Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of information)

The Administrative Appeals Tribunal (AAT) considered a dispute between the Secretary, Department of Prime Minister and Cabinet, and Mr. Summers concerning a request for access to letters exchanged between Australian Prime Ministers and the Queen since 1 January 2013. Mr. Summers sought access to all such letters, which were received by the Queen in her capacity as Queen of Australia. The core of the dispute revolved around whether these documents were exempt from disclosure under the *Freedom of Information Act 1982* (Cth).

The AAT was required to determine two primary legal issues. Firstly, whether the letters were exempt under section 33(a)(iii) of the FOI Act, on the basis that their disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. Secondly, the Tribunal considered whether the letters were conditionally exempt under section 47C of the FOI Act, specifically if they contained deliberative matter and if their release would be contrary to the public interest. The Tribunal also had to consider the appropriate application of section 58E of the FOI Act regarding the production of documents for inspection.

In its reasoning, the AAT examined the established convention of confidentiality in correspondence between Australian Prime Ministers and the Queen, noting its importance in maintaining the neutrality of the Crown and facilitating frank discussions. The Tribunal found that this confidentiality convention is integral to the constitutional systems of other Commonwealth realms and is mutually expected to be strictly observed. The AAT concluded that the evidence established that disclosure of the letters would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth by undermining Australia's reputation as a trustworthy confidant. Furthermore, the Tribunal determined that, on balance, the release of the letters would be contrary to the public interest, despite a limited public interest in their disclosure.

Consequently, the AAT set aside the decision of the Office of the Australian Information Commissioner. The Tribunal ordered that the request for access to the letters be refused on the ground that the letters are exempt under section 33(a)(iii) of the FOI Act.