Freedom of information act Essay

The freedom of information act is designed to operate without judicial oversight, as is frequently stated. Most of the time, the FOIA can be used effectively without the need for court intervention; however, occasionally, individuals will go to court when using the FOIA encounters difficulties. Jasmine, for example, has chosen to challenge the Minister's office's decision to deny her access to the documents she had requested under the FOIA because of complications in her case. Jasmine is unaware that instances involving the FOIA act are unusually difficult to resolve. However, the litigant can always choose to settle the case out of court through a non-judicial review. The following section will discuss how Jasmine’s case can be settled through a non-judicial review.

When a government agency or minister denies an FOI applicant access to documents, the applicant has the right to appeal the decision under review rights provided by the FOI act 1982. Some of the review rights available for applicants include informal reviews, internal reviews, using an Ombudsman, using the FOI commissioner and a tribunal review. Jasmine can, therefore, choose one of these methods to appeal the decision made by the Minister to deny her access to the documents. An internal review is however not available in Jasmine's case given the fact that it was the minister who made the decision to deny her access to the documents. An internal review cannot be done if the chief officer or government minister made the decision personally. Usually, an internal review is done by an officer higher than the one who made the decision. In our case, the most senior officer, the minister, made the decision to deny the FOI request. As such, an internal review is not available for jasmine. Therefore, only three non-judicial reviews options are available for Jasmine to choose from; these include an external review, a merits review using an administrative appeals Tribunal, an investigation by the Commonwealth Ombudsman. Let us discuss each of these options in detail to determine which the best is.

The first option that Jasmine has is to apply for an informal review using the information commissioner. Such a review is known as the IC review; the information commissioner revisits the decision made in the FOI request and conducts a fresh investigation. The IC review is a good option based on the fact that the applicant does not have to follow the processes set out by the agency or ministry under investigation. All the applicant has to do is apply directly to the IC and the IC will conduct the review independently. During the application of the informal review by the information commissioner, Jasmine should provide details regarding the decision she is objecting as well as her contact details. Jasmine should also provide reasons as to why she is objecting to the decision. Jasmine should apply for the IC review within 60days of being noticed of the decision to deny her access. Another advantage of the IC review is that it is totally free of charge.

The information commissioner looks at all documents including the ones that an applicant has been denied access to. The IC also considers all events that have taken place since the original decision was made. The IC is a good choice for jasmine since he has the power to request anyone involved in the case to produce relevant information. The IC may also request participants to take an oath affirming that any information they provide is true. Following his investigation, the IC can either affirm the decision by the minister or refute the initial decision made and come up with a fresh one. The Information Commissioner also has the power to vary the initial decision that had been made. If Jasmine is not satisfied by the decision made by the IC, she can appeal the decision in court or use another informal review method.

The other avenue that Jasmine may use is consulting with the Commonwealth Ombudsman; the ombudsman helps solve complaints regarding unfair or unreasonable Australian government department behaviour. Jasmine believes that the grounds for denying her access to the documents she requested under the FOI were unreasonable. As such, she can consider talking to the commonwealth ombudsman to investigate and help resolve the case. Using the ombudsman is a good choice since his involvement is informal and hence complaints are resolved quickly. However, the ombudsman cannot override the decisions made by an agency or ministry. Instead, he seeks to resolve any complaints through negotiations and consultations between the disputing parties. The Commonwealth Ombudsman is however not a good choice in Jasmine’s situation since the minister has already declared that he will not allow Jasmine access to the documents. In addition, the ombudsman cannot investigate a case if the decision was made personally by the minister.

In case the Ombudsman is unable to solve the case in accordance with Jasmine’s requirements, he may recommend other avenues to resolve the matter. One such avenue is the administrative appeals tribunal (AAT). The AAT is an independent body and hence conducts independent merit reviews of decisions made different Australian government institutions. For instance, they can review decisions made by ministers, state governments, chief officers of different departments as well as the decisions made by different non-governmental bodies. The AAT can also review decisions by the Commonwealth Ombudsman. The AAT is allowed to handle cases regarding the denial of access to documents in accordance to section 55(1) (a); 55(1) (aa) or 55(1) (ab) of the FOI act. However, an applicant has to pay a fee for the AAT to review his/her case.

According to section 54 of the AAT Act, the time limit for applying for an AAT review is 60days from the day you receive the decision you want to be reviewed. Jasmine’s case will be reviewed under the freedom of information division of the AAT. The division has the power to affirm a decision previously made by a government agency. The AAT can also vary the decision by changing part of the decision. Also, they can set aside the decision while substituting it with another one. The AAT can also remit a decision to the previous decision maker for reconsideration in accordance to particular points that the agency might have noted. Jasmine would be making a good decision by trusting the tribunal review since they solve cases in an economical manner that promotes trust and confidence in the ability of the tribunal to make fair decisions.

Following an application for review of a decision, the AAT will first notify the ministry involved (the respondent) that a complaint has been filed. The respondent may call for a preliminary hearing to resolve any issues ahead of the tribunal’s hearing. For instance, they may call for an extension of time or for an application to be dismissed if they determine that the AAT has no jurisdiction to review the decision. If the application is valid, the respondent is notified to provide relevant documents in accordance with section 37 of the AAT act. The respondent should provide documents showing the reasons behind their decision and relevant documents that will help in reviewing the decision. The respondent should provide the documents 7days before the issue is heard in front of the tribunal.

The AAT will take a fresh look at everything including the decision that was made, the laws governing the decision, the facts involved as well as the agency policies. After the hearing the AAT makes legally correct decisions or, in instances where there is more than one correct decision, they make a preferable decision. In case the applicant is not happy with the decision by the tribunal, they can appeal in the Australian high court within 28days from the day the AAT issued their decision.

The best option for Jasmine is, therefore, an IC review; IC review is the best option given the fact that they can override a decision that has already been made by a minister. In addition, IC reviews are easy to apply for since the applicant does not pay any fees and also they are not limited by the policies of the ministry they are reporting; all the applicant has to do is apply for a review directly at the Information commissioner’s office. In case the decision following the IC review is not satisfactory, Jasmine can turn to the AAT tribunal that can override the decision by the IC. For instance, if the decision was that the document is fully exempt from the public, the AAT can decide that the document should not be exempted and therefore should be released to Jasmine in part or in full.

Judicial Review

Jasmine has grounds to take her case to court given the fact that some parts of the document she has requested for are covered by the FOI act. The minister denied Jasmine access to the documents giving a reason that it would take a lot of time to determine which pages of the book are covered under the FOI act. Jasmine can consider taking her case to the federal court or the high court since they have jurisdiction to handle cases regarding the interpretation of the constitution. The freedom of information act is part of the Australian constitution and hence it should be taken to the high court. Also, the high court deals with cases where the principle of law in question is of major importance to the public. Freedom of information cases are of major public importance since they relate to government transparency. Further, appeals from other courts and tribunals are heard by the high court; as such, it is the court with the most jurisdictions to handle Jasmine’s case.Let us look at some cases involving freedom of information act to predict what the court decision might be in Jasmine’s case.

The first case is that of Paul Farrell and Prime Minister of Australia (Freedom of Information) [2017] AlCmr 44. The applicant was a journalist, Mr Paul Farrell who was complaining against the respondent, Malcolm Turnbull, the prime minister of Australia for denying him access to information regarding his affairs as the prime minister. The prime minister refused to answer Mr Paul’s request and hence Paul concluded that the prime minister’s office (PMO) had refused his application. Paul, therefore, sought the help of the IC in regards to the decision made by the prime minister. The PMO gave the reason that processing the request by Mr Paul would interfere with the functions of the prime minister and his office and therefore called for Paul’s request to be denied. The IC, however, made the decision to set aside the decision by the prime minister based on the fact that there were no reasonable grounds to deny Paul access. The decision by the IC was in accordance with section 55 of the FOI act 1982. The PMO was, therefore, requested to process Paul’s request and grant him access to the documents.

Another case is that of The Australian and Prime Minister of Australia [2016] AlCmr 84. The applicant had requested for the official diary of the prime minister. The PMO denied the request giving the reason that parts of the document contained the names and information of people; disclosing such information would be unreasonable since they are of no public interest. The document was therefore exempt from public access according to section 47 of the FOI act. The applicant sought the help of the IC who decided in favour of the applicant. The IC decided that the Prime minister should allow the applicant access to the part of the document that was covered under the FOI act. The PMO was instructed to delete entries relating to meetings, political parties and other information that was exempt according to section 22 of the FOIA. The PMO was allowed to edit the document only to the extent that exempt entries are removed from the document. The office should then allow the applicant access to the edited document.

The other case is that of Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995. The case was heard by the administrative appeals tribunal of Australia where they decided to return the matter back to the attorney general for reconsideration. The AG did not reconsider the decision but instead went to the federal court to appeal the decision by the tribunal. The court rejected the argument by the AG and hence he was still instructed to reconsider his decision. The applicant had filed the case with the tribunal since the AG had denied him access to the weekly diary giving the reason that it would have interfered with daily duties because it would take hundreds of hours to process. The decision to refuse access was based on section 24 and 24AA of the FOIA which allows access to be denied. The AAT, as well as the federal court, determined that the AG had failed to exercise the onus in accordance with section 61 of the FOIA. There was no practical reason for refusing access and hence the decision by the AG had to be set aside. The AAT did not call for immediate access to the document but rather for the AG to reconsider his decision. The federal court, on the other hand, found no legal errors in respect to the decision by the AAT hence they decided that the appeal should be dismissed.

Based on the cases above, Jasmine can make a strong case in the high court regarding the decision by the minister to deny her access to the documents she had requested. First and foremost, parts of the document requested are covered by the FOIA and hence it would be unfair to deny Jasmine access to the documents. In addition, the reasons given by Jasmine to justify her request were based on the greater good of the public. She wants access to the document to determine why the government is raising fees and cutting the budget given to the schools. Section 11A of the FOIA says that an applicant should be granted access to documents if access promotes the objectives of this act, which are to promote public interests. S.11A is also known as the public interests section since it exempts documents from being accessed if the access will be contrary to public interests. Jasmine requested the documents as a matter of public importance hence there is reasonable ground that she should be allowed access to the document in question.

The minister can, however, challenge Jasmine by stating that section 47E and 47F of the FOI act exempt the document from public access. S.47E asserts that documents are exempt if they can affect the proper functioning of an agency after disclosure. S.47F, on the other hand, provides that a document is exempt if its disclosure will expose private and personal information regarding people who are not of public interest. The minister can argue that sorting out the parts of the book covered by the act will take a lot of time; the burden of sorting out the document will fall on the chief of staff hence diverting his resources and therefore affecting his ability carry out office activities. Also, the document contains private information regarding department officials and cabinet ministers; the information is not for intended for the public and hence it would be wrong to grant Jasmine access to the document.

Jasmine’s argument is stronger than that of the minister and hence it may challenge the administrative decision to deny her access to the document. First, her reasons for wanting access to the document are based on public interests; the information will significantly improve government transparency regarding their decision to raise fees and cut school budgets. In this way, the public will be able to trust the government. Secondly, parts of the document are covered by the act and therefore they should be available to applicants under the FOI act.

The court can refer to the Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 and The Australian and Prime Minister of Australia [2016] AlCmr 84 cases while making the final decision. In these cases, the judge ruled in favour of the applicant since the respondents did not provide a compelling reason to deny access to the requested documents. Based on these two cases, the court can choose from two possible solutions to the case. The court can either instruct the minister to reconsider the decision or he can provide Jasmine with an edited copy of the document that does not contain the information exempted under sections 47E and 47F of the FOIA.

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