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ALRC: Public interest balancing act

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What exactly is meant by the “public interest” will be an area of continuing debate in the calls for reform to the FOI Act.

Courts and administrative decision-makers are often called on to consider what is in the “public interest”. Such considerations may arise, for example, in determining whether sensitive information should be made public or whether a person has a defence to an otherwise wrongful action. The Australian Law Reform Commission (ALRC) has considered this concept in several inquiries, including in the context of an exemption from the Privacy Act for journalists reporting on matters of public interest; whether there should be a “public interest” defence to sedition offences; and the balancing of competing public interests in allowing information protected by client legal privilege to be used in federal investigations.

The ALRC has also recently considered the definition and role of the public interest under the Freedom of Information Act 1982 (Cth) (FOI Act). In this case, the public interest is not just a theoretical and abstract concept; it plays an essential role in the FOI Act, dictating when a document may be disclosed. However, the role of the public interest has had its share of debate. Part of this debate stems from the lack of any statutory definition of the term itself.

The logic behind this failure to define is reasonable. The ALRC stated in its report Open Government: A review of the federal Freedom of Information Act 1982 (ALRC Report 77, 1995) that the public interest changes over time and can differ in each situation, making it impossible to reach an accurate definition that is still flexible enough to accommodate such variation. The courts have also recognised this quandary, opting to determine the public interest subjectively and not by application of any ascertainable criterion.1

The FOI Act has a general presumption in favour of access to information (s11) qualified only by exceptions and exemptions necessary for the protection of essential public interests (s3(1)(b)) contained in Part IV of the Act. While there is no uniform criterion for the exemptions under the FOI Act, the exemptions can be broken into three broad categories, each containing a different application of the concept of the public interest.

The public interest balance test

The public interest is most prominent in exemptions that expressly require what is called a “public interest balance test”. These exemptions, such as the internal working document exemption (s36), require the decision-maker to consider whether disclosure is contrary to the public interest.

The “balance” component of these tests weighs the public interest in disclosure against the public interest in withholding the document. The best known application of this test resulted in what are commonly called the “Howard factors”.2 These factors include consideration of the seniority of the person generating the document – on the basis that the higher the office, the greater the sensitivity of the issue and the greater the relation to the formulation of public policy; and whether disclosure would prohibit frankness of pre-decision deliberations, lead to confusion and unnecessary debate, and unfairly not contain the reasons for a decision later taken.

While the “Howard factors” are not a conclusive test of whether a document is exempt, where they are present it is suggested that disclosure is less likely to be in the public’s interest. These factors have angered critics, with the argument made that the presence of these factors may actually make disclosure of the information more likely to be in the public interest, rather than less.

Class-based exemptions

Class-based exemptions3 operate on the principle that the information is exempt by virtue of its subject matter. Rather than weigh the merits for and against, it has already been determined that disclosure of information in this class is not in the public interest. The standard example of a class-based exemption is the Cabinet document exemption (s34). It is considered that disclosure of Cabinet documents would breach the “Cabinet oyster” of secrecy and undermine the collective Cabinet decision-making process.4 The operation of class-based exemptions is one of strict principle; it does not matter that the consequences of disclosure may be infinitesimal, the harm comes from the loss of Cabinet security itself.

It is worth noting that the home of the Westminster system, the UK, does not have an absolute exemption for Cabinet documents. 5 There, they are subject to a qualified exemption, which means that the authority must balance the public interest in protection with the public interest in disclosure, taking into account factors such as the promotion of government accountability.6

Harm-based exemptions

The final category of exemptions can be classed as harm-based. A document will be exempt under this section if a minister or agency can demonstrate a reasonable likelihood that its disclosure would or could reasonably be expected to result in harm.7 This approach does not involve a balancing test; the document is exempt provided its disclosure would result in harm. Any question of whether the public interest in disclosure outweighs the harm is irrelevant.

Conclusion

The issue of what exactly is meant by the “public interest” will be an area of continuing debate in the calls for reform to the FOI Act. The ALRC’s Report 77 served as a reminder that the purpose of the FOI Act is to make government more open and accountable by providing a right of access to information wherever possible. Now, just as back then, the question may be asked whether the Act has achieved, and is continuing to achieve, what Parliament intended.

MICHAEL EVRY is undertaking a student internship at the Australian Law Reform Commission. For further information ph (02) 8238 6333 or visit the website http://www.alrc.gov.au.

1. R v Trade Practices Tribunal; ex parte Tasmanian Breweries Ltd (1971) 123 CLR 361.
2. Re Howard and Treasurer of Commonwealth of Australia (1985) 7 ALD 626.
3. See, for example, ss34, 35 and 47.
4. Whitlam v Australian Consolidated Press (1985) 60 ACTR 7, 15-16 (per Blackburn CJ).
5. Freedom of Information Act 2000 (UK) s35.
6. Information Commissioner’s Office (UK), Freedom of Information Act – Awareness Guidance No 24 V1, October 2004 (Updated January 2006).
7. See, for example, ss33, 33A, 37, 40 and 44.

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