Office of the Premier v The Herald and Weekly Times Pty Limited

The case before the court involved the Office of the Premier, acting on behalf of the Premier of Victoria, and The Herald and Weekly Times Pty Limited, a media company. The dispute centred on whether a diary belonging to the Premier’s Chief of Staff constituted an 'official document of a Minister' under the Freedom of Information Act 1982, and thus whether it was subject to a legally enforceable right of access. The matter was heard and determined in the Federal Court of Australia.

The central legal issue was whether the diary of the Premier’s Chief of Staff met the criteria for being an 'official document of a Minister' under the Act. Specifically, the court had to determine whether the document was in the 'possession of a Minister', meaning in actual or constructive possession of the Minister in their capacity as such, and whether it 'related to the affairs of an agency', meaning it bore a direct or indirect relationship to the business and activities of an agency, its area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including Ministerial advisers from the Office of the Premier. These criteria were pivotal in assessing whether the diary was subject to the Freedom of Information Act.

The court found that the diary did not meet the criteria for being an 'official document of a Minister'. It concluded that the diary was not in the actual or constructive possession of the Minister in his capacity as such, and it did not relate to the affairs of an agency in the necessary way. The diary, while potentially containing information pertinent to the Premier’s activities, did not directly relate to the business and activities of an agency, nor did it pertain to arrangements between government departments or external entities in the required manner. Consequently, the application for leave to appeal was granted, but the appeal was ultimately dismissed. The court remitted the request to the Office of the Premier for reconsideration in accordance with the law.