Tribunal: The Honourable Justice John Logan (Deputy President), Deputy President Ian Hanger and Senior Member Andrew Nikolic
The Information Commissioner made a decision to give the respondent, a journalist, access to a series of text messages sent between the Chief and Vice Chief of the Australian Defence Force (ADF). On 21 March 2018, the Administrative Appeals Tribunal set aside this decision and made an order that access to the text messages be refused.
The journalist made an application under the Freedom of Information Act 1982 (Cth) (FOI ACT) for access to a range of ADF documents. This application included the text messages. The journalist made the application following an article he published in The Australian newspaper that raised for public consideration the ADF’s policies on cultural inclusion and diversity. The senior officers of the ADF drafted a letter in response to the article. The letter specified the rationale for the policies and explained their benefits. The newspaper published a version of the letter. The version published differed from the form in which the letter had been sent to the newspaper. These differences were the subjects of the text messages exchanged between the Chief and Vice Chief of the ADF.
The Tribunal had to determine whether the granting of access to the text messages would, on balance, be contrary to the public interest, as provided by subsection 11A(5) of the FOI Act. Section 11B of the FOI Act sets out a list of factors that either favour access, or should be regarded as irrelevant. The same section also states that, in making its decision, the Tribunal had to have regard to guidelines that were issued by the Information Commissioner under section 93A of the FOI Act. The Tribunal identified the relevant factor under those guidelines, for the purposes of this decision, as being whether the disclosure of the text messages would obstruct frank and candid communication within government. The Tribunal clarified that this factor carries no weight by itself but must be related to some particular practice, process, policy or program in government. Building on this, the Tribunal stated that, at a more general level, the Guidelines confirm that impairment to the management functions of an agency is a factor that may be taken into account.
The Tribunal considered the character of the text messages and concluded that the exchange was highly sensitive. The Tribunal found that the text messages showed that the two men, the most senior officers of the ADF, trust and respect one another to a very high degree. Their exchange was wholly official and private in that sense. It occurred in the context of information management and public relations, which was part of the command function in the ADF.
The Tribunal emphasised the legitimate and valuable role of the newspaper in raising for public consideration the existence of the policies and even interrogating them. This factor supported giving access to the text messages. The Tribunal acknowledged the public controversy in relation to the potential impact of the policies and that it was the senior officers of the ADF of their own motion, not the Minister for Defence, who had chosen to defend and explain the policies in the Letter, meant that large questions were involved in the issue in this case. This was another factor favouring the granting of access.
The Tribunal concluded that the ability of the journalist and the newspaper to explore the large questions mentioned, would not be much advanced by the granting of access to the text messages.
In general, the need for the two officers to communicate freely, candidly and spontaneously in circumstances of urgency and the utility of their using text messages for this purpose was clear. The Tribunal observed the high public interest in this need relating to the high command of the ADF.
In this case, the Tribunal took the view that there was an overwhelming public interest in the refusal of access. The Tribunal stated that the granting of access could potentially have a chilling effect on their deliberations by text messages or use of that medium over a range of other subjects.
Read the full written decision on Austlii.