'Accessing Documents of Former Ministers - Plugging the Accountability Gap' by Daniel Casey in (2022 33 Public Law Review 91 comments
In the wake of Hocking v Director-General of the National Archives of Australia (Hocking) and ongoing debates around integrity commissions, there has been renewed attention on access to information, accountability and transparency. One of those ongoing controversies has been around whether the official papers of a former Minister should be accessible under the Freedom of Information Act 1982 (Cth) (FOI Act). The arguments in favour of transparency are many, and are often considered fundamental to an operational democracy. This comment does not revisit these normative arguments, which are clearly set out elsewhere. Instead, it seeks to demonstrate that a purposive interpretation of the FOI Act is available and would allow these documents to be accessible under the FOI Act, once they have been placed in the National Archives of Australia (NAA).
Currently, the interpretation of s 4 of the FOI Act is that once a Minister leaves office, a document that was in her possession, but is not any more, is no longer an "official document of a Minister or official document of the Minister" and therefore is not covered by the FOI Act. The Grata Fund, a non-profit strategic litigator, has released a detailed analysis of the shortcomings of the FOI Act stated that this appears to "lead … to the absurd consequence that a Minister can escape scrutiny simply by resigning or being shuffled around to a new position" and creates a "significant gap" in accountability, with resultant calls for legislative change. However, these proponents have not explored other avenues for accessing some of these documents.
In most instances, these documents are transferred to the NAA, which normally rejects FOI applications under s 13 of the FOI Act, which excludes "documents in certain institutions" from the FOI Act. This note will demonstrate that this rejection, based on a literal reading of the Act, ignores the clear parliamentary intention to only cover personal or private papers, rather than official government records. This purposive-driven reading of s 13, which has not yet been substantively considered by either the Administrative Appeals Tribunal (AAT) or the courts, would ensure that a document's accessibility under the FOI Act is based on the substance of the document, rather than the political status of the Minister.
