Brandis diaries case shows how Freedom of Information has been deliberately neglected

Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.

In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.

The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers.