Crowe and Department of the Treasury [2013] AICmr 69- An analysis

This article provides an analysis of the case Crowe and Department of the Treasury [2013] AICmr 69, which relates to an application for access to documents under the Freedom of Information Act, 1982. The article discusses the provisions of Section 11B of the Act and the factors that determine whether access to a document should be granted or not. The article also highlights the judge's observations on the traditions of the processes employed when a Minister receives briefs from a public service and the position of the author of the document.

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Crowe and Department of the Treasury [2013] AICmr 69- An analysis
The case relates to an application to get access to a few pages from the “blue book”
prepared for the 2010 election of the Australian parliament1. The application was made by one
David Crowe who was a journalist. The application was denied on the grounds that the
documents were exempted by virtue of the provisions of Section 47C of the Freedom of
information Act, 19822. Thus, such documents would not be released unless such a release was
in public interest as per the provisions of Section 11A (5). The rejection of the application was
challenged in Court and the Judge affirmed the decision on the grounds that these documents
were exempted following the provisions of Section 47C and 47E.
At paragraph 51 of the judgment the judge observed that the “Frankness and Candour”
claims require the presence of the five factors laid down by the judgment in Re Howard and the
Treasurer3. In resolving the claims for the exemption the judge observed that the duty he was
tasked with was to affirm, amend or set aside the rejection of the application by the Treasury.
Protection of candour and confidentiality of these documents were taken as a public interest
consideration. The second factor stated in Re Howard and the Treasurer was that disclosures
which will show frankness and candour in future pre-decisional interactions is contrary to public
interest.
Section 11A of the Freedom of information Act, 1982 regulates grant of access to
documents by application or request4. Freedom of Information Amendment (Reform) Act 2010
introduced Section 11B. Section 11B dealt with exemptions on public interest. Section 11B (1)
1 [2013] AICmr 69.
2 Freedom of information Act, 1982.
3 [1985] 7 ALD 626.
4 Freedom of information Act, 1982.

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defines the scope of the section and states that the provisions of the section applies in situations
where it must be determined if the exemption of a document would ideally be contrary to public
interest5. Section 11B (3) defines circumstances that work in favour of grant of access to a
particular document. These are if the grant of access to the documents would ideally help in
promoting the objects of the Act, if such access would inform debate on a matter which is
important to the public, facilitate efficient public oversight on mobilization of public funds
through government expenditure or if the documents would grant access to personal information
about the person himself. Section 11B (4) of the act defines factors which would be irrelevant in
determining if access to a particular public document would be contrary to public interest. These
are if the access to such documents would ideally cause embarrassment or a loss of confidence
from the public for the commonwealth government, if such a document would cause any person
to misconstrue the document, the organizational position of the author of the requested document
and if granting access to the company would lead to unnecessary debates on any issues. Section
11B (5) of the act provides a guideline in interpreting such applications and states that in
determining if access to documents should be granted the applying entity should consider all
recommendations made by the Information Commission as per Section 93A of the Act.
In affirming the Department of Treasury’s decision, the judge held at paragraph 59 of the
judgment that though this instance relates to access to some pages of a document the tradition
through which a minister gets access to documents from a public service and the fact that the
document would have confidential and candid commentary for the Minister’s consideration must
be taken as a factor relating to the frankness and candour of the document in question. The pages
requested for were the overview section of the “Blue book” formulated by the Department of
5 Freedom of Information Amendment (Reform) Act 2010.

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Treasury (page 2), pages relating to climate change and market based mechanisms (pages 24 to
27) and an attachment to the overview section (pages 42 to 43).
From the above mentioned pages it can be inferred that requesting these pages could not
be classified as a disclosure that would promote the objects of this act. It would not spark a
debate on a subject that is of public importance. Though the pages relating to market based
mechanisms could be related to public oversight of government expenditure the same cannot be
directly attributed to it. Furthermore, these documents cannot be construed to contain material
personal information about the person applying for them as the pages specifically relate to the
government’s political stand on issues. Thus following the provisions of Section 11B (3) none of
the factors in favour of grant of access apply to the present scenario6.
When affirming the rejection of the application however the judge observed that the
traditions of the processes employed when a Minister receives briefs from a public service must
be considered in such a situation. By virtue of the provisions of Section 11B (4) (c) however, the
position of the author is irrelevant to the application7. In considering the traditions of the
processes employed when a Minister is receiving a brief and in considering the candid
recommendations made by the public service authority is considering the position of the author a
the brief would ideally be drafted by the position holding the apex position in the Department of
Treasury (the commissioner). Thus, this observation is in contravention of Section 11B of the act
to the extent that it interprets an irrelevant factor as a material consideration in rejecting the
application for access to these documents8. This would mean not necessarily mean that the judge
6 Cordis, Adriana S., and Patrick L. Warren. "Sunshine as disinfectant: The effect of state Freedom of Information
Act laws on public corruption." Journal of Public Economics 115 (2014): 18-36.
7 Pozen, David E. "Freedom of Information Beyond the Freedom of Information Act." U. Pa. L. Rev. 165 (2016):
1097.
8 Relly, Jeannine E., and Carol B. Schwalbe. "Watchdog journalism: India's three largest English-language
newspapers and the Right to Information Act." Asian Journal of Communication 23.3 (2013): 284-301.

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erred in deciding in favour of the Department of Treasury however this consideration of an
irrelevant factor as a material consideration cannot be held a valid cause for rejecting the
application of David Crowe as this is strictly confined to the position held by the author of the
document. Thus, the requested documents (the pages from the “blue book”) should ideally have
been disclosed to the applicant if any of the elements of Section 11B (3) can be successfully
established by the applicant.

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Bibliography
Statutes
Freedom of information Act, 1982.
Freedom of Information Amendment (Reform) Act 2010.
Cases
Crowe and Department of the Treasury [2013] AICmr 69.
Re Howard and the Treasurer [1985] 7 ALD 626.
Articles
Cordis, Adriana S., and Patrick L. Warren. "Sunshine as disinfectant: The effect of state Freedom
of Information Act laws on public corruption." Journal of Public Economics 115 (2014): 18-36.
Pozen, David E. "Freedom of Information Beyond the Freedom of Information Act." U. Pa. L.
Rev. 165 (2016): 1097.
Relly, Jeannine E., and Carol B. Schwalbe. "Watchdog journalism: India's three largest English-
language newspapers and the Right to Information Act." Asian Journal of Communication 23.3
(2013): 284-301.