The effect of the McKinnon Case

All this begs the question, If a conclusive certificate is issued on the grounds of non disclosure because of non public interest concerns , what else can I do? Well Hayne J in the case suggested that McKinnon could have applied to the Federal Court under judicial review, since he got the information from the Treasurer under the Administrative Decision (Judicial Review) Act, instead of appealing to the AAT. He could have argued on the grounds of an error of law or an improper exercise of power. 

The High Court has considered the possibility of judicial review of freedom of information decisions before. In the Shergold case, the Court held that the phrase “establishes conclusively” does not oust the jurisdiction of the Federal Court to judicially review a Minister’s decision to issue a certificate in a freedom of information case. However the costs involved may deter people from pursuing this option.

Well now we have covered all the legal considerations that arose from McKinnon’s case. So it’s time to consider some other issues.

During the lead up to the McKinnon’s cases, Labor took an interest in conclusive certificates. In June 2006, Labor Senator Kerry O’Brien asked the government Ministers to disclose how many certificates had been issued in the past 10 years they have held office. The reason why he chose to ask in parliament is that the information on how many conclusive certificates were issued is strangely absent from freedom of information annual reports.

Thirteen Certificates were disclosed from the period of October 1996 to 2006. Five were from the Treasury, three from the Prime Minster and Cabinet, two from Employment and Workplace Relations, one from Agriculture, one from Foreign Affairs and one from Veterans Affairs.  Information on controversial topics like David Hicks and workplace refused were refused on conclusive certificate grounds. 

Bannister also found that Labor when it held government during the time of 1983 to 1996, issued at least 29 conclusive certificates. That was how many cases the AAT had that involved Conclusive certificates. 

Pretty much conclusive certificates have been around for awhile and governments when in office, Liberal and Labor issue them when they feel like it.

Johan Lidberg conducted a thesis on the how FOI works in Australia. He analysed what the legislation was supposed to do, what is actually did, and the spin of the ministers in saying that FOI works as intended. The important thing of this thesis is the results he obtained.

• None of the three requests generated information within the framework (the only information obtained was incomplete and the department refused to do a further search on the matter).

• The turnaround time for the three requests was long (two months, six months and nine months respectively).

• The cost for processing the requests was high (initial quotes for the first two cases were $921.50 and $2692). This serves as a very effective deterrent to discourage requestors to follow the process since you end up paying regardless of whether you retrieve actual information of blanked out documents.

He found that the sticking point for the first two requests was that they departments have the right to determine what the public interest is. Therefore if opens the doors to very high processing fees since you only get a discount if the matter is regarded as public interest.  Journalists do not get discounts.

The free speech report given by Irene gave numerous examples of the high cost involved.

• The Herald sun abandoned a two year campaign seeking information about travel of federal politicians after it was quoted a fee of $1.25million, which amounted to 32 years of full-time work for a public servant.

• The National Tertiary Union was told an application about workplace agreements entered into by the university sector would cost $455, 000

• Charges for a request for documents relating to the telecard affair involving former Minster Peter Reith were quoted at $68,000.

• An application to the federal Department of Education for documents concerning South Australian school funding under the Investing in our Schools program was estimated to cost $20,904.

• Documents concerning vehicles leased by federal minsters and MPs involved charges of $3,307.95. A second attempt in 2007 to obtain access provided three cost options including $13,771.60 for the information sought. The documents without names of the MPs were provided for $51.14.

The report also gave examples of the delays in responding to FOI applications

• A request to the Department of Family services in 2006 took seven months.

• An application in 2005 to the Department of Defence for information about guarantees for the rights of Australian Citizens taking into custody overseas has not been determined.

• An application to the Department of Defence for documents relating to an investigation into forgeries of trainee work works at an air force was submitted in July 2006. Defence sought two advanced payments. One in December 2006 and another in July 2007. A two page brief was the only document received dated July 2006. Most details were deleted. It had taken a year to obtain that document.

These two reports done by Irene Moss and Johan Lidberg show the high costs and delay times concerning information released if released at all.

Another factor to consider is the attitude of the Ministers and bureaucrats with FOI.

The Freedom of information legislation aims are to:

• Enable people to participate in the policy and decision making processes of government

• Inform people of government functions and enable them to access decisions that affect them

• Open government activities to scrutiny, discussion, review and criticism

• Enhance the democratic accountability of the Executive

• Provide access to information collected and created by public officials.

Yet this is view of the Treasurer concerning freedom of information.

Costello claimed freedom of information laws were conceived so that citizens could know what the government knew about them and so they could correct any misinformation in there personal files. He then went on to say, “that is their use,” and lamented that some meddling newspaper editors had developed a practice of using FOI laws to seek documents relating to public policy matters.

Then to Alexander Costello’s view of FOI when he was a Minister.

“Freedom of information always seems a good idea when you are in Opposition but less so when you are in Government.”

Now consider the view of this senior bureaucrat, secretary to the Treasurer, Dr Ken Henry.

He said that as a result of FOI requests which he believed were motivated by a desire to either embarrass the Government and the Treasurer or the Department. Therefore communication on sensitive policy issues is likely to be verbal rather than written.

So if a senior bureaucrat has that belief, it’s feasible to believe that this sort of attitude is reflected with other public servants.

So this leads to the question what impact did the McKinnon’s case have on media’s effectives when working with the FOI Act. I would say that the impact is minimal. Up until McKinnon’s case conclusive certificates were issued before and after the case, right up until the end of the Howard government they were still being issued. At the last week of the federal election in November 2007, a case was brought before the AAT. The secretary of the Department of the Prime Minister and Cabinet issued a conclusive certificate preventing access to workplace law reform documents. The AAT upheld the certificates that there was reasonable ground for them.  They were being issued to suppress sensitive information. Howard’s government did it; Keating’s government did it as well. So it that sense, nothing changed on the media’s effectiveness. All the case proved was the once a conclusive certificate is slapped on, that’s it. It is game over.

The media is inefficient when it comes to freedom of information laws. Besides the conclusive certificate smackdown, there is also the issue of the high costs involved to access information, and the long delays involved. All of these three things, conclusive certificates, high cost, and long delays break the intent of the legislation. So instead of having access to information, you have access to incomplete or crappy information after paying ridiculous prices and waiting a very long time.

However this may change though because there was a change of government in November 2007. Labor was elected to government and the Liberal party was thrown out of office ignobly. Labor had made a promise to abolish conclusive certificates once elected and introduce a FOI commissioner. 

On the 26th of November 2008, Special Minister for State, John Faulkner introduced the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 in the Senate. It was given a first and second reading and then sent to the Senate Finance and Public Administration Committee. Their report is due back on the 10th of March 2009.

The explanatory memorandum explained that the purpose of the bill is to repeal the power to issue conclusive certificates in the FOI act and the archives act for all exemptions provisions where certificates may be issued. The effect of the repeal of conclusive certificates is that the AAT will undertake full merits review of all exemption claims. Existing conclusive certificates will be revoked when a new request for access is made to a record previously exempted by a certificate. It also instructs how the AAT on how to consider evidence brought before it.

So if this bill is passed and becomes legislation, McKinnon’s case may have actually made the media slightly more effective because the conclusive certificates will be abolished. Exemptions still exist for national security for example. The thing is though so far that no conclusive certificates have been issued so far during the Rudd term. So it’s safe to say for the time being that the Rudd Government is serious about abolishing conclusive certificates.

McKinnon while losing the battle in 2006, may end up winning the war. Conclusive certificates, which effectively were not able to be overturned, will be removed. The AAT without having to review the conclusive certificates will review normal exemptions only.

However until the issue of the long delays and the high costs to access information have been dealt with, freedom of information access will still remain dysfunctional. High cost affects the media effectiveness because the story might be too costly to pursue. Long delays may make the story not current, obtaining the information you need two years later will effectively kill a story. But this is all speculation because in reality, legally nothing has changed yet except that the Rudd government isn’t issuing conclusive certificate. So until the Bill is legislated, lower costs for access and lower delays for access are legislated, and the public service re-educated to comply with FOI and not frustrate it, the media will be ineffective when dealing with FOI.

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