Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water
[2024] ARTA 21
•21 November 2024
Applicant/s: Rex Patrick
Respondent: Secretary, Department of Climate Change, Energy, the Environment and Water
Tribunal Number: 2023/7886
Tribunal:Deputy President Britten-Jones
Place:Adelaide
Date:21 November 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant is entitled to access documents 1 to 10 subject to the concessions made by the applicant with respect to names and contact details.
................[SGD]........................................................
Deputy President Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION – review of decision of Secretary, Department of Climate Change, Energy, the Environment and Water with respect to documents relating to a liquid fuel emergency – respondent contends that material in the documents in issue is exempt from disclosure under conditional exemptions for Commonwealth-State relations (s 47B) and deliberative processes (s 47C) – consideration of evidence received as part of consultation process for the purposes of s 47B(a) of the FOI Act – public interest test with respect to deliberative material found to favour access – decision under review set aside
LEGISLATION
Freedom of Information Act 1982 (Cth)
CASES
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Jonathan Sequeira and the Australian Broadcasting Corporation (No. 3) [2023] AICmr 30
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719
Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505Australian Broadcasting Corporation and the Secretary, Department of Industry, Science, Energy and Resources [2022] AATA 1451
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)
Statement of Reasons
The applicant has requested pursuant to the Freedom of Information Act 1982 (FOI Act)[1] for access to documents relating to liquid fuel emergency response plans. Some of the documents requested have been released in full or in part. The documents that remain in contention are two sets of meetings of the National Oil Supplies Emergency Committee (NOSEC) from June and October 2022 (documents 1 and 2), a NOSEC Exercise Catalyst Report dated 29 November 2019 (the Exercise Report) (document 3) and seven manuals relating to national liquid fuel emergency response plans (the NLFERP Manuals) (documents 4 to 10). The Exercise Report and the NLFERP Manuals have been partially released in a redacted form to the applicant.
[1] All references to legislation are to the Freedom of Information Act 1982 unless otherwise stated.
The respondent has refused access (in part) to the Exercise Report under s 47C. A redacted version of the Exercise Report has been released to the applicant. The respondent has refused access to documents 1 and 2 (in full) and 4 to 10 (in part) under s 47B(a). A redacted version of the NLFERP Manuals has been released to the applicant.
The decision under review is dated 4 July 2023 but has since been altered so as to enable the applicant to access some further parts of the documents requested.
Background[2]
[2] Most of this background information comes from parts of the NLFERP Manuals released to the applicant.
Australia’s State and Territory governments have constitutional responsibility for planning and coordinating the response to fuel shortages within their territorial boundaries and have appropriate legislation and associated response plans in place to manage such emergencies. In the event of an actual or likely fuel shortage with national implications, the Governor-General may, when circumstances require, declare a national liquid fuel emergency under the Liquid Fuel Emergency Act 1984 (LFE Act). The Minister for Climate Change and Energy administers the LFE Act. The powers of the LFE Act primarily focus on periods of declared national liquid fuel emergencies and give the Minister and delegates certain wide-ranging powers relating to fuel across Australia.
The Commonwealth, State and Territory governments and the fuel industry fully recognise the potential risks and impacts of a disruption to liquid fuel supplies. To address this, the Commonwealth government, in partnership with State and Territory governments and the fuel industry, through NOSEC, has developed a comprehensive National Liquid Fuel Emergency Response Plan (NLFERP). The NLFERP details how Australian governments would respond to a fuel disruption with national implications and aims to ensure that, during a liquid fuel shortage, available fuel supply is managed and allocated in the most efficient and fair way, to help minimise the impacts of the shortage on fuel users and customers.
NOSEC was formed on 25 March 2002 in response to requirements under the LFE Act. The NOSEC membership comprises the Commonwealth, State and Territory governments, the Australian Institute of Petroleum, Caltex Australia, Exxon Mobil Australia, BP Australia and Viva Energy Australia. The Commonwealth government is represented by the Department of Climate Change, Energy, the Environment and Water and the Department of Defence. The task of NOSEC is to ensure that the Council of Australian Governments (COAG) Energy Council receives relevant advice and information on issues confronting national supply of crude oil and petroleum products. The role and strategic focus of NOSEC includes promoting the elements and role of the NLFERP and reviewing, developing and implementing strategies which enhance the nation’s capability to manage liquid fuel supplies continuity and respond to a national liquid fuel emergency. NOSEC reports annually, or as required, to the COAG Energy Council on its operations and its state of readiness to deal with a liquid fuel emergency. It provides a forum for sharing information between, and learning from the experience of, the Commonwealth, State and Territory governments and the oil industry, in relation to oil shortages. NOSEC meets as required to consult on major matters relevant to the management of a national liquid fuel emergency including the preparation and testing of the NLFERP.
In October 2019, NOSEC engaged in an exercise to test the capacity of its members to respond to a national liquid fuel emergency. Complete Crisis Solutions were engaged to facilitate the exercise over seven days. At the end of the exercise, the Exercise Report (document 3) was prepared.
The NLFERP comprises seven manuals (the NLFERP Manuals). The policy manual (document 5) is dated June 2019. The other manuals (documents 4, 6 to 10) are dated March 2020.
NOSEC held meetings on 16 June and 6 October 2022 and prepared minutes which are documents 1 and 2.
Statutory framework
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General: [3]
… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[3] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends 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.
To promote the objects in s 3(1)(b), s 11(1) provides that:
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.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)
If a document is exempt, the agency is not required to provide the document.
Section 11A(5) provides the following:
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 public interest.
Section 11B(3) outlines the public interest factors in favour of granting access to the document including whether the grant would:
(a)promote the objects of the Act (including all the matters set out in ss 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.
Under s 11B(4), a decision-maker must not take the following factors into account when determining whether the release of a document would 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;
(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.
Section 26A provides for the Commonwealth to consult with a State where a request has been made for access to a document that may be conditionally exempt under s 47B (Commonwealth-State relations).
In working out whether access would, on balance, be contrary to the public interest, the Tribunal must have regard to the Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (the FOI Guidelines).
It is apparent from the terms of Part 6 of the Guidelines that a balancing exercise is required which weighs up the factors favouring disclosure and the factors against disclosure. The FOI Guidelines say at [6.238]:
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, where on balance the public interest lies based on the particular facts at the time the decision is made.
As noted in Jonathan Sequeira and the Australian Broadcasting Corporation (No. 3)[4] and at [6.239] of the FOI Guidelines:
Access must be provided unless the degree of that harm is such that it outweighs the public interests in disclosure that underpin the FOI Act and apply in the particular case.
[4] [2023] AICmr 30 at [90]
Evidence
Martin Squire is Branch Head of the Energy Security, Crisis Response and Greenhouse Minimum Standards Branch of the Department of Climate Change, Energy, the Environment and Water. As delegate of the respondent, he made the original access refusal decision dated 4 July 2023 after engaging in appropriate consultations with members of NOSEC. Mr Squire affirmed an affidavit dated 28 March 2024 and gave oral evidence to the Tribunal.
Susan Morrison is an Assistant Director in an energy policy role at the Tasmanian government. She has reviewed the redactions made to the Exercise Report (document 3). Her involvement in the liquid fuel policy with the Tasmanian government began in 2016. She has attended various NOSEC meetings. She affirmed an affidavit dated 21 August 2024 and gave oral evidence to the Tribunal.
I note that the respondent adduced open evidence given by Mr Squire and Ms Morrison and did not tender any evidence on a confidential basis in support of the claimed exemptions under the FOI Act. It is understandable that these open affidavits were often expressed at a high level or in general terms so as to avoid disclosing the very information that is contained within the documents in issue. However, it is the respondent who has the onus of establishing that the Tribunal should give a decision adverse to the applicant.[5] If the respondent adduces evidence which amounts to bare assertions or conclusions without appropriate evidentiary foundations then the respondent runs the risk of not satisfying the statutory onus. This applies in particular to the conditional exemptions relied upon in this case which require consideration of the impact of disclosure of the specific passages redacted in the documents in issue. The evidence of the impact of disclosure must be directed to the actual content of the documents in issue. Sometimes the Tribunal will be able to determine the impact of disclosure by considering the document itself. Other times, evidence (either open or closed) will be required.
[5] Section 61(1)(b) of the FOI Act
In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information),[6] White J referred to the required standard of evidence as follows:
[84] … In many respects, a claim that a document is exempt from access under the FOI Act is similar to a claim that a document should not be produced on discovery, or adduced into evidence, on the grounds of public interest immunity, whether at common law or pursuant to s 130 of the Evidence Act 1995 (Cth). The authorities with respect to such claims have emphasised the need for proper supporting evidence. By way of example, in State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553 at [68], the Court of Appeal in Victoria said:
… The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.
[85] To similar effect, Flick and Perram JJ stated in Jaffarie v Director‑General of Security [2014] FCAFC 102; (2014) 226 FCR 505 at [26]:
The “weight” to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less “weight”, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the “weight” to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible – always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.
(Emphasis in the original)
[6] [2021] AATA 2719
In this case I have found that the evidence relied upon by the respondent fell short of what was required. The requisite impact of disclosure was not apparent from the content of the redacted passages and the evidence adduced by the respondent was generally at a high level in the nature of bare assertions or conclusions without evidentiary foundation and without reference to the specific contents of the documents in issue. The respondent failed to satisfy the statutory onus.
Section 47B - Damage to Commonwealth-State relations
Section 47B provides relevantly:
A document is conditionally exempt if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth; or
In this case there is no claim for exemption under s 47B(b).
Section 11A(5) of the FOI Act requires an agency to give a person access to a document which 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.
In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information),[7] White J considered some of the statutory concepts in ss 47B(a) and 11A(5) and said as follows:
[7] [2021] AATA 2719.
[216] The word “damage” in s 47B is not qualified by any adjective as to extent or character. In context, it seems apt to refer to forms of intangible damage: Diamond v Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 at [103]; Re Maher and Attorney‑General’s Department (1985) 7 ALD 731 at 742. It can also be taken to connote a less severe deleterious effect than “a substantial adverse effect”, which is the expression used in the cognate provisions in ss 47D, 47E and 47J of the FOI Act.
[217] On the other hand, s 47B(a) operates with respect to “damage”, which would preclude adverse effects which cannot be characterised as such, for example, effects which do no more than cause relationships to develop in particular ways, without being damaging. The damage need not be generalised damage to the relationship between the Commonwealth and the State: damage to the relations in some particular respect would be sufficient: Re Guy v Department of Transport (1987) 12 ALD 358 at 363.
[218] The term “relations between the Commonwealth and a State” in s 47B should not be understood as having a narrow conception. It is capable of encompassing the whole of the relationship between the Commonwealth, on the one hand, and a State or States …
[219] The expression “could reasonably be expected to prejudice the future supply of information” in the former s 43(1)(c)(ii) of the FOI Act was considered by Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 . Their Honours said, at 190, that the expression required “a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act”. This meaning was applied to the former s 33A of the FOI Act in Arnold v Qld , by Wilcox J at 616 and by Burchett J at 628.
[220] Cognates of the expression “could reasonably be expected to” have been considered in later authorities, resulting in some refinement of the reasons in Cockcroft. Perry J referred to these authorities in Secretary, Department of Prime Minister and Cabinet v Summers at [42] -[47] . In the view I take of the matter, it is not necessary to review those authorities presently. It is sufficient to indicate that I accept that the Tribunal is to proceed on the basis that s 47B(a) requires, in accordance with its terms, consideration of whether disclosure of the subject documents “would, or could reasonably be expected to” cause damage to relations between the Commonwealth and a State and that, if satisfied of either limb, the subject documents will be conditionally exempt.
[221] It was not suggested that there is any relevant distinction between the terms “disclosure” in s 47B and “access” in s 11A(5).
Matters of approach
…
[224] The prospect that disclosure of a document may cause damage to relations between the Commonwealth and a State does not of itself mean that the document need not be disclosed. The document may still be disclosable even if the disclosure would, or could reasonably be expected to, cause such damage. The document need not be disclosed only if a further condition is established, that is, that access to the document at the time would, on balance, be contrary to the public interest. That is to say, the FOI Act does not contemplate that all documents which would or may cause damage to relations between the Commonwealth and a State will be immune from disclosure.
[225] Accordingly, the Tribunal must consider two questions in the application of s 11A(5) and s 47B(1)(a):
(a) would disclosure of the subject documents cause, or reasonably be expected to cause, damage to relations between the Commonwealth and a State;
(b) if so, would access to the documents at this time, on balance, be contrary to the public interest.
[226] If the first question is answered in the negative, then the documents are not conditionally exempt and the applicant will be entitled to access to them.
The FOI Guidelines with respect to exemptions provides at [6.15]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The FOI Guidelines set out the types of “damage” contemplated by s 47B(a). The following specific, non-exhaustive, examples of “damage” are given in paragraph 6.26:
·interrupting or creating difficulty in negotiations or discussions that are underway, including in the development of joint or parallel policy;
·adversely affecting the administration of a continuing Commonwealth-State project;
·substantially impairing (but not merely modifying) Commonwealth-State programs;
·adversely affecting the continued level of trust or cooperation in existing inter office relationships; and
·impairing or prejudicing the flow of information to and from the Commonwealth.
Paragraph 6.27 of the FOI Guidelines provides that decision makers may also need to consider future working relationships where disclosure may, for example:
·impair or prejudice the future flow of information
·adversely affect Commonwealth-State police operations or investigations
·adversely affect the development of future Commonwealth-State projects
The potential damage need not be quantified, but the effect on relations arising from the disclosure must be adverse: paragraph 6.28 of the FOI Guidelines.
An agency cannot rely on a class claim contention; rather, each request must be considered individually with regards to the contents of the document: paragraph 6.11 of the FOI Guidelines.
Consideration as to whether the redacted material is conditionally exempt under s 47B(a)
The onus lies on the respondent to establish that the Tribunal should give a decision adverse to the applicant.[8] The respondent relies upon the evidence from Mr Squire to satisfy that onus with respect to documents 1 and 2 and 4 to 10.
NOSEC Meeting Minutes – documents 1 and 2
[8] Section 61(1)(b) of the FOI Act
In his affidavit affirmed 28 March 2024 Mr Squire deposed as follows in relation to the NOSEC meeting notes which are documents 1 and 2:
(a)attendance, participation in and contribution to NOSEC by all members is on the assumption that information is shared and discussed confidentially.
(b)The marking of “NOSEC-IN-CONFIDENCE” on documents 1 and 2 indicates that the information within those documents was shared by NOSEC members on a confidential basis.
(c)The kind of information that can be provided by members at NOSEC meetings.
(d)Disclosure of documents 1 and 2 would, or could reasonably be expected to, cause damage to relations between the Commonwealth and various states who are NOSEC members.
(e)The process of consultation in which he engaged with respect to the release of documents 1 and 2.
(f)Based on the responses received from South Australia, Queensland and Tasmania, disclosure of documents 1 and 2 would, or could reasonably be expected to, cause damage between the Commonwealth and at least those three states because it would cause them to reconsider and be more guarded in terms of their participation in NOSEC meetings.
In his oral evidence, Mr Squire confirmed that NOSEC meetings operate on a confidential basis to ensure there are robust exchanges between the participants. He was unable to identify an agreement imposing an obligation of confidentiality in relation to the NOSEC meetings but from his experience in attending the meeting there was an obligation of confidence. I accept his evidence that the participants in NOSEC meetings assume that information is shared and discussed confidentially.
There was evidence before the Tribunal of consultation with the participants of the NOSEC meetings, namely the States and Territories, The Department of Defence and the representatives of the fuel companies.
With respect to documents 1 and 2, ACT, Victoria, WA, NT and NSW raised no material objection to disclosure.[9]
[9] There was objection to disclosure of names but the applicant concedes the exemption to that extent
Mr Squire accepted that there were no specific concerns by the fuel companies relating to their commercially sensitive information but I note that the Australian Institute of Petroleum did express a general concern about release of the documents in issue on public interest grounds because of a claimed impact on the efficient and timely management of a liquid fuel emergency which is NOSEC’s core business.
The Department of Defence did not object to the release of the documents in issue.
The effect of the responses from South Australia, Queensland and Tasmania was that if documents 1 and 2 were released, it would inhibit their frankness and candour and cause them to reconsider how they would engage at future NOSEC meetings because they did not expect that their confidential information, and that of the fuel companies, would be released. None of these States refer to any specific information which is confidential to them in the minutes of the NOSEC meeting that if released would cause concern. Rather, the concerns are based on a general expectation of confidence which, if breached, would impact their approach to future meetings thereby affecting relations between the Commonwealth and the States.
For example, the response from South Australia says that the public disclosure of materials related to NOSEC could cause South Australian and other jurisdictional representatives to be less likely to share materials, particularly confidential materials. Tasmania said that the NOSEC meetings were predicated on the fact that the information discussed would be treated in confidence and that if material from the minutes were to be released, Tasmania would have to review the way in which it engages in and shares information at future meetings. These concerns are in effect a class claim based on an expectation of confidence with no reference to the contents of the minutes.
After the initial consult, Queensland, South Australia and Tasmania were asked, if the documents in issue were released, would they participate in NOSEC differently. The response from Queensland was that the current position is to “engage in the spirit of NOSEC” and that the appropriate disclosure of documents are matters for the relevant decision makers. As to the impact on the functions of NOSEC and the ability to respond to a national liquid fuel emergency, Queensland did not consider it appropriate to speculate and said that “it is intended for the Department to continue to provide information and documents to NOSEC on the basis that the disclosure of subject information would remain a Commonwealth decision”. The response from Tasmania and South Australia was to maintain their position that they would be more cautious in how they would participate in future NOSEC meetings.
Later in these reasons I will consider further the asserted consequence of reduced frankness and candour at future meetings, but I note at this point that the FOI Guidelines say at [6.250] that agencies should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.
At paragraph 49 of his affidavit, Mr Squire relied upon the responses from South Australia, Queensland and Tasmania to conclude that disclosure of documents 1 or 2 would, or could reasonably be expected to, cause damage between the Commonwealth and at least those three states.
The decision in Patrick and Secretary, Department of Prime Minister and Cabinet,[10] referred to earlier in these reasons stands for the proposition that any claim for exemption under the FOI Act must be articulated with rigour and precision and be supported by probative evidence.
[10] [2021] AATA 2719 at [84].
The Tribunal does not accept the States’ assertions of damage because they are expressed at a high level of generality without any specific reference to the contents of the documents in issue. In effect, they are class claims which the FOI Guidelines state cannot be relied upon when deciding whether to refuse access under a conditional exemption.[11] Further, the authors of the correspondence in which the concerns were raised did not give evidence to the Tribunal and were not available for cross examination. Accordingly, I give little weight to the concerns contained in the correspondence from those three States.
[11] FOI Guidelines at [6.11] and Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 at [230] to [244]
Similar to the evidence contained in the correspondence from the States, the affidavit of Mr Squire does not contain any concerns about the release of specific passages of the minutes. Mr Squire deposes at [42] and [52] of his affidavit to the information that “NOSEC meetings can include” (emphasis added) and what the information “may relate to” (emphasis added), and then he concludes that the disclosure of documents 1 and 2 would, or could, cause damage to Commonwealth-State relations. It is understandable that Mr Squire did not express himself with more particularity in his affidavit[12] so as to avoid revealing the documents in issue, but the respondent must adduce sufficient evidence to satisfy the onus. Evidence that the minutes were marked “NOSEC-IN-CONFIDENCE” and that there was an assumption of confidentiality at NOSEC meetings[13] are not sufficient to ground a finding that disclosure of documents 1 or 2 would, or could reasonably be expected to, cause damage between the Commonwealth and at least those three States.
[12] The respondent did not seek to adduce any evidence on a confidential basis
[13] See affidavit of Mr Squire at [40] and [41]
Further, it is not enough for Mr Squire to simply accept a bare assertion of damage expressed by a State without considering the effect of disclosing specific content of the document itself. Section 47B(a) focuses attention on the impact of disclosure of the minutes. It is drafted in similar terms to s 33 of the FOI Act which was considered by Perry J in Secretary, Department of Prime Minister and Cabinet and Summers.[14] Her honour said at [34] that:
the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[14] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The same can be said with respect to s 47B(a) namely that the criteria in the section turns upon cause and effect which can reasonably be anticipated. It follows that if it can reasonably be anticipated that the disclosure of the minutes would cause the requisite damage then the minutes will be conditionally exempt from disclosure.
The onus is on the respondent to establish the reasonably anticipated causal link between the disclosure of the document and the damage to the government relations. It may be relevant that a State, as part of the consultation process, asserts damage but the causal link must still be established. If the State did not express the claim for an exemption with the required particularity, then that affects the evidentiary conclusion reached by Mr Squire in his affidavit. As previously stated, I do not accept the proposition from the three States that disclosure of the minutes would, or could reasonably be expected to, cause the requisite damage in s 47B(a).
Under cross examination at the hearing Mr Squire did refer to some specific passages relating to ‘member updates’ from the minutes and the damage alleged to arise from disclosure. One of the passages referred to by Mr Squire related only to information from a State that had no objection to that information being disclosed. If there is no objection to the release of information relevant to a particular State then that would tend to indicate that no damage would arise from its disclosure. In any event, I have read the passages referred to by Mr Squire and I am not satisfied of the causal link.
From my reading of the minutes as a whole, it is apparent that they do not record significant details of sensitive information from the NOSEC meetings and I am not satisfied that the disclosure of any specific passages from the minutes would cause the States to change their behaviour at future meetings in the way asserted by them. If the information in the minutes is of a general nature then its disclosure would not be of concern. It follows that I am not satisfied that disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. This does not mean that access would be granted under the FOI Act to all information recorded in future NOSEC meetings. Some of the potential concerns raised by States may be valid but that would depend on the content of minutes from future NOSEC meetings and the evidence before any decision-maker.
Having had access to the minutes of the NOSEC meetings, it is not surprising to me that the majority of the participants did not express a concern about the disclosure of the minutes. The concerns expressed by South Australia, Queensland and Tasmania are not supported by a proper consideration of the minutes. It would appear that their concerns were directed to the disclosure of detailed and sensitive information of a nature that is not contained in the minutes. I consider that the three States and Mr Squire for the Commonwealth expressed opinions about the effect of disclosure of the minutes on a view of their content which is not borne out by an examination of the documents.
Trust and cooperation between members of NOSEC will not be undermined by a decision-maker acting in accordance with the FOI Act with the result that information from the meetings is disclosed. There is no breach of trust in that situation. It would be a different matter in terms of erosion of trust if one of the members decided to disclose the information but there is no suggestion of that in this case. The primary object of the FOI Act is to give the Australian community access to information held by the Government. Members of NOSEC would be aware that it was Parliament’s intention to increase public participation in Government processes which may result in their activities being scrutinised and reviewed. In this legislative environment, it is very unlikely that a lawful disclosure by a decision-maker would cause a member of NOSEC to react as suggested by South Australia and Tasmania. It is more likely that, as expressed by Queensland, they would continue to participate in NOSEC by providing information and documents on the basis that the question of later access will be a matter for a decision-maker pursuant to the FOI Act.
I conclude that documents 1 and 2 are not conditionally exempt under s 47B(a) of the FOI Act and that access to them should be granted to the applicant.
Public Interest – documents 1 and 2
Although not necessary, I would also find that disclosure of these documents would not, on balance, be contrary to the public interest. It follows that even if I were wrong about the documents not being conditionally exempt, I would find that access should be given to them under s 11A(5).
The FOI Guidelines consider the application of the public interest test to a document claimed to be conditionally exempt under s 47B(a):
[6.240] When applying the public interest test to a document considered to be conditionally exempt under s 47B(a), it may be relevant to take into account whether disclosure would, or could reasonably be expected to, cause damage to Commonwealth-State relations. However, the fact that damage may result from disclosure is not determinative of whether it would be contrary to the public interest to give access to the conditionally exempt document.[15] Other public interest factors may also be relevant (such as the desirability of allowing scrutiny of government activities).
[15] Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 [224]
Section 11B(3) provides a non-exhaustive list of factors that favour access:
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.
I consider that the factors in s 11B(3)(a) and (b) favour access. Disclosure of the documents in issue would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities. Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities. I consider that disclosure of the documents would inform debate on a matter of public importance. There is no dispute that issues relating to fuel security are a matter of public importance.
When considering the public interest, I give very little weight to the consequence of disclosure (asserted by the respondent) that participants in future NOSEC meetings would be less likely to participate and share information. In support, I refer to the FOI Guidelines which provide that:
[6.245] Prior to the FOI Act reforms of 2010, a common factor considered to weigh against access of deliberative matter (s 47C) was that giving access would inhibit the giving of frank and candid advice by public servants. Frankness and candour arguments have been significantly affected by the 2010 reforms to the FOI Act, as demonstrated by a number of AAT and Information Commissioner decisions.
[6.246] The ability of public servants to provide robust and frank advice (often referred to as frank and fearless advice) is still often identified as a public interest factor against access by decision makers. Decision maker should exercise caution if this is the only public interest factor identified as being against access.
…
[6.248] The Information Commissioner considers that frankness and candour in relation to s 47C may have some application as one public interest factor against disclosure in combination with other factors. However frankness and candour may be the sole factor where the public interest is clearly, heavily weighted against disclosure of a document of a minister, or a document that would affect the effective and efficient functioning of government.[6.249] Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.
[6.250] Agencies should therefore start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.
[6.251] The AAT has said there is an ‘essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government’s activities and ensuring that government may function effectively and efficiently’.
[6.252] While frankness and candour claims may still be contemplated when considering deliberative material and weighing the public interest, they should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.
Balancing the public interest – documents 1 and 2
Having given very little weight to the countervailing factors asserted by the respondent, it is my view that the public interest favours disclosure. I consider that giving access to the applicant would not be contrary to the public interest and, accordingly pursuant to s 11A(5) the respondent should release the material redacted under s 47B(a) to the applicant.
NLFERP Manuals – documents 4 to 10
In his affidavit affirmed 28 March 2024 Mr Squire deposed as follows with respect to the NLFERP Manuals which are documents 4 to 10:
(a)The NLFERP is confidential and is not publicly available. Documents 4 to 10 are each marked “CONFIDENTIAL” and have been treated by all NOSEC members as confidential.
(b)The process of consultation in which he engaged with respect to the release of documents 4 to 10.
(c)Based on the responses received from South Australia, Queensland and Tasmania, disclosure of documents 4 to 10 would, or could reasonably be expected to, cause damage between the Commonwealth and at least those three states because it would undermine the trust and cooperation that currently exists between the Commonwealth and the States. If any States chose not to participate openly or share information freely then Australia’s ability to respond to a liquid fuel emergency would be diminished and compromised. As such, disclosure is not in the public interest.
(d)Additionally, because the NLFERP sets out in detail the roles and responsibilities of NOSEC members during a national liquid fuel emergency, if disclosed, a malicious actor would be able to use the information contained within the NLFERP to gain an insight into the process that would be followed during a national liquid fuel emergency in Australia so that it could be disrupted. It is clearly not in the public interest for this information to be disclosed.
The effect of Mr Squire’s evidence is to rely on the concerns raised by South Australia, Queensland, and Tasmania as part of the consultation process. Having noted their concerns, Mr Squire concludes, without reference to any of the redacted passages in the NLFERP Manuals, that the disclosure of all or any of documents 4 to 10 would, or could reasonably be expected to, cause damage between the Commonwealth and at least three States, South Australia, Queensland, and Tasmania. Mr Squire was cross examined about whether he queried any of the responses received as part of the consultation process and he said that he had no reason for not accepting the advice from the States.
At paragraph 60 of his affidavit, Mr Squire deposes that the disclosure of the NLFERP Manuals would undermine the trust and cooperation that currently exists between the Commonwealth and the States and says that even if one State chose to not participate openly or to share information freely at future NOSEC meetings then Australia’s ability to respond to a liquid fuel emergency would be diminished or compromised. For the reasons expressed earlier in these reasons in relation to documents 1 and 2, I do not consider that trust and cooperation between NOSEC members would be undermined if a decision-maker later provides access to the documents in issue in accordance with the FOI Act.
I would accept that the consequence of a State limiting their future participation in NOSEC meetings, as deposed to by Mr Squire, is very serious but the issue for the Tribunal is whether this is the consequence that would, or could reasonably be expected to happen if the NLFERP Manuals were disclosed. The fact that the NLFERP Manuals are confidential and are not publicly available does not automatically mean that their disclosure would have this consequence. To assert that the consequence arises merely because of confidentiality is to assert a class claim without consideration of the contents of the manuals themselves. It is difficult to understand how States would not participate openly or share information freely in circumstances where public servants in those governments have an obligation to participate with frankness and candour[16] and the disclosure is not by a participant in breach of an assumption of confidentiality but rather by operation of the FOI Act. Consequently, I give very little weight to the assertion that trust and cooperation would be undermined or that States would reduce their participation.
[16] See FOI Guidelines at [6.245] to [6.252]
In addition to this class claim, Mr Squire relies on the evidence contained in the correspondence from the three States that expressed concerns about disclosure. The authors of that correspondence were not made available for cross examination and their evidence is limited to their relatively short and often general responses as part of the consultation process.
For example, South Australia says that the public disclosure of materials related to NOSEC could cause ‘representatives to be less likely to share materials, particularly confidential materials’ and that the impact of disclosure ‘could result in a negative impact on response effectiveness and reduce the readiness of government and industry with respect to a national liquid fuel emergency.’ This statement from South Australia is expressed at a very general level and does not assist the Tribunal to determine the impact of disclosure of the redacted passages of the NLFERP Manuals. It is noted that significant extracts from these manuals have been disclosed and yet there is no specific evidence directed towards the impact of disclosure of the redacted parts. The evidence of a general assertion that disclosure could have a negative impact is not sufficient for the respondent to satisfy its onus and I give it very little weight.
Queensland’s initial response refers to the “confidential planning documents” which “are commercial in confidence, with the nature of this information being identified as potentially relating to or being a matter of national security.” After the initial consult, Queensland, South Australia and Tasmania were asked if the documents in issue were released would they participate in NOSEC differently. The response from Queensland was that the current position is to “engage in the spirit of NOSEC” and that the appropriate disclosure of documents are matters for the relevant decision makers. As to the impact on the functions of NOSEC and the ability to respond to a national liquid fuel emergency, Queensland did not consider it appropriate to speculate and said that “it is intended for the Department to continue to provide information and documents to NOSEC on the basis that the disclosure of subject information would remain a Commonwealth decision”.
Tasmania says that the NLFERP Manuals in their entirety should not be released, but despite this blanket concern, significant extracts have been released. Further, Tasmania says that the information in the NLFERP Manuals ‘identifies Australia’s response plans for a nationally significant emergency’ and that its release ‘could compromise emergency response arrangements by exposing those arrangements to interference by a malicious actor.’
Mr Squire deposes ‘additionally’ that:
because NLFERP sets out in detail the roles and responsibilities of NOSEC members during a national liquid fuel emergency, if disclosed, a malicious actor would be able to use the information contained within the NLFERP to gain an insight into the process that would be followed during a national liquid fuel emergency in Australia so that it could be disrupted.
In his oral evidence, Mr Squire was concerned about releasing details of the planned response because vulnerabilities could be exploited by state actors. He said that state actors may exploit vulnerabilities in the NLFERP Manuals by using patchwork analysis and referred to recent threat assessment reports from Mike Burgess, the ASIO Director-General of Security, in support of his concerns regarding malicious state or lone actors.
The evidence of a potential impact on national security by malicious actors exploiting vulnerabilities if the NLFERP Manuals are disclosed amounts to no more than a bare assertion without reference to the contents of the manuals themselves and is not supported by adequate evidence. It is trite to note that if the release of the NLFERP Manuals raised a concern of national security then one would have expected a claim for exemption to be made under s 33(a)(i) of the FOI Act. One might also have expected evidence from persons with suitable qualifications and experience relating to national security issues. One might also have expected a concern to be raised by the Department of Defence who was consulted but raised no objection to the full release of the NLFERP Manuals.
The evidence of an impact on national security amounts to little more than a bare assertion without any particulars provided as to how disclosure of the redacted parts of the NLFERP Manuals would have the asserted impact. To say that this evidence is half-baked would be to put it too highly. I note that as a last-ditch effort, Mr Squire referred in his oral evidence for the first time to recent threat assessment statements from the Director-General of Security. Those statements[17] refer generally to a potential threat to critical infrastructure in Australia including energy networks but do not assist the Tribunal to assess the impact of disclosure of the redacted parts of the NLFERP Manuals.
[17] Exhibit 6
If the respondent wanted to raise a genuine claim based upon an impact of disclosure on national security then appropriate evidence beyond mere assertions was required. I refer again to Patrick and Secretary, Department of Prime Minister and Cabinet[18] and White J’s quote of the following apposite passage from Flick and Perram JJ in Jaffarie v Director-General of Security:[19]
The “weight” to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less “weight”, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the “weight” to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible — always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.
[18] [2021] AATA 2719 at [85].
[19] [2014] FCAFC 102; (2014) 226 FCR 505 at [26]
It follows that I reject the evidence adduced to support the respondent’s claim in so far as it based on national security grounds.
The balance of the evidence from Mr Squire including the responses from the States does not establish the necessary causal link between the disclosure of the redacted material in the NLFERP Manuals and the damage to government relations. The respondent has failed to satisfy its onus of establishing that disclosure of the NLFERP Manuals would cause, or reasonably be expected to cause, damage to relations between the Commonwealth and a State.
I have had access to the redacted parts of the NLFERP Manuals and I am not satisfied that their disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. Mr Squire’s opinion that the disclosure of the NLFERP Manuals would undermine trust and cooperation that exists between the Commonwealth and States is not borne out by an examination of the documents. The respondent’s onus is not satisfied by Mr Squire’s reliance on the assertions of the States.
I conclude that documents 4 to 10 are not conditionally exempt under s 47B(a) of the FOI Act and that access to them should be granted to the applicant.
Public interest – documents 4 to 10
Although not necessary, I would also find that disclosure of these documents would not, on balance, be contrary to the public interest. It follows that even if I were wrong about the documents not being conditionally exempt, I would find that access should be given to them under s 11A(5).
I consider that the factors in s 11B(3)(a) and (b) favour access. Disclosure of the documents in issue would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities. Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities. I consider that disclosure of the documents would inform debate on a matter of public importance. There is no dispute that issues relating to fuel security are a matter of public importance. Scrutiny by the public of a liquid fuel emergency response plan is in the public interest. Disclosure of the whole of the NLFERP Manuals will give comfort to the public that the government and the fuel companies are adequately prepared for any such emergency.
The disclosure of the redacted parts of the response plan in the NLFERP Manuals would reveal very little commercially sensitive information, nor would it prejudice the ability to obtain confidential information in the future. The respondent has failed to establish how disclosure of the particular redacted passages of the response plan would impact the effectiveness of any response to a liquid fuel emergency or how disclosure could be exploited by a malicious state actor.
Balancing the public interest – documents 4 to 10
Having given very little weight to the countervailing factors asserted by the respondent, it is my view that the public interest favours disclosure. I consider that giving access to the applicant would not be contrary to the public interest and, accordingly pursuant to s 11A(5) the respondent should release the material redacted under s 47B(a) to the applicant.
Section 47C – deliberative processes
Section 47C(1) sets out the general rule prescribing when a document will be conditionally exempt from disclosure on the basis it will disclose deliberative processes:
(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.Consideration as to whether material is conditionally exempt under s 47C – document 3
I turn now to a consideration of whether disclosure of the Exercise Report (document 3) would disclose deliberative matter. Section 47C has a broad application because it exempts (conditionally) documents the disclosure of which would disclose matter relating to opinion, advice or recommendation.
The applicant accepts that it is appropriate to exempt from disclosure any advice or recommendations in the documents in contention. I have considered the material that is redacted pursuant to s 47C in the Exercise Report and I am satisfied that it is deliberative matter and therefore is conditionally exempt. NOSEC, by its very nature, is an advisory body which does not itself make any material decisions relating to liquid fuel emergencies. The Exercise Report is only redacted in so far as it contains key recommendations together with observations and considerations which underpin the recommendations. I consider that the extent of the redactions are appropriate for the purpose of exempting material on a conditional basis under s 47C. The issue for the Tribunal with respect to the redacted material in document 3 is whether access would, on balance, be contrary to the public interest test in s 11A(5).
Public interest test – document 3
The Public Interest Factors for and against Disclosure
The respondent relies upon the evidence of Ms Morrison who considers that the release of the Exercise Report would be contrary to the public interest because it ‘would have the effect of disincentivising participation in future exercises’ and because it would expose vulnerabilities that may lead to reputational damage or harmful exploitation by hostile actors.
The respondent considers that this case is analogous to the decision of the Tribunal in Australian Broadcasting Corporation and the Secretary, Department of Industry, Science, Energy and Resources[20] where the documents in issue included a report relating to a scenario exercise concerning climate change used to stimulate innovative thinking concerning climate risk. The Deputy President in that case found that the release of the redacted portions of the report would be contrary to the public interest because they had the potential to inhibit debates and discussions thereby prejudicing the formulation of suitable policies for Australia’s climate change proposals. The facts in this case are very different because the evidence adduced by the respondent does not establish that disclosure of the redacted passages in the documents in issue would inhibit participation in NOSEC affairs.
[20] [2022] AATA 1451 at [122]
Section 11B(3) provides a non-exhaustive list of factors that favour access:
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.
I consider that the factors in s 11B(3)(a) and (b) favour access. Disclosure of document 3 would promote the objects of the FOI Act including by increasing public participation in Government processes and by increasing scrutiny of Government’s activities. Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities. I consider that disclosure of document 3 would inform debate on a matter of public importance, namely the security of national fuel supplies.
In an affidavit affirmed on 21 August 2024 Ms Morrison deposed generally as follows:
(a)NOSEC conducts regular emergency exercises to assist participants in improving the way NOSEC is prepared to consider arrangements in response to potential emergency situations.
(b)the value of emergency exercises is dependent on the frank and open sharing of information between the member jurisdictions and key industry members.
(c)disclosing document 3 or any future reports on liquid fuel emergency exercises would have the effect of disincentivising participation in future exercises.
(d)Tasmania has been able to provide information and documents to NOSEC which have contained confidential and/or market sensitive information without fear of this information being publicly disclosed.
(e)Disclosure of documents 3 would result in Tasmania exercising considerable caution when participating in NOSEC meetings generally, but in emergency exercises in particular.
(f)the information within document 3 potentially exposes vulnerabilities specific to the Tasmanian jurisdiction and disclosure may lead to reputational damage to the Tasmanian government.
(g)Tasmania would exercise caution in providing NOSEC with commercially sensitive information from local suppliers in the liquid fuel market. This would detrimentally impact the sharing of information between NOSEC members and the liquid fuel industry.
(h)If document 3 was disclosed, this may impact similar emergency exercises for other energy sources such as electricity and gas. If these were released, hostile actors could access sensitive information to detrimentally harm Australia’s energy security generally, not just liquid fuel.
Ms Morrison gave oral evidence to the Tribunal. She referred to the sensitive nature of liquid fuel supply chain issues and that if vulnerabilities were exposed by the release of the redacted information in document 3 then it could be used by someone who wished to disrupt fuel supplies. Under cross examination she said that members of NOSEC might not participate as fully if information that they provided on a confidential basis was later disclosed. She confirmed that certain redactions in document 3 identify areas of the NLFERP which needed improvement or were deficient and that release of that detail was not in the public interest. Ms Morrison expresses a concern that disclosure of the redacted parts of document 3 would expose vulnerabilities specific to the Tasmanian jurisdiction.
The passages of document 3 which have been redacted comprise the details of the recommendations which are derived from observations and considerations which themselves have been redacted. It is self-evident that disclosure of the recommendations and the underlying observations would reveal those areas that are in need of improvement. This may cause embarrassment to, or a loss of confidence in, the Commonwealth government, however, s 11B(4)(a) prohibits the Tribunal from taking into account that access to the document in issue could result in embarrassment to, or cause a loss of confidence in, the Commonwealth Government. Public scrutiny of the recommendations and the matters on which they are based may have a positive impact on the formulation of any response to a liquid fuel emergency.
It is also relevant that this is a report from 2019. The applicant makes the valid point that if the recommendation that exposes the vulnerability has been acted upon then there can be no harm from its disclosure. On the other hand, if the recommendation has not yet been acted upon then it would be in the public interest to disclose the information so that consideration can be given to why there has been such a significant delay in taking action.
I give very little weight to the consequence of disclosure (asserted above) that it would have the effect of disincentivising participation in future exercises. It would seem to me a remarkable proposition that Tasmania would not fully participate in future NOSEC exercises when they are so important to Tasmania and all the other States and Territories. Further, if the reduced participation amounts to a failure to provide robust and frank advice then it would likely be contrary to the obligations imposed on a public servant. In support, I refer to the FOI Guidelines which provide that:
[6.245] Prior to the FOI Act reforms of 2010, a common factor considered to weigh against access of deliberative matter (s 47C) was that giving access would inhibit the giving of frank and candid advice by public servants. Frankness and candour arguments have been significantly affected by the 2010 reforms to the FOI Act, as demonstrated by a number of AAT and Information Commissioner decisions.
[6.246] The ability of public servants to provide robust and frank advice (often referred to as frank and fearless advice) is still often identified as a public interest factor against access by decision makers. Decision maker should exercise caution if this is the only public interest factor identified as being against access.
…
[6.248] The Information Commissioner considers that frankness and candour in relation to s 47C may have some application as one public interest factor against disclosure in combination with other factors. However frankness and candour may be the sole factor where the public interest is clearly, heavily weighted against disclosure of a document of a minister, or a document that would affect the effective and efficient functioning of government.[6.249] Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.
[6.250] Agencies should therefore start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.
[6.251] The AAT has said there is an ‘essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government’s activities and ensuring that government may function effectively and efficiently’.
[6.252] While frankness and candour claims may still be contemplated when considering deliberative material and weighing the public interest, they should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.
Ms Morrison accepted that withdrawing Tasmania’s participation from NOSEC meetings and exercises would ‘be a big call’. Ms Morrison in her affidavit refers generally to Tasmania providing information and documents to NOSEC which is confidential and/or market sensitive information but she does not identify in her affidavit, by reference to the redacted passages in the Exercise Report, any information provided by Tasmania that falls within that category. In paragraph 12 she refers to a “possible” consequence of disclosure. She refers to ‘information within reports like Document 3’ (emphasis added) but she does not direct her evidence to the actual redacted passages in document 3. I find that the respondent has failed to satisfy the onus of establishing that giving access to the document would, on balance, be contrary to the public interest. Further, I have considered the redacted passages in document 3 and I do not consider that their disclosure would likely bring about such an extreme response.
Balancing the public interest – document 3
Having given very little weight to the countervailing factors asserted by the respondent, it is my view that the respondent has failed to satisfy the onus in relation to public interest. I consider that giving access to the applicant would not be contrary to the public interest and, accordingly pursuant to s 11A(5) the respondent should release the material redacted under s 47C to the applicant.
Conclusion
The applicant has been successful on his application with respect to the documents which were claimed to be conditionally exempt under ss 47B and 47C. The applicant is entitled to access the information redacted in all the documents in issue.
Decision
I set aside the decision under review made by the Secretary, Department of Climate Change, Energy, the Environment and Water dated 4 July 2023 (as later altered) and substitute a decision[21] that the applicant is entitled to access documents 1 to 10 subject to the concessions made by the applicant with respect to names and contact details.
[21] The applicant did not contest the decision under review in so far as it found that he is not entitled to access names and contact details.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
...............................[sgd].........................................
Associate
Dated: 21 November 2024
Date(s) of hearing: 11 and 12 November 2024 Applicant’s Representative: Self-represented Counsel for the Respondent: Eliza Bergin Solicitors for the Respondent: King & Wood Mallesons
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