Two of our associates working from the testimony provided by the Information Commissioner during the recent Senate inquiry into the Pel Air began an exploration of the way in which the FoI system operates and how it may best be used. Initial enquiries began with a detailed examination three individual cases, the results prompting further examination of an additional four cases from within the group.
To expand the analysis we would like to establish contact with those within the wider community who have experienced difficulty satisfying their requests for documents made under the FoI Act. Particularly those who have been refused access to documents under the following sections :-
42. (Documents subject to legal professional privilege).
47F. (Public interest conditional exemptions—personal privacy).
47G. (Public interest conditional exemptions—business).
Should you wish to participate, please make initial contact through the Pprune PM system. Please note that we do respect your anonymity and there will be no discussion related to an event on Pprune, or any other public forum. It is intended that the final report will be of a statistical and 'generalised' nature rather than personal (case by case) analysis, primarily focused on sections 5.134 through to 5.138.
The ‘
real harm’ test
5.134 Agencies are advised not to claim exemption for a document under s 42 unless it is considered that ‘real harm’ would result from releasing the document. A ‘real harm’ criterion is not an element of the common law doctrine of legal professional privilege, but has been acknowledged within government as a relevant discretionary test to apply in FOI administration.101 The phrase ‘real harm’ distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency. However, an agency’s decision on the ‘real harm’ criterion is not an issue that can be addressed in an IC review. Section 55L of the FOI Act provides that the Information Commissioner cannot decide that access should be given to exempt matter in a document.102. Copies or summary records
5.135 Records made by officers of an agency summarising communications which are themselves privileged also attract the privilege. Privilege may also attach to a copy of an unprivileged document if the copy was made for the dominant purpose of obtaining legal advice or for use in legal proceedings.103
Exception for operational information
5.136 A document is not exempt under s 42(1) by reason only of the inclusion in that document of operational information of an agency (s 42(3)).
5.137 Agencies must publish their operational information under the information publication scheme established by Part II, s 8 of the FOI Act which commenced on 1 May 2011. ‘Operational information’ is information held by an agency to assist the agency to perform or exercise its functions or powers in making decisions or recommendations affecting members of the public or any particular person or entity or class of persons or entities (s 8A). For further information see Part 13 of these Guidelines.
Severance
5.138 If only part of a document contains material that is privileged under s 42, s 22 requires disclosure of the part that is not privileged.104
P18. a.k.a. Blind Freddy.