Why 'Good Ideas' Need to Simmer - The FOI Deliberative Matter Exemption

To deliberate or to disclose? That is also the question that has vexed Freedom of Information (FOI) decision-makers since the very first days of the Freedom of Information Act, 1982 (the FOI Act) and continues to confound us in 2024. For those uninitiated in the FOI world, ‘deliberative matter’ is a conditional exemption that seeks to protect the Commonwealth Government, its Ministers and Australian Public Service (APS) staff members’ ‘thinking space.’ In my opinion, that is just a shorthand for protecting Australia’s real interests by allowing public servants to generate the very best in policy decisions, procedures and actions – and ultimately for the good of the whole Australian community. To use a foodie metaphor, ideas need to simmer. If we take away the heat too early, the flavour is ruined. But the foodie analogy only works to the extent that we recognise the ingredients cost billions of dollars, and the final meal will be one shared amongst all in our nation.  

The deliberative matter exemption is a privilege 

Another non-foodie way to look at it, the deliberative matter exemption is a privilege – and I’m not talking about legal privilege here. Having the capacity and time to consider how best to protect Australia’s interests is a real privilege - and one that lies at the heart of our democracy. And we, as the public, can gift Commonwealth Government Ministers and APS staff this ‘thinking space’ to test and hypothesise on policy issues before they are released to the public. In gifting our public servants the ability to explore sensitive policy issues – and simmer or ruminate over the best options - that process leads to better decisions and even better outcomes for the greater good.  

A brief history of the deliberative matter exemption

To understand the issues, we need to understand a brief history of the Deliberative Matter exemption. The FOI Act came into force in 1982 – and 3 years later, John Howard (the then Deputy Leader of the Opposition) lost an Administrative Appeals Tribunal case to dislodge a Ministerial Certificate that barred access to documents. In short, those Certificates effectively gave the Government a ‘free kick’ to reserve documents from public view. The principles coming from this case have since been ‘shorthanded’ as the ‘Howard Factors’. Those five principles can be summarised as follows: 

(1) the more senior the public servant is, the more sensitive the issues that would be communicated and therefore more likely that the communication should not be disclosed;  

(2) disclosure of communication made in the development of policy tends not to be in the public interest; 

(3) disclosure which limits the frankness and candour in communications is likely to be contrary to the public interest; 

(4) disclosure will lead to confusion and unnecessary debate resulting from disclosure, which tends not to be in the public interest; and 

(5) disclosure of documents which do not fairly disclose the reasons for a decision taken may be unfair to the decision-maker and may prejudice the integrity of the decision-making process.[1]

Between the 1990s-2010, scores of FOI cases tried to apply the Howard Factors, all with varied interpretations of the deliberative matter exemption – sometimes expanding its remit, while others limited it and with many more in-between. It took until 2010 to (finally) get some clarity on the ‘deliberative issue,’ when the FOI Reforms formally excluded most of the ‘Howard Factors’ from the FOI Act. In particular, section 11B(4) of the FOI Act mandates that embarrassment, loss of confidence in the government, members of the public misinterpreting or misunderstanding the document, the seniority of the author of the document, or disclosure causing confusion or unnecessary debate can no longer be taken into account when considering the public interest.

But it didn’t end there. Fast forward to 2024 – and there is still no clear path or principles to apply with regards to the deliberative matter exemption.  So, where does that leave us? In my opinion, the real issue comes down to one relatively simple question: Is there a live issue that could benefit the public? 

Is there a live issue that could benefit the public? 

Recently, the Office of the Australian Information Commissioner (OAIC) contemplated this very question in Rex Patrick and Department of Foreign Affairs and Trade[2](DFAT) (the Rex Patrick Case). The documents in issue included opinions, advice and recommendations provided to the former Minister of Foreign Affairs concerning the conciliation process regarding treaty negotiations, bilateral relationship between Australia and Timor-Leste and negotiations with third parties relating to options for processing of oil and gas in the Greater Sunrise fields. The OAIC zeroed in on the question - Is there a live issue that could benefit the public? The OAIC agreed with DFAT’s contentions that disclosure of the material would reasonably be expected to undermine the Australian Government’s ability to effectively co-operate and continue to have open discussions between Australian diplomats and their foreign counterparts. As such, the OAIC found that the information was contrary to the public interest. At the heart of the issue was a finding that disclosure of the documents would reduce the quality of the information able to be given to the Australian Government in confidential settings such as negotiations and dispute resolution processes.   

By analogy, a good way to understand what constitutes a ‘live issue’ is to turn to the FOI Guideline’s considerations of Cabinet documents. The FOI Guidelines at [6.78] notes that “examples of ‘non-sensitive matter’ includes information that is no longer current, or that is already in the public domain…” In the Rex Patrick case, the issue remained live, given the ongoing negotiations regarding the development of Greater Sunrise. Actually, this very well may continue to be ‘live’ because of the changing nature of international negotiations. However, it will be an enduring question for the FOI decision-maker to apply the ‘live-issue-that-could-benefit-the-public’ test once those negotiations are finalised and a decision has been made by the Government. 

But these are the questions that will continue to vex us because the nature of conditional FOI exemptions is premised upon an evaluation of the public interest. What I think is in the public interest at a particular point in time is different from all other FOI decision makers, Ministers and other APS staff, not to mention the broader Australian community that we are trying to serve.

Conclusion

To deliberate or to disclose – it’s still a ‘live’ question, and it’s impossible to provide a definitive answer. But we shouldn’t play the Hamlet role, pondering endlessly in an administrative law soliloquy. Deliberations cannot go on forever. At some point, we need to take the pot off the boil and let the public sample our Government’s creations. They may like it, or they may hate it, but that’s the job of the FOI officer – to find the right time to serve the dish.