Saturday, February 3, 2007

Peatling and Department of Employment and Workplace Relations

The decision by Deputy President GD Walker in Peatling and Department of Employment and Workplace Relations [2007] AATA 1011 (12 January 2007) is one that needs to be fiercely contested. As Matthew Moore indicated in his column “Public Interest Comes Second Again” if Professor Walker’s reasoning is allowed to go unchallenged then many journalists (unless they are from Professor Walker’s mythical country radio station that is only intending to use the FOI Act for a single request on a very narrow and local public interest issue) are going to be stymied by large fee estimations.

The result in Peatling, 15 months after the initial application, means that any major Australian media organization that takes a professional approach to FOI – appointing an FOI Editor, making several requests a week, producing stories that use any information released under FOI – will not qualify for any fee waiver no matter how compelling the public interest arguments supporting the release of the information.

In Deputy President’s Walker’s words at para 114 “where the request for access is made in the ordinary course of the media organisation’s business and there is no evidence that it could not proceed with the request if the charges were not waived or reduced” then all prospects of a fee waiver in the public interest are removed. Deputy President Walker in para 116 struggles to find two possible (and very unlikely) exceptions to his new sweeping “media organization” test for interpreting Section 29. In a rare feat the Deputy President is able to use de Tocqueville and Thomas Jefferson as stepping stones to his final position.

Deputy President Walker using a handful of tribunal decisions (most decided within the last few years) and the words from Paragraph 81 of Attorney-General’s Department Memorandum 29: Fees and Charges referring to “a commercial or other benefit” (Deputy President Walker’s emphasis) has now effectively barred the major media organizations in Australia from receiving fee relief and exposed journalists such as Matthew Moore and Michael McKinnon to the constant operational difficulty of going cap in hand to their bean counters for every major federal FOI request.

The Australian Law Reform Commission and Administrative Review Council Report in 1996 specifically rejected a ‘multiple track’ (para 14.13) approach to federal FOI fees. Indeed the ALRC/ARC preferred position was to charge according to the amount released.

Deputy President Walker’s decision ought to be challenged by The Sydney Morning Herald but the cost factor and the result in McKinnon’s case will most likely deter Fairfax. The challenge would be vigourously defended by the government, who according to Moore have spent over $200,000 already on this case. As McKinnon’s case demonstrated the Commonwealth government is more than willingly to rack up multi-million dollar legal bills.

There is no doubt that at a federal level the efforts of Michael McKinnon, and more recently Matthew Moore, have started to annoy Ministers and senior bureaucrats. The use of fees as a “shield” therefore has become a more attractive option. In the Peatling case , the department had rolled out several novel, and to use a moderate word , inventive arguments for refusing to waive a fairly excessive fee estimation. Matthew Moore and SMH’s lawyer Mark Polden managed to counter and win on every ground except two. Importantly they persuaded Deputy President Walker to follow the High Court’s lead in McKinnon and dismiss the credibility of the argument that information might be potentially misleading or confusing.

Unfortunately Deputy President Walker, quoting Justices Heydon and Callinan from McKinnon, gave further legs to the argument that the public interest is not well served by releasing information where material parts have been overtaken by events and are out-of-date. In doing so Deputy President Walker accepted that the argument was ‘rational’ and therefore acceptable. He ignored the particular circumstances of McKinnon (the interpretation of the specific and isolated requirements of Section 55) and failed to weigh that argument against arguments for release. In Peatling his approach made little difference because he combined all the arguments to find that Fairfax had on balance demonstrated that it would be in the public interest to waive fees if not for his new ‘media organization” test. However it is likely that we will see many more claims that information should not be released because it is outdated or redundant – an argument, in my view, resoundingly and convincingly rejected by Justice Ruth McColl in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84.

Other points from this case

The hiring of a senior partner in a major law firm to personally examine 2600 pages of documents – Tactic 12 in “How to undermine a FOI Request”

The switching of arguments for non-release between the internal review decision and the AAT hearing imposed a heavy burden on Matthew and Mark. Some of my students had carried out research for the earlier arguments which became redunant with the switch in the department's position.

The majority of the 2900 pages of documents were kept in various folders marked “Cabinet-In-Confidence” or “In-Confidence” and secured in locked filing cabinets. The documents included policy deliberations, printed out emails, spreadsheets, summaries etc of which only some were “developed specifically to produce information for use in a cabinet submission.” (Para 23)

Deputy President Walker at paras 62-63, seemed to indicate that the simple marking of documents “Cabinet-in-Confidence” gave them a strong prima facie entitlement to exemption.

From an information/record management perspective it begs the question about how efficient, or effective, is the practice of both physically and intellectually locking such a wealth of policy development information in restricted filing cabinets and under highly restricted classification access?

Australian courts and tribunals (especially legal members) seem to give an automatic deference to claims for sensitivity as a theoretical starting point rather than requiring a demonstration of the actual sensitivity of the documents in question. The tone of Deputy President Walker’s comments suggested that merely having these labels on the files was sufficient for him to decide against allowing access.

One observor has noted to me that " My only comment on the Peatling – DEWR decision is that Walker DP seems to have misconceived the public interest test in that he is saying the documents would be exempt so there is no public interest in their disclosure. The correct test in section 29 is whether, if the documents were released (even if they are never released), would that release be in the public interest? You will notice that Stephen Gaegler is very careful in his submissions not to take the approach that Walker has done. Clearly, Stephen understands the correct test. "

Harry Hammitt a US FOI commentrator outlines the position in the US

Media requests have always been presumed to have a higher public interest potential than the average request since reporters are generally pursuing something newsworthy and have a greater capacity to disseminate information publicly than does the average requester.

However, the press has never been
identified as a group in FOIA until the 1986 amendments. At that time, the fee provisions were substantially overhauled and Congress created three separate categories of requesters. The most preferential of these categories was for "a representative of the news media" and also included an educational or scientific institution.

This category, encompassing these
two discrete groups, can not be charged search time for locating records and can only be charged for duplication after 100 free pages. The public interest fee waiver standard (agencies can waive all or part of fees) was also changed from "generally benefiting the public" to "contributing significantly to public understanding of the operations or activities of government." Although OMB was given the job of writing guidance for the new fee provisions, the Justice Department immediately jumped in with an Assistant Attorney General's Memo interpreting the public interest fee waiver language as narrowly as possible. DOJ then proceeded to ram its language down the throats of most other agencies so that most agency regulations reflect DOJ's multi-factor analysis that makes it more difficult to get a fee waiver rather than easier. OMB finally provided guidance on the rest of the fee provisions and defined "representative of the news media" as someone who was involved in gathering and disseminating information of current interest to a discernible segment of the public.

When there was doubt, media requesters had to show the agency that they had
some kind of track record that would suggest they could publish or disseminate information. This has always made it somewhat more difficultfor free-lancers, particularly ones who are just starting their careers. In a case involving the National Security Archive in 1987, the D.C. Circuit ruled that they were a representative of the news media because they collected, analyzed, and published information. This ruling has been challenged a couple of times but has never been overturned. The bill that was sponsored in the last Congress by Sen. Cornyn (R-TX) and Leahy (D-VT) includes a provision that would recognize bloggers and internet journalists as representatives of the news media. The bill passed the Senate but only got of committee in the House so it has to be taken up again assuming that happens.

Peter Timmins also offers some interesting and informative comparisons between Australia - if the Peatling decision is allowed to stand - and the US position. See "
Media shouldn't cop this lying down"

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