McKinnon and DEPARTMENT OF FINANCE AND DEREGULATION
[2011] AATA 604
•31 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 604
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4494
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL McKINNON Applicant
And
DEPARTMENT OF FINANCE AND DEREGULATION 2
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Dr B Hughson, Member Date31 August 2011
PlaceBrisbane (heard in Canberra)
Decision The Tribunal recommends to the Attorney-General that the applicant’s costs in relation to the proceedings be paid by the Commonwealth. ..............Signed...............
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – recommendation regarding the payment of costs – successful applicant – benefit to general public – commercial benefit – recommendation that applicant’s costs be paid by Commonwealth
Freedom of Information Act 1982 (Cth) s 66
Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Fisse v Secretary, Department of the Treasury and Another [2008] FCAFC 188; (2008) 172 FCR 513
Re Anderson and Special Minister of State (No 2) [1986] AATA 81; (1986) 4 AAR 436
Re Vasta & Civil Aviation Safety Authority [2011] AATA 84
Secretary to the Department of Infrastructure v Asher [2007] VSCA 272; (2007) 19 VR 17
REASONS FOR DECISION
31 August 2011 Deputy President P E Hack SC and Dr B Hughson, Member Introduction
1.On 6 July 2011 in Re McKinnon & Department of Finance and Deregulation[1] we concluded that the applicant, Mr Michael McKinnon, was entitled to access, pursuant to the Freedom of Information Act 1982 (Cth), to three reports held by the respondent Department. We directed that the parties exchange and lodge submissions on costs within 28 days after the making of the decision.
[1] [2011] AATA 469.
2.Having considered those submissions we are of the view, for the reasons that follow, that we ought recommend to the Attorney-General that Mr McKinnon’s costs in relation to the proceedings be paid by the Commonwealth.
The legislation
3.The power to make such a recommendation comes from s 66 of the FOI Act. It is common ground that the section, as it read prior to amendments made by the Freedom of Information Amendment (Reform) Act 2010[2], governs this application. The section provided:
[2] No. 51, 2010.
“(1) Where:
(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney‑General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2)Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d)the reasonableness of the decision reviewed by the Tribunal.
(3)The Attorney‑General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.”
Additional factual matters
4.There being no doubt that Mr McKinnon was “successful” in his application, the issue is one of discretion having regard to, but not only to, the matters listed in paragraphs (a) to (d) of s 66(2) of the FOI Act. But before doing that we think it desirable to note some additional, and we think, uncontroversial, factual matters.
5.Mr McKinnon is a journalist. He is presently employed by a television network as the network’s FOI Editor. The reports of freedom of information cases in the Tribunal and the federal courts attest to the vigour of Mr McKinnon in his employment in that and similar positions.
6.The material establishes to our satisfaction that the three reports, subject of the decision, were provided (albeit indirectly) to Mr McKinnon on 4 August 2011. Reference to the Department’s website establishes that the reports were published on that website for general publication on 8 August 2011. So far as we are aware one of the reports, the Johnston report on indigenous expenditure, was the subject of a detailed (for television) story on the evening of 7 August 2011. There was a front-page story on the report the following day in a national newspaper and coverage of the contents of the Johnston report in other major newspapers. More recently, the Rosalky report was the subject of an article in the Canberra Times newspaper. There may have been other coverage of the reports; we do not suggest that it was limited to the foregoing which represents those matters noted by the Tribunal’s library.
The particular considerations
Financial hardship
7.Mr McKinnon does not contend that the payment of costs (or part thereof) would cause him financial hardship. He accepts, properly, that this consideration does not favour the making of a recommendation.
Benefit to the general public
8.There is controversy between the parties about the content of the benefit to the public question and the extent of any benefit found to arise from the decision.
9.Mr McKinnon first referred us to paragraph [37] of our decision where we said:
“There is no doubt that, aside from questions of Cabinet confidentiality, release of the reports would, as the original decision maker concluded,
‘…enhance the democratic process and make the public better informed and promote discussion of public affairs.’
The reports were self-evidently the product of considerable research. They were produced at a significant cost and address matters of great significance in the field of public administration.”
Then Mr McKinnon submitted that the decision,
“…delineates the limits of the principles of Cabinet confidentiality and their application to the exemption provisions of the Act following the repeal of the conclusive certificate provisions which had applied from the time of the Act’s first commencing in force until 2008.”
That delineation, it was submitted, was in the interests of the public and was, in part, the consequence of the application and not merely of the reasons for decision.
10.For its part the department submits that Mr McKinnon has conflated, contrary to authority, the distinction between a benefit which is the consequence of the application and a benefit which is the consequence of the reasons for decision. It then submits that the decision was no more than the application of well settled principles to the facts as found. Next, it is submitted that Mr McKinnon has not provided any evidence that the reports are “the subject of widespread public interest and concern” nor evidence,
“…which indicates that the contents of the documents are of particular interest to the public and that their disclosure would in some way benefit the public.”
11.The content of the benefit to be considered has been authoritatively determined by the decision of Beazley J in Cashman & Partners v Secretary, Department of Human Services and Health[3] where her Honour said:
“The Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community. In other words, the question is concerned with the consequences or result of the application for review, not with the Tribunal's reasons for decision: see also Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 48; Re Jacobs and Department of Defence (1988) 9 AAR 446 at 455.”
[3] (1995) 61 FCR 301, 307.
That being so we are relieved of the embarrassment of seeking to determine whether our decision involved merely the application of well settled principles to the facts as found or whether, as Mr McKinnon submits, the reasons have wider ramifications.
12.Next, we observe that we regard as unhelpful references to concepts such as “widespread public interest and concern”. To import such a test is to put an unwarranted gloss on the statute. The question posed is simple enough – will the decision be of benefit to the general public – it needs no gloss applied to it. In our view publication of the three reports will be of considerable benefit to the public.
13.As we observed in our original decision, the three reports were produced at considerable cost and addressed matters of great significance in public administration. It is true that Mr McKinnon has not put on any evidence that demonstrates that there is benefit to the public. But we do not consider that something as ephemeral as public benefit can be made susceptible to evidence in most cases. The assessment of benefit is a matter of impression, having regard to the contents of the documents in question. Moreover, as we have detailed, the Johnston report, at least, sparked considerable public debate.
14.One of the conclusions of the Johnston report, and the subject of much of the media attention since publication of the reports, was that the “investment” by the Commonwealth on indigenous-specific programmes, amounting to some $3.5 billion annually, “has yielded dismally poor returns to date”. The report notes that current Commonwealth, indigenous-specific programmes are “unduly complex and confusing”. It must surely be of benefit to the general public that these matters be discussed and debated openly, informed by the detailed work undertaken by Mr Johnston. It might be expected that governments at all levels will be encouraged to consider the detailed recommendations that might lead to a better return for the investment and better results for those for whom the programmes are designed.
15.The Jackson report examined the effectiveness of, and made recommendations for change to, the process of assessment of entitlements to disability support pensions. The annual costs of job capacity assessments were noted as being an amount in excess of $140 million. The Rosalky report dealt with the delivery of services by the Commonwealth to its citizens.
16.There is, we think, a self-evident benefit to the general public in having the product of such important work available to inform public debate and discussion, and to inform future policy development. We have no hesitation in concluding that there is a benefit to the general public from the publication of the three reports.
Commercial benefit
17.We find ourselves in a similar position to Senior Member Taylor SC in another of Mr McKinnon’s successful applications[4]. There was, no doubt, an enhancement of Mr McKinnon’s personal repute and a similar enhancement of the reputation of his employer. As to the latter, the newspaper reports made some play of the fact that the television network had obtained the “secret” government documents. And the Johnston report provided the network with an opportunity to present at least two stories. Yet they do not point to any tangible commercial benefit that is likely to accrue to either Mr McKinnon or his employer.
[4] Re Vasta & Civil Aviation Safety Authority [2011] AATA 84.
18.We think that on balance the question of commercial benefit does not tell against a recommendation for costs.
The reasonableness of the decision
19.We do not regard the decision made on internal review to be irrational, absurd or ridiculous. But that is not the question. As the Department submitted, the decision involved, primarily, the analysis of factual material and the application of established legal principles to those facts. That said, it seems to us that the decision-maker did not subject the evidence available to sufficient scrutiny. The affidavit of the decision-maker, particularly at paragraphs [17] and [18] in relation to s 34 of the FOI Act, demonstrates a somewhat confused factual analysis. We do not regard the case under s 34 to have been reasonably open on the facts. It ought to have been subject to more critical review and a closer consideration of what was said by Flick J in Fisse v Secretary, Department of the Treasury[5].
[5] [2008] FCAFC 188; (2008) 172 FCR 513 at [110].
20.The s 36 case ultimately turned on the distinction between the subject matter of Cabinet discussions and the deliberations of Cabinet. That was a distinction recognized in the Tribunal a long time ago[6] and recently re-affirmed by an intermediate appellate court on legislation in identical terms[7].
[6] Re Anderson and Special Minister of State (No 2) [1986] AATA 81; (1986) 4 AAR 436.
[7] Secretary to the Department of Infrastructure v Asher [2007] VSCA 272; (2007) 19 VR 17.
21.We regard this factor as favouring a recommendation.
Other relevant matters
22.We start by noting some matters that we do not regard as having relevance (contrary to the submissions of the parties). The first is that the hearing was undertaken in Canberra rather than in Brisbane where the application had been lodged. That course was convenient to Mr McKinnon, whose counsel was based in Sydney and to the Department, who, at that stage proposed to call two senior officials to give evidence. It fitted in with the traveling schedule of the Tribunal with little additional expense. Next we do not regard as relevant that a second, and more detailed, affidavit of Mr Angus was filed shortly prior to the hearing. It is common enough in litigation for further evidence to be put on once counsel briefed for the hearing has an opportunity to consider the evidence available. There is, though, an aspect of that which warrants consideration. We discuss that below.
23.There are a number of matters that we consider to be relevant.
24.First we note that we gained considerable assistance from the submissions of counsel engaged by Mr McKinnon. We would not want to discourage applicants from engaging competent legal assistance by adopting a too miserly approach to a recommendation for costs.
25.Next it seems to us to be relevant that it was necessary for Mr McKinnon to make an application for a direction under s 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth). That application was occasioned by the taking of a too narrow view of what documents were “relevant to the review of the decision”. Given the basis on which the Department made its decision, the purpose for which the documents (or part thereof) had been brought into existence was plainly relevant and warranted consideration, seemingly not given, to the range of documents that might evidence that purpose.
26.Finally it seems to us to be relevant that the Department did not call any evidence dealing with the process of strategic reviews and that such material as was available to us was the product of Mr McKinnon’s research. In a case where the public interest is in issue the type of material produced by Mr McKinnon is the type of material that one might have expected to have been produced by the respondent who bears the onus of showing, relevantly, that disclosure was contrary to the public interest.
Conclusion
27.These matters then persuade us that we ought make a recommendation to the Attorney-General that Mr McKinnon’s costs in relation to the proceedings be paid by the Commonwealth.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr B Hughson, Member
Signed: .............Signed.......................................................
AssociateDetermined on the basis of written submissions
Date of Last Submissions 8 August 2011
Date of Decision 31 August 2011
Counsel for the Applicant Mr T Brennan (directly briefed)
Counsel for the Respondent Ms R GreycarSolicitors for the Respondent Clayton Utz
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