Case number: 180216
24 September 2018
On 13 October 2017, the applicant made an FOI request to the Department. He asked for copies of all records generated from 1 January 2010 to 31 December 2012 relating to commissioned officers and the "decision, introduction and application of" various legislation concerning the SPS. He said that he was seeking only records relating to the question of application or non-application of supplementary pensions type arrangements to PDF personnel joining the SPS on or after 1 January 2013. He also said that the search may be confined to any records held by primary decision makers at the level of Principal Officer and above.
The Department's decision of 28 February 2018 granted full access to eight of the 14 records it considered to be covered by the request. It refused three records and granted partial access to the remaining three, on the basis that the withheld information was exempt under sections 29 (deliberative process) and 42(f) of the FOI Act (records created by the Attorney General and/or his Office to which the FOI Act does not apply) .
On 12 March 2018, the applicant sought an internal review of the Department's decision. The Department affirmed its decision on 10 April 2018, in which it said that section 29 "in conjunction with section 30 [functions and negotiations of FOI bodies] provided appropriate grounds" for refusal. On 21 May 2018, the applicant sought a review by this Office of the Department's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Department, and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
This review is confined to whether the Department has justified its refusal to grant access to records 1 (in part), 8, 11 (in part), 12, 13 and 14 (in part).
The applicant argued during the review that further records should be covered by his request. I have no remit to consider this matter. The applicant sought an internal review of "the refusal or only part-granting of releasing the following records 1, 8, 11, 12, 13 & 14" and did not question the adequacy of the Department's searches. It is open to him to make a fresh request to the Department for any additional records he considers should exist.
Information outside scope of request - record 1
Record 1 is comprised of a cover email and an attachment ("Comments on Single Scheme Legislation") containing comments and queries on each section of the draft SPS Bill along with the official response. The Department says that the cover email and the first two pages of the attachment were considered relevant to the request. It maintains that there is no further mention of supplementary pensions in the rest of the attachment. Having examined it, I accept that this is the case. I find that the rest of record 1 is not covered by the request. I will not consider it further.
This Office's invitation to the Department to make submissions informed it that unless it explains otherwise and identifies relevant excerpts, the review will proceed on the basis that the Department considers all of the details withheld from the remaining records to fall within the scope of the request. It did not argue that any of the details withheld from records 8, 11 (in part), 12, 13 and 14 (in part) are not covered by the request. I am taking it that those details remain to be dealt with in this review.
Section 22(12)(b) - onus on Department to justify its refusal
Section 22(12)(b) places the onus on the Department to justify its refusal to grant access to the records. This Office invited submissions from the Department in relation to sections 29 and 42(f) and noted that its internal review decision does not identify the provision of section 30 on which it was relying or explained why it was considered to apply. In that context, this Office told the Department that, if it wishes to rely on exemptions other than sections 29 and 42, its submission should show how the requirements of the exemptions are met in this case, addressing the public interest where relevant. The Department's submission of 16 July 2018 relied on sections 29, 30(1)(b), 30(1)(c) and 42(f).
Section 29 - deliberations of FOI bodies
The Commissioner's approach to section 29
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the an FOI body proposes to make.
The Department says that the records relate to the deliberative process surrounding the drafting and passing of the SPS legislation in 2012, including consultations between the Departments of Defence and Public Expenditure and Reform and opinions offered by the Department of Defence in that regard. It says that many facets of the SPS and pension policy generally remain under consideration today and are often subject to negotiations with relevant trade unions or representative associations. It says that records relating to the original deliberative process must be evaluated for the purposes of the FOI Act in the context of current developments, processes and considerations.
The applicant's position is essentially that the records relate to a deliberative process that has now concluded. The Department says that RACO made a claim in March 2017 through the Conciliation and Arbitration (C&A) Scheme in relation to the SPS and supplementary pensions. It describes the claim as arguing that the introduction of the SPS breached a previous agreement between RACO and the Department of Defence regarding supplementary pensions. It also says that the matter of supplementary pensions under the SPS has been raised directly with the Department of Defence by other Defence Force representative associations on an ongoing basis, and at a meeting between the associations and the Departments of Defence and Public Expenditure and Reform within the last year. The applicant claims, however, that the Departments have refuted the RACO claim and say that the matter has been concluded.
The Department's submission describes the public interest factors it took into account in considering both sections 29 and 30. It says that the public interests in favour of the grant of access are transparency in the consideration given to matters that resulted in legislation passed in 2012 and in significant changes in public policy that has affected and will continue to affect individual public servants, their terms and conditions of employment and also pension benefits for public servants recruited since 2013. It appears to be saying that the public interest factors in favour of refusing access are the protection of positions taken by the Departments regarding the negotiation and determination of terms and conditions of employment that are a matter of ongoing negotiation (in which regard it again refers to the matter of supplementary pensions being the subject of an ongoing industrial relations process) and enabling the management of public service staff. It says it considers the grant of the request to be contrary to the public interest.
I accept that the records were prepared for and relate to the deliberative process concerning the introduction of the SPS. I find that section 29(1)(a) applies.
In considering section 29(1)(b), the FOI Act itself recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions. The factors outlined by the Department reflect a public interest in ensuring transparency in and accountability for decisions regarding the SPS in so far as the matters the subject of the request is concerned.
The Department has made no argument that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)). It says that the grant of access is contrary to the public interest.
Clearly, there is disagreement between the parties on the status of the claim made under the C&A Scheme by RACO regarding supplementary pensions for PDF personnel. Even if the deliberative process regarding supplementary pensions for PDF personnel (or, if this is the Department's position, related or broader pay and pension policy matters) is incomplete, it is not necessarily contrary to the public interest for access to be granted to the records at this point in time. Furthermore, the Department simply asserts that harm would be caused to that deliberative process by the grant of the request. It does not explain how, in the context of the particular records from 2010 to 2012, it considers that such harms could result from release.
It should be noted that section 11(3) requires FOI bodies, when performing any function under the Act, to "have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and "the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies". I have had regard to section 11(3) in making my decision.
I have also had regard to section 11(7)(b), which provides that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release." This, in my view, reflects the requirements of section 22(12)(b) that the Department in this case must justify its decision to refuse access to the records. It is well settled that mere assertions by an FOI body as to harms that might result from access to a record are not sufficient for the Commissioner to find that a particular exemption provision applies.
Overall, having considered the Department's submission and the clear requirements of section 29(1)(b), I do not consider it to have justified its position that the grant of access to the records would be contrary to the public interest. I find that section 29(1)(b) does not apply.
Section 30 - functions and negotiations of FOI bodies
Section 30(1)(b) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).
The Commissioner expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a "significant, adverse" nature (rather than, say, the "prejudice" standard contained in other FOI Act provisions). The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.
Section 30(1)(c) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2). Section 30(2) provides that section 30(1) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record.
The Department says that granting access to the records would compromise both Departments' management of the industrial relations framework, because the issues considered at the time of drafting the legislation are still at the fore of the ongoing engagement with representative associations (section 30(1)(b)). It says that access is "likely to" disclose positions taken by the Departments as public service employers during the consultation and drafting process, which are "likely to" reflect and inform positions to be taken in current considerations on a similar issue (section 30(1)(c)).
I have already described the public interest factors that the Department says it considered, which it maintains do not weigh in favour of the grant of access. However, I note that one consideration is described in terms of how the grant of access "may disclose positions taken".
I do not consider the Department to have justified its reliance on sections 30(1)(b) or (c). While it appears to argue that the grant of access would affect the ability of both Departments to manage staff and industrial relations matters, it does not explain how such harms could arise by reference to the content of the records. Neither does it explain why such harms could reasonably be expected to be of a "significant, adverse" nature.
The Department has not referred this Office to any specific details in the records that could reasonably be expected to disclose positions taken or plans used etc. for the purpose of any ongoing or future negotiations regarding the matter of supplementary pensions for the PDF or, if this is the Department's position, related or broader pay and pension policy matters. Even if disclosure of positions etc. could result from the grant of access to the records, the Department has not explained how this could harm any relevant negotiations.
I find that sections 30(1)(b) and (c) do not apply.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication, including confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
Although section 31(1)(a) was not relied on by the Department, I am obliged to apply mandatory exemptions where it is apparent to me that they apply. One part of record 14 comprises an email that was sent by the Department to an official in the Office of the Attorney General (AG), and which I am satisfied seeks legal advice. I find section 31(1)(a) to apply to this part of record 14. One sentence on the second page of record 13 discloses the nature of advice received from the Office of the AG, which I also accept is exempt under section 31(1)(a).
I must make it clear, though, that I see no basis to direct that further details be withheld from the records under section 31(1)(a) in the absence of argument from the Department.
Section 42(f) - Restriction of FOI Act
Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the AG or the Director of Public Prosecutions (DPP) or the Offices of the AG or DPP, other than a record relating to general administration. It does not require the consideration of the public interest.
While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the relevant Offices, such as records relating to personnel, pay matters etc. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation.
The Department is relying on this provision in relation to two emails in record 14, which originated from the Office of the AG. I accept that they do not relate to general administration of that Office. I find that the two emails are outside of the scope of the FOI Act further to section 42(f).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision.
I affirm its decision to refuse to grant access to two emails in record 14 under section 42(f). I find another email in record 14 to be exempt under section 31(1)(a). For ease of reference, the exempt parts comprise the three final emails in record 14. I also find one sentence on the second page of record 13 to be exempt under section 31(1)(a) (i.e. the final sentence between brackets in the third bullet point in an email on this page).
I annul the Department's decision to refuse access to records 8, 12 and 13 and the remainder of records 11 and 14 and I direct it to grant access to them.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.