Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The High Court of Australia ordered that documents relating to the refusal to issue a pardon for the sentence of a woman convicted of murdering her abusive husband must be provided to the woman. The Court held that access to documents which are exempted from the general rules of access to information under the Victorian Freedom of Information Act can be permitted when it is in the public interest to do so. The Court explained that the public interest should override otherwise privileged documents if an administrative Tribunal identifies that there is a high-threshold public interest and that the evidence is capable of supporting an opinion that the public interest requires that access to the documents be granted.
This case analysis was contributed by Right2Info.org.
In October 1996, Heather Osland, an Australian woman, was convicted of the murder of her abusive husband and was sentenced to 14 and a half years in prison. After multiple appeal applications against her conviction and sentence were dismissed, Osland submitted a petition for mercy to the then-Attorney General for Victoria. The petition was later denied by a newly elected Attorney General after consulting with the State Opposition and a panel of three senior counsel (paras. 1-3).
Osland then applied under the Victorian Freedom of Information Act 1982 (The FOI Act) for access to all of the advices provided to the Attorney General and associated departmental correspondence. A representative of the Secretary to the Department of Justice (Secretary) denied Osland’s request on the basis that the documents fell under legal professional privilege (para. 4).
Osland approached the Victorian Civil and Administrative Tribunal (the Tribunal) for a review of the access to information refusal and the Tribunal set aside the Secretary’s decision and ordered that Osland be given access to the relevant documents (para. 5). The Secretary then appealed the Tribunal’s decision to the Victoria Court of Appeal. That Court initially overturned the Tribunal’s decision and reinstated the decision of the Secretary of the Department of Justice. However, after a special leave to appeal to the High Court was granted the High Court ordered that the Victoria Court of Appeal had decided the matter without examining the relevant documents and had not considered that, in accordance with section 50(4) of the FOI Act, the public interest may require that access be granted. The High Court therefore remitted the case back to the Victoria Court of Appeal for further hearing (para. 5).
The Victoria Court of Appeal again set aside the decision of the Tribunal and upheld the Secretary of the Department of Justice’s decision that Osland should be denied access to the documents (para. 6). The case came before the High Court again to determine whether the Victoria Court of Appeal “did what was required of it on the remitter” (para. 6).
The central issue before the High Court was to determine under what conditions the Tribunal is permitted to grant access to exempted documents in the public interest.
The Court set out the legislative framework, and explained that the purpose of the FOI Act is to facilitate the right of access to information in Victoria (para. 8) and that the Act “creates a general, legally enforceable right to obtain access to documents of agencies and official documents of Ministers” but that “[t]he right does not extend to ‘exempt’ documents” (para. 7). The FOI Act sets out the categories of documents that are exempted, and section 32(1) exempts documents that would be “privileged from production in legal proceedings on the ground of legal professional privilege” (para. 10). Section 30 exempts “internal working documents” that “would be contrary to the public interest” (para. 10). Section 50(4) of the FOI Act confers powers on the Tribunal to review the decision of a public official not to grant access, and empowers the Tribunal to determine whether access to an exempted document would, in fact, be in the public interest (para. 11).
The Court noted that the FOI Act does not expressly define “public interest”, and referred to the Australian case of O’Sullivan v Farrer 1989 169 CLR 210 which had held that the phrase public interest “imports a discretionary value judgment to be made by reference to undefined factual matters” (para. 13). The Court also noted that the power to determine whether access to an exempted judgment should be granted “in the public interest” actually lies with the Tribunal and not the original public official who receives the access to information request (para. 14). The Court acknowledged that this is an unusual aspect of the legislation but rejected the Secretary’s argument that because it is unusual it can only be used in exceptional circumstances (para. 14). The Court said that in order to give effect to the purpose of the FOI Act – which is to “further, rather than hinder, free access to information” – section 50(4) of the Act must be interpreted as giving the Tribunal power to allow access to exempted documents if it is in the public interest, so long as the Tribunal has identified “a high-threshold public interest” (para. 14). The Court reasoned that requiring the decision-maker to identify this high-threshold within the legislative provision “does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power” (para. 14). Ultimately, the Court ruled that two conditions must be satisfied before such power can be exercised: (i) the evidence must be capable of supporting an opinion that the public interest requires that access to the documents be granted; and (ii) the Tribunal forms the opinion that that is what the public interest requires (para. 12).
In examining the public interest in the present case, the Court held that the public interest in protecting the legal privilege in the relevant documents “was capable of being put to one side against the public interest in disclosure” (para. 48). Accordingly, the Court decided that the high-threshold public interest standard was met and public interest considerations overrode the exemption of legal professional privilege, and accordingly granted access to the documents.
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