirmed the internal review decision to refuse access to Mr Dreyfus to the remainder of the IGB, on the basis that the material is conditionally exempt under s 47C of the Act, and determined that to give access would be contrary to the public interest.
In summary, the Commissioner’s main findings concerning the IGB were:
·Much of the IGB contains deliberative matter that is related to the deliberative process, which is conditionally exempt under s 47C of the Act.
·It would be contrary to the public interest, under s 11A(5) of the Act, to release that deliberative matter, having regard to the special purpose of an IGB to provide frank and helpful advice to a new Minister ‘at a critical juncture in the system of responsible parliamentary government’.
·Some of the material in the IGB is neither deliberative matter nor related to a deliberative process, as it related to the role, functions, personnel and resources of the Department. Accordingly, it is not conditionally exempt under s 47C of the Act.
·Section 47E(d) of the Act does not provide any exemption coverage in this case greater than that provided by s 47C.
·Even though some content in the IGB could separately be released without consequence, it is not reasonably practicable to prepare an edited copy of such a lengthy document that covers an extensive range of topics. Accordingly, s 22 of the Act did not apply and access was refused to that material.
General considerations
The Commissioner was guided in his decision by his own reasoning in Crowe and Department of the Treasury [2013] AICmr 69 (Crowe). The Commissioner noted two important differences between Crowe and this matter:
·Crowe concerned a decision not to release an IGB prepared for a party that did not form government, whereas the current matter concerns an IGB prepared for a party that did form government. In Crowe, the brief had never been provided to the party for whom it was prepared. The Commissioner had determined in that:
to release it publicly would be unfair to that party, contrary to the conventions of parliamentary government and could complicate relations between the department that prepared the brief and the Ministers who have formed government.
·The decision under review in Crowe related to only a few pages of an IGB, whereas the current matter relates to the entire IGB. Accordingly, the application of an exemption provision should be considered by looking first at the contents of the document under review, rather than at the entire document as though it had a single or dominant character.
The Legislative framework
The objects of the Act, generally, are to give the Australian community access to information held by the Government of the Commonwealth. This is subject to certain exemptions. The parties agree on the approach to be taken in applying the legislative scheme.
The parties agree that the IGB is not exempt under Pt IV Div 2 of the Act, which relates to exempt documents including documents affecting national security, Cabinet documents, documents affecting enforcement of law and public safety, documents subject to legal professional privilege, documents containing material obtained in confidence, Parliamentary Budget Office documents, documents whose disclosure would be in contempt of Parliament or court, documents disclosing trade secrets and electoral rolls and related documents.
Mr Dreyfus provided a useful legislative flow chart:
is the brief conditionally exempt?
The first issue is whether the IGB is conditionally exempt under Pt IV Div 3 of the Act, which set out the public interest conditional exemptions. Sections 47C and 47E of the Act, in Pt IV Div 3, are the conditional exemption provisions in issue in the proceedings.
Legislation
Section 47C of the Act relevantly provides:
47C Public interest conditional exemptions—deliberative processes
General rule
(1)       A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a)       an agency; or
(b)       a Minister; or
(c)       the Government of the Commonwealth; or
(d)       the Government of Norfolk Island.
Exceptions
(2)       Deliberative matter does not include either of the following:
(a)       operational information (see section 8A);
(b)       purely factual material.
Note:   An agency must publish its operational information (see section 8).
Note:   Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Neither “deliberative matter” nor “purely factual material” are defined.
“Operational information” is defined in s 8A of the Act:
8A Information to be published—what is operational information?
(1) An agency’s operational information is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).
(2) An agency’s operational information does not include information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.
Section 47E of the Act provides:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a)prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b)prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c)have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
If the IGB is not conditionally exempt, Mr Dreyfus would have a right of access under s 11 of the Act:
(1)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.
(2)       Subject to this Act, a person’s right of access is not affected by:
(a)       any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
If the IGB is conditionally exempt, regard must be had to s 11A of the Act. It can be seen that the notes to each of s 47C and s 47E refer to s 11A, which is set out at [65].
The Commissioner’s decision
The Commissioner analysed the undefined terms “deliberative matter”, “deliberative process” and “purely factual material”. Section 93A(2) of the Act provides that ‘regard must be had to any guidelines issued by [the Commissioner] under this section’. Under s 93A of the Act, the Commissioner has issued ‘Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982’ (the Guidelines). Drawing from the Guidelines and his decision in Crowe, the Commissioner set out at [38] his description of the distinction between ‘deliberative matter’, ‘deliberative process’ and ‘purely factual material’ and concluded relevantly:
·“Deliberative matter” is a shorthand term for ‘opinion, advice and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document.
·“Deliberative process” generally refers to the process of ‘weighing up or evaluat[ing]... competing arguments or considerations’ or to ‘thinking processes – the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’. That is, the deliberative matter recorded in the document must be related to a process that is being undertaken within government to consider whether and how to make or implement a decision, revise or prepare a policy, administer or review a program, or some similar activity. Opinions contained in a document that has not been prepared for a deliberative process are not exempt under s 47C of the Act.
·The deliberative process may be undertaken either by the agency that prepared the document, or by another agency, or by a Minister for whom the document is prepared.
·“Purely factual material” does not extend to factual material that is an integral part of the deliberative content and purpose of a document, or is embedded in or intertwined with the deliberative content such that it is impractical to excise it.
·Incoming ministers will often need to rely heavily on the advice in an IGB in the early days of their ministry, so the advice needs to be absolutely frank about the issues.
·The understanding that the content of the IGB is confidential is important in the ongoing relationship of trust between the Minister and the Department.
The characterisation of these terms are set out in more detail in the Guidelines, relevantly:
Deliberative Processes
6.56     A document may be conditionally exempt if it includes deliberative matter. Deliberative matter is content that is in the nature of, or relating to either:
an opinion, advice or recommendation that has been obtained, prepared or recorded
a consultation or deliberation that has taken place
in the course of, or for the purposes of, a deliberative process of the agency or minister (s 47C(1)).
…
6.61     This conditional exemption has a potentially broad reach. The Information Commissioner expects, however, that agencies will claim this conditional exemption only in clearly applicable circumstances. Not every document generated or held by a policy area of an agency is ‘deliberative’ in the sense used in this provision, even if it appears to deal with the development or implementation of a policy. A decision maker should ensure that the content of a document strictly conforms with the criteria for identifying ‘deliberative matter’ before claiming this conditional exemption (see paragraph 6.56 above and paragraphs 6.66–6.69 below).
Deliberative process
6.62     A deliberative process involves the exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
6.63     The deliberative process must relate to the functions of an agency, minister or the government of the Commonwealth. The functions of an agency are usually found in the Administrative Arrangements Orders or the instrument or Act that established the agency. For the purposes of the FOI Act, the functions include both policy making and the processes undertaken in administering or implementing a policy. The functions also extend to the development of policies in respect of matters that arise in the course of administering a program. The non-policy decision making processes required when carrying out agency, ministerial or governmental functions, such as code of conduct investigations, may also be deliberative processes.
6.64     A deliberative process may include the recording or exchange of:
·opinions
·advice
·recommendations
·a collection of facts or opinions, including the pattern of facts or opinions considered
·interim decisions or deliberations.
6.65     An opinion or recommendation does not need to be prepared for the sole purpose of a deliberative process.
Assessing deliberative matter
...
6.68     Material that is not deliberative matter, where not already excluded as operational information, purely factual material or a scientific report, would include:
content that is merely descriptive
incidental administrative content
procedural or day to day content
the decision or conclusion reached at the end of the deliberative process
matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process.
Purely factual material
…
Purely factual material
6.72     The exclusion of purely factual material under s 47C(2)(b) is intended to allow disclosure of material used by the person who made the conclusion or decision following the deliberative process. A conclusion involving opinion or judgement is not purely factual material. For example, an assertion by the author of a document that something is a fact may be an opinion and not conclusive that the thing is a fact.
6.73 Where a decision maker finds it difficult to separate the purely factual material from the deliberative matter, both the elements may be exempt. If the two elements can be separated, the decision maker should consider giving the applicant a copy with deletions under s 22 to provide access to the purely factual material.

The Commissioner considered how these principles apply to the Strategic Brief. He concluded that:
·The Strategic Brief is intended to be a key document in the deliberative processes of the Department and the Government, as it contains the Department’s analysis, views and advice on portfolio issues that may arise for consideration by the Attorney-General and the Government.
·There is a large amount of factual material in the Strategic Brief referring to existing programs, policy announcements, legislation, budgetary allocations, staffing and public events. This factual material is integral to the deliberative contents of the Strategic Brief, which would be robbed of its essential meaning without incorporation of this factual material. It would be impractical to attempt to separate the factual material from the deliberative content, as the two are intertwined.
·There are three portions of the Strategic Brief that may not as readily qualify as deliberative matter:
·12 cover and heading pages that introduce the different segments of the Strategic Brief;
·the Table of Contents that contains over 100 entries; and
·a two page covering letter from the Secretary of the Department to the Attorney-General.
·The Table of Contents is conditionally exempt, under s 47C of the Act, as it provides an introduction to the structure and themes of the Strategic Brief. That is, the Table of Contents is integrated with the deliberative content.
·Half of the covering letter contains deliberative matter by distilling the key points in the remainder of the Strategic Brief.
The Commissioner also considered how the principles apply to the Information Brief. He concluded that:
·The Information Brief was prepared for a deliberative purpose ‘to advise the incoming Minister on portfolio issues and to select issues and topics that may engage the Minister’s attention in administering the portfolio’.
·A large amount of the content of the Information Brief is background information only, such as the Departmental organisation chart and overview, Administrative Arrangements Order and budgetary information. That is, much of the material is essentially factual and obtainable elsewhere on agency websites.
·The material which draws from public sources and describes the role, structure, functions, personnel and resources of the Department is not deliberative matter, even though it was included in a document that was explicitly deliberative in purpose.
·Only four sections of the Information Brief contain deliberative matter, which each come within the central theme of discerning advice provided by the Department to the Attorney-General on key issues, organisations and personnel.
·Access should be granted to the material that was purely factual material and not deliberative matter.
The Commissioner determined that the Department did not cogently explain why the release of non-deliberative and purely factual material in the IGB could be expected to have a substantial adverse effect on its operations. Accordingly, the Commissioner concluded that s 47E of the Act did not provide any exemption coverage greater than that provided by s 47C.
The Commissioner did not have difficulty in separating the non-deliberative and deliberative material of the Information Brief, or regard the material as being interwoven and impracticable to separate. He considered that four sections of the Information Brief contained deliberative matter and are conditionally exempt under s 47C of the Act, namely:
·the ‘Significant Litigation’ section (pages 33-36): this section lists significant litigation involving the Commonwealth, with a brief description of legal issues and some comments on the consequences that may flow from particular outcomes …
·the ‘Portfolio Budget and Staffing’ section (pages 45-49): this section highlights the impact that budget and savings measures will have on the portfolio, and some of the challenges this presents
·the ‘Key Issues’ segment of each of the Portfolio Agency Summaries (pages 53-81): each segment explicitly or implicitly provides advice and guidance to the Minister on issues which the Department has selected as key issues for the Minister’s attention, and
·the ‘Key Stakeholders’ section (pages 83-105): this section identifies government and non-government organisations and individuals who the Department advises are key stakeholders in subject areas of special portfolio interest.
Mr Dreyfus’ submissions
Mr Dreyfus contends that the IGB, in its entirety, is not exempt from disclosure under s 47C or s 47E(d) of the Act. He submits that the correct approach involves an analysis of whether the documents contained within individual content categories are captured by the Act and that the Secretary has the onus to establish that s 47E(d) of the Act is engaged. Mr Dreyfus points out that s 47E(d) is a conditional exemption, so that even though it provides a necessary condition to exempt the document, it is not sufficient if the Tribunal finds that the content fails the public interest exemption under s 11A of the Act.
Mr Dreyfus submits that the IGB should be considered in terms of the following content categories:
·Documents within the Information Brief that the Commissioner ruled did not contain deliberative material (Accessible Information Brief).
·Documents within the Information Brief that the Commissioner ruled did contain deliberative material (Remaining Information Brief).
·Documents within the Strategic Brief that the Commissioner ruled did not contain deliberative material (Accessible Strategic Brief).
·Documents within the Strategic Brief that the Commissioner ruled either contained deliberative material or non-deliberative material essential to the deliberative material (Remaining Strategic Brief).
Mr Dreyfus submits that the proper approach under s 47C of the Act involves accepting the content categories approach and then answering the following questions:
(1)Does s 47C(2) of the Act operate to exclude the application of the section to the individual content category?
(2)If it does not, do the documents within the individual content category contain deliberative material prepared for a deliberative process?
Mr Dreyfus points out that he is at an obvious disadvantage, as he has not seen the documents comprising the IGB. Accordingly, he has no basis for contending that the documents in the Remaining Strategic Brief and Remaining Information Brief do not include deliberative matter. However, he relies on the findings of the Commissioner that the Accessible Information Brief and Accessible Strategic Brief do not contain deliberative matter and should not be conditionally exempt.
Accessible Information Brief and Accessible Strategic Brief
With respect to the Accessible Information Brief and Accessible Strategic Brief, Mr Dreyfus adopts the Commissioner’s finding that ‘the Department has not cogently explained why release of non-deliberative and purely factual material in the IGB could be expected to have a substantial adverse effect on its operations’. Accordingly, Mr Dreyfus submits, s 47E(d) does not operate to render the documents contained within these categories conditionally exempt.
Remaining Information Brief and Remaining Strategic Brief
With respect to the documents within these categories, Mr Dreyfus says that:
·the Department is required to provide frank and honest advice to its Minister and this requirement will not change if the documents in the IGB are accessible; and
·the operation of briefing an incoming Minister should be viewed in light of a culture of disclosures in the past; or, in the alternative
·future IGB’s should be prepared with the expectation that they will be accessed.
The Secretary’s submissions
The Secretary’s submissions are directed to the IGB as a whole, not to specific content categories.
Conditional exemption under s 47C of the Act
The Secretary points to the terms deliberative matter and purely factual material in s 47C of the Act. The Secretary submits that the use of the word “purely” indicates that the intent of the provision is to adopt a strict approach as to what information should be considered excluded factual material. That is, he says, purely factual material must be factual in unambiguous terms (Re John Edward O’Brien Waterford and the Treasurer of the Commonwealth of Australia [1984] AATA 518).
The Secretary contends that the entirety of the IGB comprises deliberative matter and is therefore conditionally exempt under s 47C of the Act. The Secretary acknowledges that the IGB does contain some material which could be characterised as factual. However, he contends that all such material is so closely connected with the opinions or advice presented in the IGB that it cannot be properly described as “purely” factual. Disclosure of the factual material as a whole, the Secretary contends, would necessarily reveal the way in which the factual material was brought together for the purposes of the IGB, which alone would reveal an element of the deliberative process undertaken by the Department in preparing the IGB and would provide a direct insight into the scope and nature of the advice. This in turn could allow the reader to reconstruct a picture of the advice provided. That is, the Secretary says, the factual material is so intertwined with, and integral to, the deliberative content that the factual material could not reasonably be disclosed without revealing aspects of the deliberative content.
The Secretary submits that the Tribunal must determine the application on its merits informed, but not bound, by the Guidelines and that the Tribunal should apply the Guidelines unless there are cogent reasons to the contrary (Re Francis and Department of Defence (2012) 59 AAR 35 at [18]).
Conditional exemption under s 47E(d) of the Act
The Secretary submits that the entire IGB is exempt under s 47E(d) of the Act, on the basis that disclosure of this material would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient operations of the Department, specifically the proper and efficient preparation of IGBs in the future. The Secretary says that disclosure of the IGB would adversely affect the capacity of the Department to perform its function of providing a comprehensive briefing to a new Attorney-General because disclosure would undermine the integrity of the briefing process.
The Secretary contends that the IGB was prepared by the Department on the understanding that the contents of the IGB would only be shared with a highly select audience, comprising the Attorney-General and Minister for Justice and certain very senior public servants within the portfolio. That is, he says, this understanding as to the limited nature of the audience enabled and encouraged the Department to provide advice that was comprehensive, frank and direct in nature. The Secretary contends that disclosing the IGB would cause the Department to adopt a different understanding as to the nature of its audience when drafting the contents of an IGB in the future and that officers of the Department may draft IGBs with a public audience in mind. It follows, the Secretary submits, that such a change in perspective on the part of Departmental officers is likely to influence the content of an IGB adversely and to undermine the Department’s existing process in preparing IGBs, which is focused on providing comprehensive and frank advice.
Accordingly, the Secretary submits that the IGB is conditionally exempt pursuant to s 47E(d) of the Act, as its disclosure would have a substantial effect on the proper and efficient conduct of the “operations” of the Department.
The evidence
The Secretary has adduced evidence in support of these submissions from Mr Anthony John Sheehan, Deputy Secretary, Strategic Policy and Coordination Group within the Department and Chief Operating Officer for the Department. He has held those positions since March 2014. He approved content for inclusion in an IGB prior to the Federal election in 2010. He has been a Commonwealth official for 25 years.
Mr Sheehan explains that IGBs typically contain classified and highly sensitive information, as well as opinions, options and advice. They have a very limited distribution within agencies. Mr Sheehan describes the importance of IGBs in a Westminster system, in summary and relevantly:
·Once the result of an election is known, the Minister takes almost immediate responsibility for his or her portfolios.
·A department’s contribution to continuity of government is particularly important when there is a change of government or a change of Minister.
·Trust and confidence by the Minister in the agency is essential. An IGB is critical in developing the necessary relationship and must be comprehensive and considered in providing analysis and understanding of the newly elected government’s objectives, and advice on how these objectives might best be implemented, or giving candid advice about obstacles inhibiting those proposals.
·An IGB performs an essential and time critical task of comprehensively informing the incoming government, through the Minister, of the issues facing the portfolio and the key questions of the day, as well providing a foundation for forming views about the strategic direction of the portfolio’s responsibilities. It is in this way that the department or agency assists the Minister to transition quickly into the role and ensures that public administration continues smoothly after a change of government or Minister.
·Incoming Ministers will often need to rely heavily on the advice in an IGB in the early days of their ministry, so the advice needs to be absolutely frank about the issues.
·The understanding that the content of an IGB is confidential is important in the ongoing relationship of trust between the Minister and the department.
Further, Mr Sheehan explained that the Department decided that the IGB would have a greater focus than previously on strategic advice by foreshadowing the potential strategic options for the portfolio and specific opportunities and challenges that it faced.
Mr Sheehan identified a number of considerations against which, in his view, disclosure must be judged:
·The advice provided by the Department is only one part of the overall picture concerning areas within the Minister’s responsibility for matters such as law reform, national security and law enforcement.
·The IGB provides an overview and not the totality of the Department’s advice.
·The IGB presents only one dimension of government decision-making, which results from a confidential collective Cabinet process.
·The IGB was created prior to the formation of the new Government and based heavily on publicly available information concerning announced policies and proposals and without discussion with the Minister about those proposals.
·If there is disclosure, a likely consequence is that future IGBs will be less comprehensive in the level and detail of advice than in the IGB, which was created on the premise of confidentiality between the Attorney-General, the Minister for Justice and the Department. This would affect the proper transfer of responsibility without an early and full briefing.
·Disclosure of highly sensitive material could adversely impact on the operations of the Government in the policy and program areas detailed in the IGB, for example Australia’s relationships with foreign governments and its capacity to respond to threats to national security.
·Disclosure would impact on the future processes for the preparation and content of IGBs. It would be likely that a conservative and cautious approach would be taken to the preparation of material for inclusion in future IGBs. This would frustrate the achievement of the objective of providing the Minister with the greatest, most immediate assistance to commence administering his or her responsibilities as efficiently as possible. This would be to the detriment of the capacity of an IGB to fulfil its intended function.
·Drawing the Department and the Minister into a public debate about the wisdom, benefits risks and options connected with the Government’s policies at the time of the 2013 Federal election risk public dispute and controversy between the Government, the Department and the Attorney-General, making it more difficult for the Department properly to advise and assist its Ministers. Such public debate and discussion can have the consequence of undermining the working relationships between various parts of the Executive where a good working relationship is necessary for effective decision-making and program implementation.
Mr Sheehan expressed the view that the better approach is that the entire IGB not be released. He accepted that he prepares an IGB with an awareness that it could be read by someone other than the Minister and that, at the time of preparing the IGB, there was a real possibility that there would be a Freedom of Information (FOI) request in relation to it and that the material could be released. He accepted that the potential of a broader audience did not have a chilling effect on the frank and fearless advice he provided in the IGB. However, he maintained that it is possible that material being released could have an impact on future preparation of IGBs. Mr Sheehan acknowledged the obligation by public servants to provide complete and fearless advice but said that there was a question about a risk in relation to the comprehensiveness of an IGB, not whether a public servant would meet his or her obligations overall. He accepted that a risk of embarrassment is not a matter that should be taken into account in giving advice but said that this was not relevant to his views about publication.
Mr Sheehan accepted that there were significant parts of the IGB that would not cause controversy if made public. Despite this concession, Mr Sheehan maintained that the IGB should not be disclosed. He described it as “unique”; it was prepared as a confidential document for the audience of the incoming Ministers. He pointed out that ‘you get one chance to prepare this document for incoming Ministers’ and, given the nature of the document and its importance, his view is that the preferable outcome is that it not be released, for the reasons given by the Commissioner. Mr Sheehan explained his view by saying that the IGB is complex and made up of different elements and different parts. His view was that there were parts that would not in themselves cause controversy, either generally or between the Department and the Attorney-General, but he did not agree that that would not cause a problem at all. His threshold concern with release was that it may cause those officers preparing material to see that a line will be drawn, and if they are not sure where such a line will be drawn, that will affect their confidence in providing material in an IGB.
Consideration
While I have taken the Commissioner’s reasons into account, it is necessary that the Tribunal reach its conclusions by conducting its own independent assessment and determination of the matters necessary to be addressed (Shi v Migration Agents Registration Authority (2008) 235 CLR 286, per Kiefel J at [141]). It is therefore necessary for the Tribunal to address the same question as did the Commissioner, albeit at a different time. However, where the Commissioner’s reasoning is apposite, it is open to the Tribunal to agree with, or reject, that reasoning.
Section 61(1)(b) of the Act provides that in Tribunal proceedings to review an FOI decision, the agency or Minister to whom the access request was made has the onus of establishing that a decision should be given that is adverse to an applicant. That onus is maintained irrespective of whether the applicant for review is the agency, or Minister, or the FOI applicant (s 61(1)(a) of the Act).

The Guidelines published after the introduction of the 2010 amendment to the Act, in October 2014, state the “key principles” arising from the 2010 amendment, in summary, and in essence:
·The presumption of openness and maximum disclosure was made more explicit.
·A single public interest test applies to all conditional exemptions and is weighted towards disclosure (relevantly to this application).
The Guidelines set out matters relating to the decision on request for access. In each aspect, the Guidelines emphasise the importance of the facilitation and promotion of public access to information. This accords with the general objects as set out in s 3 of the Act, which embody a policy – or presumption – of open government that is relevant to all FOI decision making (s 3(1)). As relevant to the present consideration, the Guidelines mirror the objects of the Act.
I agree with the Commissioner (at [46]) that material which draws from public sources and simply describes the role, structure, functions, personnel and resources of the Department is not deliberative matter merely by inclusion in a document that was deliberative in purpose. This is, as the Commissioner noted, reinforced by the separation of the IGB into the two parts, separately headed, both of which include such material. In ReWaterford v Department of the Treasury (No 2) (1984) 5 ALD 588, the Tribunal considered the meaning of “deliberative processes” after resorting to The Shorter Oxford English Dictionary definition of “deliberation”. The Tribunal said in ‘short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.
The distinction that the Commissioner drew in Crowe was ‘between statements of fact which can stand alone… and those which are so close to the deliberative process that they form part of it’ (Re Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139, at [22]).
In Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150, the Full Court considered what constitutes ‘purely factual material’. Their Honours discussed the difference between deliberative material and a deliberative process and the fact that in the latter case, a factual summary prepared to aid the resolution of a difficult complex question would be within an exemption for a deliberative process. Their Honours concluded that a summary may be classed as purely factual material but may also be of a character as to disclose a process of selection involving opinion, advice or recommendation. Their Honours said that ‘a conclusion which involves opinion, advice or recommendation for the purposes of the deliberative process may well prevent material from being purely factual and render it exempt’ (at 155). In that regard, as is pointed out in Re Chapman (at 151), the issue may not be able to be determined by reference only to the content of the document but by reference also to the context which formed part of the deliberative or consultative process.
The Strategic Brief
The Strategic Brief consists of a covering letter from the Secretary of the Department and 178 pages of material in accordance with a Table of Contents. As the Commissioner described it at [39], it is framed as a deliberative process document and, throughout that section of the IGB, contains the Department’s analysis, views and advice on portfolio issues that may arise for consideration by the Attorney-General and the Government. This includes commentary on the implementation of the Government’s policy commitments. It can be accepted that there is a large amount of factual material. The question is whether it can be said to be “purely factual material”.
It is clear from the covering letter that the Strategic Brief has been prepared to advise the Attorney-General on various matters of policy, not only on election commitments but also concerning issues likely to arise and strategic directions that may be pursued. In that context, the factual matters contained in the Strategic Brief “set the scene” for the deliberative process to be undertaken.
The covering letter itself chooses specific matters which, while in some cases are described factually, are presented as necessary for consideration. Similarly, the Table of Contents, while descriptive, selects the topics and describes them in a way that conveys their relative importance for the Attorney-General’s deliberation. The factual material in the Strategic Brief itself describes the factual matters such as existing programs, legislative context and steps to be taken as part of the framework for the Department’s analysis and advice to the Attorney-General. As the Commissioner expressed it, the factual material ‘is integral to the deliberative content and purpose of the Brief’. The analysis and views expressed in the Strategic Brief and the factual matters are so integrated that it is not only not practical to separate them but also the separate disclosure of the factual matters would be likely to effectuate a disclosure of the deliberative matters to which they relate. In that sense, they cannot be described as “purely factual matters”.
In my view, the section entitled “Setting the Scene” and so much of the Table of Contents as directed to that Part of the Strategic Brief (at pages 2 to 7), which sets out the role of the Attorney-General in broad terms, are not conditionally exempt under ss 47C or 47E of the Act. However, there are two exceptions within the “Setting the Scene” section that are conditionally exempt under s 47C, as disclosure would disclose deliberative matter. These are:
·those paragraphs identifying and commenting on certain cases decided and pending in the High Court; and
·the part of the section dealing with “National Security”, which provides details that reasonably relate to policy and strategic matters for the deliberation of the Attorney-General.
Otherwise, the Strategic Brief is conditionally exempt under s 47C of the Act. It is not necessary separately to consider the application of s 47E.
The Information Brief
In broad categories, the Information Brief commences with a Table of Contents, information about the Department and the role of and responsibilities of the Attorney-General. Such information is neutral in its form and content. It is purely factual material. The titles of each of the parts or sections of the Information Brief are purely factual in nature and do not connote or inform a strategic analysis or deliberation.
There is a section entitled “Significant Litigation”. Apart from the first paragraph, that section lists the parties whose opinions may be taken into account and what are characterised as significant legal matters, together with summaries of each case. Apart from any characterisation as material which is subject to legal professional privilege, the material is not purely factual. It presents information to the Attorney-General to enable him to consider and decide his approach to each case. As such, it is deliberative matter and subject to s 47C of the Act.
The section entitled “Portfolio Appointments” contains material as to expired and expiring appointments in the portfolio to September 2014. It is purely factual material.
The next section of the Information Brief is entitled “Your Portfolio”. The introduction or “overview” is neutral in character and does not contain deliberative matter. However, the remainder of this section contains what might be characterised as a “status report” together with comment on each matter, directed to assisting the Attorney-General in the deliberative process and necessary decision-making. Many of the matters are sensitive in nature and include predictions. It cannot be said to contain purely factual information. That section of the Information Brief is, as the Commissioner concluded, subject to s 47C of the Act.
The section on “Portfolio Agency Summaries” contains purely factual information as to the role of each agency. However, the “Key Issues” section of each summary contains an integrated mix of fact, analysis, opinion and future possible actions. It is inherently deliberative in nature. The section on “Key Stakeholders” is in the same category as “Key Issues” with respect to the Portfolio Agencies.
The final section, on “Engaging Internationally”, contains purely factual and publicly available information.
The material that is not purely factual in nature is conditionally exempt under s 47C of the Act.
The Information Brief includes the mobile phone numbers and other direct contact numbers of Departmental and portfolio agency personnel and other contact information including mobile numbers, contact numbers and email addresses for representatives from certain stakeholder organisations. It follows that the identity of the individuals concerned is clearly ascertainable from the surrounding information.
Section 47F of the Act provides for conditional exemption of personal information about identified individuals where disclosure would be unreasonable. “Personal information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not. The parties accept that access should not be given to such personal information and that it would be unreasonable to disclose the direct contact details of these individuals. It follows that such material, predominantly found in pages 53 to 105 of the Information Brief, is conditionally exempt.
is access contrary to the public interest?
To the extent that the IGB is conditionally exempt, the factors relevant to the public interest under s 11A(5) of the Act must be assessed.
Legislation
Section 11A(5) of the Act relevantly provides:
11A Access to documents on request
(5)The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1:   Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:   A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:   Section 11B deals with when it is contrary to the public interest to give a person access to the document.
The public interest exemption factors are set out in s 11B of the Act, relevantly as follows:
11B Public interest exemptions - factors
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2)       This section does not limit subsection 11A(5).
Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)       inform debate on a matter of public importance;
(c)       promote effective oversight of public expenditure;
(d)       allow a person to access his or her own personal information.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)       access to the document could result in embarrassment to the                   Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa)     access to the document could result in embarrassment to the                    Government of Norfolk Island or cause a loss of confidence in the          Government of Norfolk Island;
(b)       access to the document could result in any person misinterpreting   or misunderstanding the document;
(c)       the author of the document was (or is) of high seniority in the   agency to which the request for access to the document was made;
(d)       access to the document could result in confusion or unnecessary               debate.
Guidelines
(5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
In Part 6 of the Guidelines, the Commissioner gives a detailed explanation of the “public interest test”, pointing out, again, that the pro-disclosure principle declared in the objects of the Act is given specific effect in the public interest test, as the test is weighted toward disclosure. Factors that are taken into account favouring disclosure and those favouring non-disclosure must be specified and must be directly relevant to the particular harm threshold of the conditional exemption and to the particular document, the particular circumstances and the particular time. The Guidelines are helpful in providing examples of public interest factors as provided for in s 11B of the Act, in accordance with and in the context of the objects of the Act.
The Guidelines include:
PART 1 – INTRODUCTION TO THE FREEDOM OF INFORMATION ACT 1982
Objects of the FOI Act
1.13 The objects of the Act, which were amended in 2010, emphasise the reasons for giving the Australian community access to information held by government. Government officers must have regard to these objects when making decisions under the legislation.
1.14     The objects of the FOI Act are set out in s 3:
• to give the Australian community access to information held by government, by requiring agencies to publish that information and by providing for a right of access to documents
• to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making
• to promote Australia’s representative democracy by increasing scrutiny, discussion, comment and review of government activities
• to increase recognition that information held by government is to be managed for public purposes and is a national resource
• to ensure that powers and functions in the FOI Act are performed and exercised, as far as possible, so as to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
PART 3 – PROCESSING AND DECIDING ON REQUESTS FOR ACCESS
Administering the FOI Act – general considerations
Principles of good decision making under the FOI Act
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3.11     Decision making under the FOI Act must take account of the statement of general objects in s 3. As discussed more fully in Part 1 of these Guidelines, the general objects embody a policy — or presumption — of open government that is relevant to all FOI decision making. This is emphasised in s 3(4), which states Parliament’s intention ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’. Another specific object, stated in s 3A, is that agencies and ministers retain an administrative discretion (subject to other legislation) to provide access to information and documents other than under the FOI Act.
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Decisions on requests for access to documents
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3.88     Applying those considerations, an agency or minister should take a common sense approach in considering whether the number of deletions would be so many that the remaining document would be of little or no value to the applicant. Similarly, the purpose of providing access to government information under the FOI Act may not be served if extensive editing is required that leaves only a skeleton of the former document that conveys little of its content or substance.
PART 6 – CONDITIONAL EXEMPTIONS
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What does the term ‘public interest’ mean?
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6.7      The concept of public interest has also been described as something that is of serious concern or benefit to the public, not merely of individual interest. It has been held that public interest does not mean of interest to the public, but in the interest of the public.
6.8      The term ‘public interest’ was not defined in the FOI Act when it was enacted. This approach encouraged decision makers to analyse what constitutes the public interest in a particular matter, rather than relying on set criteria. Following the 2010 reforms, the term remains largely undefined, although there are some factors which must not be taken into account (see paragraph 6.31). The term ‘public interest’ is necessarily broad and non-specific because what constitutes the public interest depends on the particular facts of the matter and the context in which it is being considered. The concept can be applied to a multitude of situations and circumstances. Public interest considerations (such as the administration of justice) may also be simultaneously evoked in favour and against disclosure of a document in a particular case.
6.9      To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, whereon balance the public interest lies, based on the particular facts of the matter at the time the decision is made.
6.10 It is not necessary for a matter to be in the interest of the public as a whole. It may be sufficient that the matter is in the interest of a section of the public bounded by geography or another characteristic that depends on the particular situation. The public interest relates to matters of common concern or relevance to all members of the public, or a substantial section of the public. A matter of particular interest or benefit to an individual or small group of people may nevertheless be a matter of general public interest. This is recognised in s 11B(3)(c) of the Act, which states that there can be a public interest in allowing a person to access his or her personal information.
Applying the public interest test
6.11     The FOI Act requires that:
The agency or minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. (s 11A(5))
6.12     The pro-disclosure principle declared in the objects of the FOI Act is given specific effect in the public interest test, as the test is weighted towards disclosure. If a decision is made that a conditionally exempt document should not be disclosed, the decision maker must include the public interest factors they took into account in their statement of reasons under s 26(1)(aa) (see Part 8 of these Guidelines).
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Step 1: Determine if the document is conditionally exempt
6.16     For each of the conditional exemptions, the harm threshold that must be reached is specified in the provision. The various harm thresholds vary in both the extent of the harm that disclosure would cause and the extent to which the decision maker must be satisfied that the harm would result. The only exception is the deliberative processes exemption (s 47C), which does not include any requirement of harm: the threshold requirement is that the document includes deliberative matter. Specific guidance on the criteria to be met in each of the eight conditional exemptions is provided later in this Part.
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Step 2: Identify the specific harm threshold
6.20     Because each exemption is different, there is necessarily a high degree of specificity in the considerations relevant to each decision about granting access. This directly affects how the factors favouring disclosure and those favouring non-disclosure are determined. These factors must be directly relevant to both the particular harm threshold of the conditional exemption and to the particular document, the particular circumstances and the particular time.
6.21     Using the previous example of s 47D, the specific harm that must be shown is a ‘substantial adverse effect’ on the financial or property interests of the Commonwealth, Norfolk Island or an agency.
6.22     While both Steps 1 and 2 involve consideration of harm, there is a distinction in the nature and purpose of this consideration. In Step 1, the consideration relates to whether or not the harm threshold has been met in order to determine whether the document is conditionally exempt. Step 2 relates to quantifying the harm as a preparatory step to weighing the factors in favour and against disclosure.
Step 3: Identify the factors favouring disclosure
6.23     The FOI Act sets out four factors favouring access, which must be considered if relevant. They are that disclosure would:
(a) promote the objects of the Act
(b)       inform debate on a matter of public importance
(c)       promote effective oversight of public expenditure
(d)allow a person to access his or her personal information (s 11B(3)).
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Step 4: Identify the factors against disclosure
6.26     The FOI Act does not list any factors weighing against disclosure. These factors, like those favouring disclosure, will depend on the circumstances. However, the inclusion of the exemptions and conditional exemptions in the FOI Act recognises that harm may result from the disclosure of some types of documents in certain circumstances; for example, where disclosure could prejudice an investigation, unreasonably affect a person’s privacy or reveal commercially sensitive information. Such policy considerations are reflected in the list of public interest factors that may be relevant in a particular case.
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Step 5: Ensure that no irrelevant factor will be considered
6.30 The decision maker must take care not to consider factors that are not relevant in the particular circumstances. The FOI Act also nominates certain factors which must not be taken into account, as explained in paragraph 6.77 below. Some of these factors were commonly applied prior to the 2010 amendments to the Act.
6.31     The irrelevant factors are:
• access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government
• access to the document could result in any person misinterpreting or misunderstanding the document
• the author of the document was (or is) of high seniority in the agency which the request for access to the document was made
• access to the document could result in confusion or unnecessary debate (s 11B(4)).
Step 6: Weigh the relevant factors to determine where the public interest lies
6.32     The decision maker must determine whether access to a conditionally exempt document is, at the time of the decision, contrary to the public interest, taking into account the factors for and against disclosure. The timing is important: it is possible that certain factors may be relevant when the decision is made, but would not be relevant if the request were to be reconsidered some time later. In such circumstances a new and different decision could be made.
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Deliberative processes
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6.59     The deliberative processes exemption differs from other conditional exemptions in that no type of harm is required to result from disclosure. The only consideration is whether the document includes content of a specific type, namely deliberative matter. If a document does not contain deliberative matter, it cannot be conditionally exempt under this provision, regardless of any harm that may result from disclosure.
6.60     While identifiable harm resulting from disclosure is not a specific factor in determining whether a document may be categorised as ‘deliberative’, it may be relevant subsequently when deciding where the balance of the public interest lies. If, in a particular case, a deliberative document may be released without appreciable harm resulting, this would tend to indicate that it would not be contrary to the public interest to disclose the document and therefore it must be released to the applicant.

In the Guidelines, the Commissioner sets out the meaning of the term “public interest” and matters involved in applying the public interest test. He explains (at [6.7]) that the concept of public interest can be described as something that is of serious concern or benefit to the public, not merely of individual interest, and that it has been held that public interest does not mean “of interest to the public” but “in the interest of the public”. Thus, the public interest necessarily depends upon the particular facts of the matter, in the context of which it is being considered. A determination must be made as to whether the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. This is reflected in s 11A(5) of the Act, which provides that a determination must be made as to whether, on balance, access would be contrary to the public interest.
The Guidelines set out factors favouring disclosure, referring to the factors set out in the Act but recognising that they are broadly framed and do not constitute an exhaustive list. One factor identified in the non-exhaustive list provided by the Commissioner (at [6.25] of the Guidelines) is that the Act promotes disclosure by informing the community of the Government’s operations including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by a government in its dealings with members of the community, so allowing or assisting enquiry into possible deficiencies in the conduct or administration of an agency or official. Another factor favouring disclosure is that disclosure reveals the reasons for government decisions and any background or contextual information that informed the decision; it enhances the scrutiny of government decision making.
As to the public interest factors against disclosure, the Guidelines recognise that harm may result from the disclosure of some types of documents in certain circumstances. Some of the factors identified in the non-exhaustive list provided (at [6.29]) do not specifically apply to the present case and, indeed, are not relied upon by the Secretary. However, the Commissioner points out in the Guidelines that there are certain factors identified in the Act that must not be taken into account:
·Access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government.
·Access to the document could result in any person misinterpreting or misunderstanding the document.
·The author of the document was (or is) of high seniority in the department to which the request for access to the document was made.
·Access to the document could result in confusion or unnecessary debate.
Further, the Guidelines point out that it is possible that certain factors may be relevant when the decision was made but would not be relevant if the request were to be reconsidered at some time later.
If access is not shown to be contrary to the public interest, Mr Dreyfus would have a right of access under s 11 of the Act. If access to the IGB is contrary to the public interest, then the document or that part of it would be deemed to be “exempt” (s 31B(b) of the Act).
The Commissioner’s decision
The Commissioner considered that ‘[t]he main issue to be considered in this case is whether it would be contrary to the public interest to release the material that I have decided is conditionally exempt under s 47C’. The Commissioner repeated his summary from Crowe regarding relevant public interest considerations, including:
·IGB’s play an important role in the Australian system of responsible parliamentary government. Their purpose is to facilitate a smooth transition from one government to another following a general election.
·An IGB will be prepared prior to the general election, when both the outcome and identity of the new Minister are unknown. An IGB enables the incoming government and the Department to develop a relationship that accords with the conventions of responsible parliamentary government.
·An IGB provides frank and honest advice on the policy priorities and challenges facing a new government. As the advice is prepared before the new Minister is known, the context is unique and requires that confidential advice can be prepared without endangering the development of a proper working relationship with the Minister.
·An IGB is prepared essentially as a communication limited to an audience that may comprise only one person: the new Minister. If it is known that an IGB will be disclosed publicly, there is a risk that it will be tailored to a different audience or with different interests in mind, which could compromise the quality of an IGB.
·It is important, in the early days of a new government, that the public service is not drawn into political controversy, or required publicly to defend the advice provided to a new government.
The Commissioner stated that these public interest considerations provided a strong public interest basis for concluding that it would be contrary to the public interest to release the deliberative content found to be conditionally exempt under s 47C of the Act. He acknowledged that the period of greatest sensitivity is in the months immediately following the election when a new government is being formed, as many comments in the IGB could potentially be controversial. The Commissioner concluded that, if it were known that the deliberative content in the IGB were to be released publicly, it seems highly likely that it would not have been written in the frank and direct style that it is. He also concluded that the same adverse effect would be likely to occur if the IGB were released at the time of his review, less than one year after the election.
The Commissioner weighed those considerations against public interest factors, drawn from ss 3 and 11B(3) of the Act, that favour disclosure. He identified in Crowe (at [89]) and noted in this decision, as general public interest factors, that release of further material from the IGB would:
·inform public debate on the implementation of the policy commitments of an IGB;
·enable public scrutiny of the advice prepared for an incoming Minister; and
·provide the Australian public with access to the informed opinion of the Australian Public Service on important matters of national policy.
The Commissioner noted Mr Dreyfus’ submission that there had been partial releases on the Department’s Disclosure Log of IGBs provided to former Attorneys-General, the Honourable Nicola Roxon MP (in December 2011) and to himself as Attorney-General (in February 2013). However, the Commissioner observed that the IGB appears to contain more direct analysis, commentary and advice about the challenges and priorities facing the new Attorney-General following the election of a new Government. The Commissioner acknowledged that there is a difference between the discretionary release by a Minister of portions of a brief received midway through the life of a government and a decision by the Commissioner that required release of the deliberative content of an IGB provided to a new Minister following the election of a new Government.
The Commissioner concluded that release of the deliberative content of the IGB would be contrary to the public interest.
The Commissioner noted that under the Queensland Right to Information Act 2009 (Qld) Sch 3, It 2, an incoming ministerial brief is exempt from disclosure for ten years after it is brought into existence. The reason is that IGBs are designed to provide ‘a snapshot in time of a department’s current issues, policy agenda, resources and problems’ (Crowe at [99]). These were matters referred to in the review of the Act by Dr Allan Hawke AC (Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010 (August 2013) (Hawke review)) where the reasons advanced for exemption from disclosure were now relied upon by the Department, that is:
·Inhibition of free and frank provision of information;
·Freedom on the part of a department to bring information to a Minister’s attention;
·The building of an effective relationship between a department and the Minister.
The Commissioner noted in Crowe (at [100]) that the Queensland approach differed from the Hawke review, as the matters were fully dealt with in the Act by reference to the public interest test and the exemption was not limited by time.
In Crowe v Department of Prime Minister and Cabinet [2014] AICmr 72 (at [3]) the Commissioner again upheld a decision to refuse access to documents and commented that ‘for FOI Act purposes it is in the public interest to maintain the practice whereby confidential deliberative advice on the full range of portfolio issues can be prepared for and provided to a Minister following a national election, in the form of an IGB’. At [30], the Commissioner expanded on his conclusion that it is generally contrary to the public interest to release the deliberative content of an IGB and the findings that are relevant to expressed conclusions. He said that:
·An IGB is a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government.
·Release of deliberative content of an IGB at the time of its preparation or soon after could be expected to draw a department or Minister into a debate or controversy that would confound the objective of placing the Minister in the position of taking control of a new portfolio and establishing a trusting and effective working relationship with the department.
·The quality value and relevance of an IGB would be compromised if it were written in a less frank or direct style in anticipation that it may soon be a public document.
The Commissioner also made a number of relevant observations:
·Each case must be considered on its own by reason of its own character, sensitivity, confidentiality and exemption status, so that decisions with respect to previous releases of portions of IGB’s carry little weight in a determination in a different case.
·The release of deliberative content from the IGB would probably trigger a change of practice within government concerning the preparation of IGBs.
·A shift in the public interest balance would find support and a forceful case can be made for greater disclosure of advice to government and for facilitating broader participation and scrutiny of government policy formulation and decision making. However, ‘the central premise’ of his findings in Crowe and in the present case is that it is in the public interest to maintain the practice whereby confidential deliberative advice on the full range of portfolio issues can be prepared for and provided to the Minister following a national election, in the form of an IGB.
·As to the temporal element in s 11A(5) of the Act, access should be given unless access would “at the time”, on balance, be contrary to the public interest. The age of the document and changes in the circumstances of government can be relevant to deciding whether the disclosure would be contrary to the public interest. Policy advice contained in the document may have been overtaken in time by a change in government and the effluxion of time. However, much of the material in question remained sensitive, although possibly for a changed reason from that applying when the IGB was written.
·It would be contrary to public interest to release redacted material at the later time, where disclosure of the advice could be held up as a yardstick for measuring the performance of the Prime Minister, to whom the advice was provided. This, itself, would potentially create controversy about either the advice provided to the Prime Minister, the response, the relationship between senior Departmental advisors and the Prime Minister or implications for the current Government–Department relationship.
·A logical consequence was that IGBs would be prepared differently in the future with an eye to avoiding that controversy, which itself could rob an IGB of its essential and contemporary purpose.
·While many sentences in this IGB mirrored comments that were already in the public domain or could individually be released without consequence, confidentiality that attaches to the deliberative content in an IGB has less to do with character of individual sentences or comments and more to do with their inclusion in a document of a special nature.
Mr Dreyfus’ submissions
Mr Dreyfus submits that the following questions arise by reason of s 11A(5) of the Act:
·What are the circumstances that exist at the time of this decision by the Tribunal?
·Would access to conditionally exempt documents, on balance, be contrary to the public interest?
In determining the first question, Mr Dreyfus emphasises out that the Tribunal is to have regard to the circumstances as they exist at the time the review is conducted by the Tribunal (Shi), that is, the 26 months after the 2013 Federal election and 16 months after the Commissioner’s decision. Mr Dreyfus points out that there has been a significant period since the 2013 Federal election, and, as Mr Sheehan acknowledged, the relationship between the Attorney-General and the Department has been strong and effective, such that there is now a stable working relationship based on mutual trust. As such, the situation is different to the time when the relationship was embryonic.
Mr Dreyfus emphasises that it is of fundamental importance that, as set out in s 11B(4) of the Act, irrelevant factors are not taken into account, specifically, that release of the IGB would:
·result in embarrassment to the Government;
·cause a loss of confidence in the Government;
·result in any person misinterpreting or misunderstanding the conditionally exempt document; or
·result in confusion or unnecessary debate.
Once the irrelevant factors are disregarded, Mr Dreyfus contends, the second question can be answered and the Tribunal must then consider the factors that favour access, as provided for by s 11B(3) of the Act. Mr Dreyfus submits that the factors favouring access to the conditionally exempt documents at the time of the Tribunal’s review are that access would:
·promote oversight of the public expenditure of the Department.
·inform debate on matters of public importance, including:
ohow the Department intends to carry out the commitments raised by the Government in the lead up to the 2013 Federal election;
ohow the Department spends tax payer’s money;
ohow responsibility is divided within the Department; and
othe nature of the Department’s decision making processes.
·promote the objects of the Act by:
ogiving the Australian community access to information held by the Government;
oproviding a right of access to the Australian community to future IGB’s, promoting representative democracy by increasing scrutiny, discussion and comment on government activities;
oincreasing recognition that information held by the Government is a national resource; and
ofacilitating public access to information at the lowest possible cost.
Accordingly, Mr Dreyfus submits, to the extent that documents contained in the IGB are conditionally exempt under ss 47C and 47E(d) of the Act, the documents are not “exempt” documents within the meaning of s 31B(b) of the Act because access to those documents would not, on balance, be contrary to the public interest.
Mr Dreyfus submits that officials should be happy to defend publicly any advice given to a Minister and, if they are not happy to do so, they should rethink the advice, in the tradition of giving frank and fearless advice.
Mr Dreyfus relies upon the obligations of the Public Service Act 1999 (Cth) (PS Act). In particular, he points out that the Public Service is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence (PS Act s 10(5)). Mr Dreyfus submits that this obligation on the part of a public servant will not change simply by reason of the disclosure of information contained in an IGB. A further obligation to which he refers is that set out in s 13(6) of the PS Act, being an obligation to maintain appropriate confidentiality about dealings that the public servant has with any Minister or Minister’s member of staff.
Mr Dreyfus draws attention to the second reading speeches for, and the explanatory memorandum to, the Act and the repeated statements there made that the amendments were directed to promote a “pro-disclosure attitude” and a culture of disclosure in the public interest, such that access to documents is limited only where a stronger public interest lies in withholding access to documents.
Further, he points out, the explanatory memorandum in respect of s 11A(5) of the Act refers to the consideration of the particular time at which access is sought, since the reason for maintaining confidentiality of the document may not be ongoing.
The Secretary’s submissions
The Secretary accepts that there is a public interest in disclosure of the IGB, in that disclosure would advance the objects of the Act by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of the Government’s activities. However, the Secretary argues that the test for access is not that the information in the IGB would be “interesting” to the public. Rather, he says that the test is whether disclosure is in, or contrary to, the public interest (Johansen v City Mutual Life Assurance Society Ltd (1904) 2 CLR 186).
The Secretary submits that consideration must be given to the following factors against disclosure:
·Disclosure of the IGB is reasonably likely to compromise the provision of frank and candid advice to the Attorney-General in future IGBs. It is reasonably likely that if the contents in the IGB under review were publicly disclosed, officers would prepare IGBs with a public audience in mind. Accordingly, the IGB would be of less utility to a new Attorney-General. This may compromise efficient policy implementation and the capacity of the Attorney-General to make decisions on a fully informed basis early in the life of a newly elected government. Despite noting that the Guidelines (at [6.77]) state that an argument based on “frankness and candour” is inconsistent with the objects of the Act and that Popple SM (in Rovere and Secretary, Department and Education and Training [2015] AATA 462) expressed doubts about arguments based purely on frankness and candour, the Secretary contends that there is nothing in the extrinsic materials for the 2010 reforms to the Act which lend weight to that assertion.
·As new Ministers in Australia become immediately responsible for their Departments and Agencies, there is a public interest in a new Minister being able immediately to access material dealing comprehensively with matters. The Secretary submits that disclosure of IGBs could reasonably prejudice the capacity of an incoming Minister to assume immediate responsibility and may adversely impact the continuity of a government.
·Disclosure of the IGB may compromise the future capacity of the Department to build a relationship of mutual trust and confidence with the Attorney-General following the formation of the new Government. The Secretary argues that the relationship of trust and confidence will be affected if advice is not able to be provided on a confidential basis.

Further, the Secretary contends that particular public interest factors argue against disclosure concerning highly sensitive material. This material includes advice and opinions concerning Australia’s international relations, national security, Commonwealth and State relations and the future resourcing of the Department. The public interest factors include:
·Disclosure may jeopardise Australia’s position in negotiating particular international agreements.
·Disclosure would reveal the substance of matters considered, or to be considered, by Cabinet.
·Disclosure could prejudice Australia’s diplomatic relations with foreign governments.
·Disclosure could reasonably compromise relations between State, Territory and Commonwealth governments.
·Disclosure may prejudice commercial negotiations of the Department with third party service providers.
·Disclosure would reveal information regarding security arrangements for managing risks to government employees, information and assets, which may allow a member of the public to exploit such risks.
·Disclosure would reveal deliberations on national security measures, which may provide an opportunity for a member of the public to exploit vulnerabilities in the existing framework.
The Secretary submits that the risks associated with disclosure of deliberative content are particularly significant in the circumstances. Even though it is appropriate that a government should be accountable to the public that elects it, the Secretary submits that a government should be judged by the quality of its policies and success in implementing them, rather than whether it has followed advice provided to it at the earliest moments of its formation.
Accordingly, the Secretary submits, it is in the public interest that confidentiality be maintained in order to preserve the proper workings of the Government.
Consideration
In Crowe, the Commissioner pointed out that, notwithstanding particularity of the issues, one cannot disregard the larger context in which the exemption question arises (at [34]). The Commissioner identified broader issues to be considered, including:
·The protection of candour and confidentiality as a public interest consideration.
·Whether there has been publication since the relevant selection of portions of the IGB.
The Commissioner addressed the question whether there can be a class claim, that is, a claim for non-disclosure of a particular category of document under s 47C of the Act and responded that ‘in principle the answer is no’ (at [40]). This is because s 47C is a conditional public interest exemption such that a person can be refused access under the Act to a document that contains deliberative matter, as defined in s 47C only, if release of the document ‘at the time would, on balance, be contrary to public interest’. Accordingly, it is necessary to balance competing public interest considerations to decide whether an exemption claim should be upheld at a particular point in time. Section 47C does not accord exemption to a document or class of documents by description only, without a separate enquiry as to whether the disclosure would be injurious to the public interest.
The evidence in Crowe (at [42]) was to the effect that an IGB would be robbed of its essential and valuable character if it were released prematurely because of the general need to protect the confidentiality, rather than because of the need to protect the content of the particular IGB. The Commissioner there stated that while class claims may be raised and considered under s 47C, this should be exceptional and should not be the only, or the determinative issue in the case and should be connected to, or explained by, reference to the contents of the particular documents in dispute and the particular public interest considerations.
As to the asserted need to preserve candour and confidentiality, the Commissioner noted (Crowe at [47]) that this assertion was rejected in Sankey v Whitlam (1978) 142 CLR 1 and the conclusion, following the Hawke review, that the tradition of ‘frank and fearless advice is robust’. Further:
·Confidentiality, frankness and candour arguments should be treated as facets of the public interest, to be weighed in each case with other competing considerations (Crowe at [53]).
·Such arguments would need to be supported by ‘compelling evidence’ (Crowe at [53]).
·The prospect of disclosure can cause individuals to be less candid and frank. That is relevant as to whether, on balance, the efficiency and output of the deliberative process is affected, as well as a claim that disclosure of confidential, forthright or candid advice would prejudice the proper functioning of government. The latter assertion must be explained and related to particular practice, process, policy or program in government (Crowe at [57] – [58]).
·The advice expressed within the document relates to a deliberative process of both a department and the Minister.
·The purpose of the exemption is to protect the deliberative process as much as the deliberative matter that contributes to it. Whether a claim will be upheld will depend on the nature of the claim considered, together with other supporting and competing public interest considerations. ‘[A] strongly influential factor in this decision is the need to safeguard the tradition by which a Minister in a newly-elected government can receive a confidential brief from the public service that provides constructive and candid commentary for the Minister’s consideration’ (Crowe at [59]).
In Rovere, the Tribunal observed (at [53]) that the fact that disclosure may inhibit a department’s frankness and candour in providing future advice to Ministers is not a factor against giving access to documents. I take the Tribunal in Rovere to have considered that a claim that disclosure will inhibit frankness and candour in the future pre-decisional communications, where there is no other factor against access, cannot be a factor when applying the public interest test. The Tribunal said that it cannot be in the public interest for the document not to be disclosed for no other reason than that its disclosure would discourage the creation of other documents (Rovere at [52]).The disclosure of any document prepared by an agency for briefing a Minister has the potential to inhibit frankness and candour and it cannot be a factor against access when applying the public interest test, if that is the only reason for opposing disclosure. The example was given that when disclosure of documents will no longer damage the operation of the market, or adversely affect markets or financial frameworks, a department should consider publishing documents for the reasons identified as factors favouring access, as specifically enumerated in s 11B(3) of the Act (Rovere at [69]).
It is not necessary for me to revisit the reasoning of the Commissioner, save to the extent that it is of assistance in identifying the public interest factors that now apply. In addition, the evidence of Mr Sheehan was not available to the Commissioner. That evidence is directed to certain public interest factors relied on by the Secretary.
Some of the matters raised by Mr Sheehan in his affidavit were clarified in cross-examination. For example, he explained that an IGB is important in developing a relationship of trust and confidence. He accepted that such a relationship has now been established between the Attorney-General and the Department but maintained his position that the IGB should remain exempt, primarily because it represents an incomplete analysis, as set out in [41] above, and because provision of access would have a negative impact on the preparation of IGBs in the future. As an IGB forms an essential task of assisting in bringing a new Minister “up to speed” quickly, as set out in [38] above, this is likely to have a long term impact on the content of future IGBs.
In circumstances where an IGB necessarily contains incomplete material and analysis and is prepared for a new Minister in a new Government, it is important that those preparing an IGB do so without concern as to the consequences of doing so. This is not a question of embarrassing a Minister or simply of inhibiting frankness and candour but of limiting the input to an IGB. Further, if the IGB were released and incomplete or incorrect, it would misdirect public understanding of the analysis and advice, to the public’s detriment. This is not the same as the irrelevant factor of misinterpreting or misunderstanding the document itself, or of giving rise to confusion or unnecessary debate. It is important that those preparing the deliberative content of IGBs continue to understand that it may be not only frankly but also fully and in the knowledge that it is confidential to the intended recipient/s. It is then up to the Minister and the Secretary to determine any discretionary release.
Further, there are specific factors that argue against disclosure of the deliberative matter. They have been enumerated by the Secretary, as set out in [93] and [93] above and, in my opinion, apply.
The reasons as advanced by Mr Sheehan and as set out above are independent of the time that has elapsed since the preparation of the IGB and since the Commissioner’s decision. While the Department and the Attorney-General have now developed a relationship of trust and confidence, disclosure of the IGB, and the knowledge that an IGB is not confidential and is subject to disclosure, is likely to affect the capacity for the Department to build such a relationship in the future.
I accept that the factors favouring access, as set out in s 11B(3) of the Act, in the objects of the Act (set out in s 3 of the Act and in [1.14] of the Guidelines) and as relied upon by Mr Dreyfus do apply and do favour access generally. However, the IGB is unique in nature.
In this case, the combination of factors against release in the public interest include the nature of an IGB to a new Minister in a newly elected incoming Government, the evidence of Mr Sheehan explaining the importance of the maintenance of confidentiality on not only the content of this IGB but also on the preparation of future IGBs, the need for continuity of frankness, candour and completeness in the advice and commentary contained in IGBs, the extent of deliberative matter contained in such a document and the impact on the preparation of future IGBs if access were granted. While none of these factors standing alone may be sufficient to outweigh the public interest in access, the factors against release are cumulative and it is that accumulation that tips the balance against access being granted. This is not a document of a nature that is prepared just once. Further, it is an IGB prepared for a new Minister in a new Government. The factors raised by Mr Sheehan and the Secretary, on balance, outweigh the public interest factors that favour access. As the Commissioner said, the IGB was prepared in a specific context, as summarised at [73] above. Such a context requires preparation of the document unhindered by apprehension that the IGB, prepared as a confidential brief to an incoming new Attorney-General, will be released. These factors were relevant when the IGB was being prepared and remain relevant today.
That is not to say that access to the purely factual material should be denied. However, in this case, on balance, the benefit to the public resulting from disclosure of the conditionally exempt information is outweighed by the benefit to the public of withholding access.
Can an edited copy be prepared?
Legislation
The Act provides for access to be granted to an edited copy. Section 22 of the Act relevantly provides:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)This section applies if:
(a)       an agency or Minister decides:
(i)        to refuse to give access to an exempt document; or
(ii)that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b)it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i)access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii)the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c)it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i)        the nature and extent of the modification; and
(ii)       the resources available to modify the document; and
(d)it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2)The agency or Minister must:
(a)       prepare the edited copy as mentioned in paragraph (1)(b); and
(b)       give the applicant access to the edited copy.
That is, an assessment must be made whether an edited copy of the IGB can be prepared with exempt or irrelevant matter deleted. If an edited copy can be prepared, Mr Dreyfus would have a right of access to the edited IGB under s 11 of the Act. However, if an edited copy cannot practically be prepared, the general right of access is displaced.
The Tribunal may grant access to so much of an exempt document as does not contain exempt matter (Swiss Aluminium Australia Limited v The Commissioner of Taxation for the Commonwealth of Australia and Ors (1987) 163 CLR 421 at 426). In Pratt Consolidated Holdings Pty Limited v Commissioner of Taxation [2011] AATA 907, the Tribunal considered the question of deletions under s 22 of the Act. Deputy President Forgie pointed out that the word used in s 22(1)(b) is that it is “possible” to make a copy with such deletions, that the copy would not be an exempt copy and would not disclose irrelevant information. She pointed out (at [185]) that the sole focus of this part of the inquiry is whether deletions are able to be made to a document that would otherwise be an exempt document, so that the result is no longer an exempt document. Workload considerations are not relevant. It is not relevant to enquire whether the resulting document would make sense or would be misleading. Section 22(1)(b) of the Act focuses on the mechanical task itself of deleting that which makes the document an exempt document. Workload consideration becomes relevant under s 22(1)(c) where the requirement is that it be ‘reasonably practicable’. The question then is whether the work is reasonably capable of being done, having regard to the nature and extent of the work involved in deciding on, and making, the deletions and the resources available to do the work (at [197]). Again, it is not relevant whether the document that remains after the deletions have been made would make sense to a reader.
At [3.85], the Guidelines summarise matters relevant to deletion namely; that if the document is categorised as exempt, consideration must be given as to whether it would be reasonably practicable to prepare an edited copy of the document for release to the applicant. The obligation to prepare an edited copy of a document so that it does not contain exempt or irrelevant content is subject to the following conditions as set out in [3.87] – [3.88]:
3.87 The obligation to prepare an edited copy of a document so that it does not contain exempt or irrelevant content is subject to the following conditions:
• it is possible for the agency or minister to prepare an edited copy of the document (s 22(1)(b))
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and
• it is not apparent, from an applicant’s request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)).
3.88 Applying those considerations, an agency or minister should take a common sense approach in considering whether the number of deletions would be so many that the remaining document would be of little or no value to the applicant. Similarly, the purpose of providing access to government information under the FOI Act may not be served if extensive editing is required that leaves only a skeleton of the former document that conveys little of its content or substance.
The Commissioner’s decision
The Commissioner concluded that it was not reasonably practicable to prepare an edited copy of the IGB, as the deliberative and non-deliberative matter is heavily intermingled. That is, it would not be reasonably practicable as part of the review process to work through the IGB, topic by topic, comment by comment, to decide on which side of the line each part falls. The Commissioner also noted that it would be difficult to make that assessment about the diverse contents of such a “comprehensive” document without receiving detailed submissions from the Department and conducting a lengthier review process.
In the Guidelines, the Commissioner relied upon his decision in the present case to state that a common sense view should be taken at deletions and that the purpose of providing access to government information under the Act may not be served if extensive editing is required but leaves only a skeleton of the formal document that conveys little of content or substance.
Mr Dreyfus’ submissions
Mr Dreyfus highlights what he says is the lack of clarity in the basis on which the Commissioner decided that the accessible information brief could not be extracted from the remaining information brief. That is, Mr Dreyfus submits that the Commissioner made his decision on the basis that the accessible and remaining parts of the Information Brief formed separate and distinct content categories and not on the basis of s 22 of the Act. However, Mr Dreyfus acknowledges that it is clear that the Commissioner decided that the basis for the decision that the accessible strategic brief could not be accessed was that it was not reasonably practicable to extract it from the remaining strategic brief.
Mr Dreyfus contends that, as there are four distinct content categories, the IGB can be provided according to those categories. He submits that it follows that there is no need to prepare edited copies. However, he does not explain, and it is not apparent, how this could be done without editing, if some but not all content within a category were deemed to be exempt.
The Secretary’s submissions
Dissecting the IGB
The Secretary contends that once the nature and purpose of an IGB is fully understood, it is impracticable to seek to dissect an IGB into more or less sensitive portions. He relies on Crowe, in which the Commissioner highlighted the difficulty in a freedom of information review process of deciding which portions of an IGB are exempt because ‘the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government’ (the Commissioner’s decision at [82]). The Secretary says that IGBs are a special kind of document deserving of special consideration in the context of the Act and that this proposition is supported by the Hawke review, which specifically recommended that the Act be amended to include a conditional exemption for IGBs, although this recommendation was not implemented.
It follows, in the Secretary’s submissions, that the entire IGB should be exempt as it is not practicable to dissect it into exempt and non-exempt portions.
Consideration
Justice Bell, in McIntosh v Department of Premier and Cabinet [2009] VCAT 1528 at [16], inferred that factual material can be so embedded in the deliberative content of the document that it is impractical to produce an edited document containing only the former. It follows, his Honour said, that such material cannot be said to be “purely” factual.

In the present case the Department has offered to assist if it is determined that the public interest requires access to part of the IGB over and above the pages identified by the Commissioner.
I agree with the Commissioner as to the parts of the IGB that he determined were not conditionally exempt. I have identified additional parts of the IGB that are not conditionally exempt. To that extent, I have varied the Commissioner’s decision. Otherwise, I agree with the Commissioner that the remainder of the IGB is conditionally exempt and that disclosure of such of the IGB would be contrary to the public interest. The parts of the IGB that are not exempt from disclosure are:
·In the Strategic Brief, the section entitled “Setting the Scene” and as much of the Table of Contents directed to that part (at pages 2 to 7), except for the paragraphs referring to cases decided and pending in the High Court and the “National Security” section.
·In the Information Brief:
oThe Table of Contents, the titles of each of the sections, information about the Department and the role of and responsibilities of the Attorney-General.
oThe first paragraph of the “Significant Litigation” section.
oThe section entitled “Portfolio Appointments”.
oThe “overview” of the “Your Portfolio” section.
oThe section entitled “Portfolio Agency Summaries”, except for the “Key Issues” section and the “Personal Information” found in that section.
oThe “Engaging Internationally” section.
The parts that are not conditionally exempt as so identified can, it seems to me, reasonably practicably be made the subject of editing.
To the extent that there is non-deliberative material within the conditionally exempt sections, I agree with the Commissioner that the deliberative and non-deliberative matter is inextricably intermingled. Accordingly that non-deliberative material cannot practically be made the subject of editing.
The Secretary offered to prepare the proposed edits, reflecting the Tribunal’s decision. The Secretary should prepare the proposed redacted IGB. Proposed orders, including orders as to costs, should be discussed between the parties and provided to my chambers within 14 days, together with any further submissions of no more than 2 pages.
The Secretary has asked that the Tribunal orders a stay of the decision under s 43(5)(b) of the AAT Act for a period of 28 days to allow the Secretary to appeal. If such a stay is sought, an order can be included in the proposed orders.
As the Secretary has asked for a stay and because I am varying the Commissioner’s decision, it is appropriate to give the Secretary an opportunity to consider these reasons in order to identify whether he considers that any part of the reasons should be redacted pending any appeal and to advise the Tribunal of his position (AAT Act s 35(4)).

I certify that the preceding 126 (one hundred and twenty -six) paragraphs are a true copy of the reasons for the decision herein of Justice Bennett
......[sgd]................................................
Associate
Dated 14 December 2015

Date(s) of hearing 28 July 2015

Counsel for the Applicant Mr Michael Lee SC and Mr James Mack.

Solicitors for the Applicant Maurice Blackburn

Counsel for the Respondent Mr Justin Davidson

Solicitors for the Respondent Australian Government Solicitor

Division	General Division
File Number(s)	2014/4437
Re	Mark Dreyfus QC MP
APPLICANT
And	Secretary Attorney-General’s Department
RESPONDENT

Tribunal	Justice Bennett
Date	14 December 2015
Place	Sydney

Date(s) of hearing	28 July 2015
Counsel for the Applicant	Mr Michael Lee SC and Mr James Mack.
Solicitors for the Applicant	Maurice Blackburn
Counsel for the Respondent	Mr Justin Davidson
Solicitors for the Respondent	Australian Government Solicitor