Note: Following a complaint to the Information Commissioner's Office (OAIC) about the very delayed response time, I am now continuing this case directly with the OAIC. I am asking it to overturn the decision to deny access, and have submitted a letter outlining my reasoning for refuting both exemptions used (s33 and s47C).

LETTER SUBMITTED TO THE OAIC (POSTED HERE FOR INFO ONLY):

I write regarding my request to the Department of the Prime Minister and Cabinet (DPMC) for letters from the Prime Minister to the Queen since 1 January 2013, and to ask the OAIC to intervene again in this case.

Having finally received a response from DPMC, I wish to dispute the decision it has made. I am disputing both exemptions cited (s33 and s47C of the FOI Act) for the reasons outlined below. I ask that the OAIC directs the Department to remove all exemptions and release this information in full.

All previous correspondence about this request between myself and the Department is published at https://www.righttoknow.org.au/request/l....

Section 33 (1 document)

The Department’s use of s33 suggests that release of the letter in question would damage the international relations of the Commonwealth (s33a(iii)). I dispute this on the following grounds:

• I find it highly improbable that the release of a letter from the Prime Minister to the Queen could be considered to be a threat to Commonwealth relations. As the Department’s own response acknowledges, s33 guidelines state that such a threat must be “real and substantial” and “supported by evidence”. Yet the Department has provided no evidence about why it believes release of these letters would cause international damage. Unless it does so, this point should be struck off.

Further to this, the Department claims that damage would occur because other nations would lose confidence in Australia being “a reliable recipient of confidential communications” – yet this FOI concerns information sent by the Prime Minister, not received. Therefore I ask that this point – and the whole use of this exemption – is struck from the response, on the basis that it is a misinterpretation of the request, the exemption, or both. Any alternative argument about confidence in Australia as a “reliable sender of confidential communications” does not make logical sense, and hence cannot be alternatively used in this case.

The letter in question is also now historical: over three years old and written by a former Prime Minister no longer in the role. This clearly diminishes the risk of any relationship damage between the current Government and foreign states, and therefore also diminishes the argument against its release.

• The Queen is not a ‘regular’ foreign head of state – she is also Australia’s head of state, and any letters between the Australian Prime Minister and the Queen must be considered to be sent in that capacity. Therefore I dispute that concerns about damage to foreign relations are even a legitimate basis for an argument: this is a letter between the Australian Prime Minister and the Australian head of state, who happens to be foreign. Any concerns about other nations losing trust in Australia because of the release of these letters are therefore overblown and should be discounted. Everybody knows that the Queen is the Australian head of state, and other nations would be reasonably expected to accept that these letters are received in that capacity. It cannot be assumed that the release of letters from the Australian Prime Minister to the Queen would have any negative knock-on effects internationally, and no evidence has been provided so suggest it would do so.

Overall then, the Department has not, in my view, made any reasonable case as to how the release of this information could possibly damage the international relations of the Commonwealth. Therefore the use of the use of s33 as an exemption should be overturned.

Lastly, as a point of fact, the document declared as exempt under s33 is dated from 2010 – before the time period stated in my request (which begins in 2013). I assume this is an error and the document date should in fact be November 2013, not November 2010 as stated in the table of documents. I would be grateful for clarification of this.

Section 47C (10 documents)

I dispute the use of s47C to block this information on the following grounds:

• There is an undeniably strong public interest in these documents being made open and transparent. In order to exclude this this information on public interest grounds, the Department must show that it is contrary to the public interest, on balance, for this information to be released. It has not done so.

Correspondence between the Australian Prime Minister and the Australian head of state should be open to scrutiny regarding the topics covered and the “recommendations and advice” (in the Department’s words) the Prime Minister is offering. It is legitimate, for example, to question just how much influence the Prime Minister has over the head of state, and vice versa. Australians have a right to know what “recommendations and advice” he or she is giving.

Some of this information will undoubtedly be of strong public interest. For example, the letter dated March 2014 very likely relates to correspondence between Prime Minister Tony Abbott and the Queen regarding the reestablishment of knighthoods and dames in Australia. [This is evidenced by the fact that the cover letter for this correspondence is already in the public domain, dated March 2014.]

I cannot know what is contained in the other correspondence, however it is clear that, at least in part, the correspondence contains discussion and advice of clear historical significance to Australia, potentially about controversial issues. Therefore it should be released to support both political scrutiny and historical understanding.

This also brings into play s11B(b) as a public interest argument in favour of disclosure (informing debate on a matter of public importance).

• The Department uses the Tribunal case of Wood v DPMC (AATA 945) as part of its argument against disclosure, stating that the Deputy President of the Tribunal accepted that “public servants need to be able to give totally frank advice to Ministers, that on occasions they do so on an understanding that the advice will be confidential”. I would like to make two points about the Wood case and its use as a comparison:

1) The Wood case regarded a briefing note given from civil servants to the then Prime Minister (Julia Gillard). The letters in question here are from the Prime Minister to the Queen, and not anything to do with civil servants.

2) The Department’s response does not go into any more detail about the Wood v DPMC case, beyond describing the Tribunal Deputy President’s comments about the benefits of keeping advice confidential. However I note that, further to the comments the Department has attributed to the Deputy President, she actually went on to say in her ruling:

“…however, I do not accept that advice given on those occasions need always be kept confidential and out of the public eye. To reach that conclusion would run counter to the FOI Act itself which is based on every person’s having a right of access to a document unless disclosure of that document would have one of the outcomes set out in Part IV of the legislation read with s 11B as appropriate.”

The Tribunal decision in that case was in fact to reject DPMC’s claim for exemptions under s47C, and to order the information to be disclosed in full on public interest grounds (“other than the two passages that I have found to be exempt under s42”). The ruling in the Wood case is, therefore, evidence for disclosure of the information, not non-disclosure.

The Tribunal ruling also noted that “four years have passed” since the documents were created, and the Prime Minister in question was no longer in the role. “It is difficult to see how disclosure of such advice some four years after the circumstances in which it was given will inhibit public servants in giving such comprehensive advice in future,” it states.

More than three years have now passed since the creation of most of the correspondence I am requesting, with a different Prime Minister now in place. The argument for using s47C as an exemption for those letters is therefore even weaker. Borrowing the Tribunal’s argument above, it is difficult to see how the disclosure of advice three years ago would inhibit the Prime Minister from giving advice in future. Letters 1-9 were all written by a Prime Minister no longer in the role; this must be taken into account when balancing risks versus public interest.

Taking into consideration the information above, I would be grateful if you could review this decision and order DPMC to release the information in full.

Finally, I would like to add that I am disappointed with the long and unreasonable timeframe DPMC took to send a response to my request, which was well beyond the statutory limits required under FOI legislation. Therefore I am reluctant to go back to the Department to request an internal review as the next step in this process, given the likelihood of further delays. I am instead asking the AOIC to now take up this case. I urge you to press DPMC to deal with this matter quickly, and to release this information without further delay.

I look forward to hearing from you in due course.

Best wishes

William Summers

The Australian Information Commissioner in William Summers and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 9 (16 January 2018) decided these documents were not exempt and ordered the Department to release them to Mr Summers.

Congrats on a battle well fought.

*UPDATE 21 Jan 2020: THE END*

On 20 December 2019, the AAT overturned the Information Commissioner’s ruling that the letters must be handed over to me.

It instead agreed with the government that publication of the letters could damage international relations with Britain and other countries.

I am very disappointed with the ruling and plainly disagree with it. However, I spoke to my legal team and we agreed there is little room for a further appeal to the full Federal Court — which would anyway need to be made on a substantial point of law, not merely because I disagree with the AAT decision.

Regretfully, that means my three-year fight to win the release of these letters must now come to an end.

For more information about the battle to gain release of these letters, see: https://chuffed.org/project/help-find-ou...

The full AAT ruling is available online here: http://www.austlii.edu.au/cgi-bin/viewdo...

William Summers