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Freedom of Information in Australia: Issue Closed

Published online by Cambridge University Press:  24 January 2025

John McMillan
John McMillan*
Affiliation:
Faculty of Law University of New South Wales
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Abstract

“There is not a crime, there is not a dodge, there is not a swindle, there is not a vice which does not live by secrecy”, said Joseph Pulitzer. Needless secrecy is as difficult to eradicate as the evils which it spawns, though Mr McMillan suggests administrative and legislative techniques that could redress the balance in favour of openness. Much of the article is a discussion of one such technique, freedom of information legislation, and of a report on that topic published in 1976 by an interdepartmental committee established by the Federal Government. By reference to past Australian secrecy, U.S. experience under similar legislation, and bureaucratic inevitability, Mr McMillan argues that legislation based upon the committee’s report would do more to entrench the Administration’s right to withhold official information than to secure the public's right of access to it. Alternative proposals for a freedom of information Act are suggested.

Since this article was written the Federal Government has announced that it will introduce a Freedom of Information Bill after considering the committee’s proposals and comments thereon.

Type
Research Article
Information
Federal Law Review , Volume 8 , Issue 4 , December 1977 , pp. 379 - 434
Copyright
Copyright © 1977 The Australian National University

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References

1 Though slightly dated, the following account has been included to illustrate that the case for freedom of information legislation has to be seen in a broader context. Many of the figures supplied are based on results from a questionnaire sent by the Royal Commission on Australian Government Administration (here after“R.C.A.G.A.”) to 43 departments and statutory bodies early in 1975. The results are fully compiled in Bourke and Hilvert, “Government Administration and Public Information” (on microfiche in R.C.A.G .A.'s Collected Papers); see also R.C.A.G.A. Report (1976) paras 10.7.24, 29.

2 Kirkpatrick, “The Minister for Open Government” in Scott and Richardson (eds), The First Thousand Days of Labor (1975) Vol. 1, 85. The Department of the Media was the first to be abolished in 1975 and its functions either pruned or redistributed: Australian Financial Review (Aust. Fin. R.) 14.1.76, 27.2.76; The Bulletin 24.1.76; (1976) 2 Rupert 7. The new Government was soon concerned about its own public relations: Canberra Times (Canb. T.) 8.4.76; and Cabinet Decision No. 1862(M), 16.11.76, required each Cabinet submission to indicate such things as the anticipated public reception of the proposal, the groups that might favour or oppose it, and how the announcement could best be handlod (including advance notification to selected groups and persons).

3 Kirkpatrick, ibid.

4 Quoted in Hilvert, Bourke, supra n. 1, Ch. 5, p. 7Google Scholar.

5 Cf. the highly-successful yet simple innovations employed by President Carter to bury the Imperial Presidency: “fireside chats”, town meetings, talk-back programmes, open Cabinet meetings, and instructions to simplify agency regulations.

6 Letter of 28.8.75 fo Bourke and Hilvert, supra n. 1. See also, Report of the U.K. Fulton Committee on the Civil Service, Cmnd 3638, paras 283, 284.

7 Cf.the U.S. Administrative Procedure Act, 5 U.S.C. s. 553, which provides for public comment upon proposed agency regulations.

8 R.C.A.G.A. Report, Ch. 6.

9 Cf.the U.S. Government in the Sunshine Act, 5 U.S.C. s. 552b.

10 E.g. R.C.A.G.A. Report, Chs 3, 6, 7, recommendations 91-93, 305, 307, 308, App. Vol. 2; Dixon, Towards a Regional Information System (1976); Department of Urban and Regional Development, Westudy Report (1976).

11 5 U.S.C. s. 552, as amended by P.L. 93-502 and 94-409 (the Act is reproduced in I.D.C. and M.R.B. nn. 49, 50 infra p. 398). The most useful sources outlining case law and administrative experience under the FOIA are: Project Report, “Government Information and the Rights of Citizens” (1975) Michigan Law Review, 971; a Source Book on the legislative history of the 1974 amendments prepared by Subcommittee on Government Information and Individual Rights of the House Committee on Government Operations, FOIA and Amendments of 1974 (P.L. 93-502) 94th Cong., 1st Sess (1975); Marwick (ed.), Litigation under the Amended Federal FOIA (2nd ed., 1976); Access Reports (a fortnightly newsletter on the FOIA).

12 1976 figures taken from the annual reports on the FOIA submitted by each agency to Congress; 1975 figure taken from Relyea, The Administration of the FOIA (U.S. Congressional Research Service, 1976).

13 See, e.g. Project on National Security and Civil Liberties, Abstracts of Foreign Policy and National Defense Documents Released under the FOIA (1976), and a monthly newsletter of the Project, First Principles (1977) Vol. 2, No. 4.

14 See, e.g. Blackstock, Cointelpro (1976); Halperin, Berman, Borosag and Marwick, The Lawless State (1976).

15 Speech delivered to the Canadian Bar Association Convention in Winnipeg, 30.8.76.

16 Lists of new indexes and manuals have to be published every 3 months in theFederal Register (Fed. Reg.) (the equivalent of the Gazette) (5 U.S.C. s. 552(a) (2)) e.g. 41 Fed. Reg. 4679, 30.1.76, and 29720, 19.7.76.

17 Respectively, Hawkes v. I.R.S. (1974) 507 F. 2d 481; National Prison Project v. Sigler (1975) 390 F. Supp. 789; Air Force v. Rose (1976) 425 U.S. 352; Jordan v. Dept of Justice D.D.C. No. 76-0276, 18.1.77.

18 Cases cited in Ellsworth, “Trial Strategy When Using the FOIA” in Marwick,supra n. 11, 83-86.

19 E.g. Nader, , supra n.15Google Scholar; Save the Dolphins v. Department of Commerce (1975) 404 F. Supp. 407; Ditlow v. Brinegar (1974) 494 F. 2d 1073 (information subsequently released). Groups regularly using the Act include the various Nader affiliates concerned with taxation reform, aviation, health, auto-safety and corporate accountability, the FOI Clearinghouse, the Institute for Public Interest Representation, Consumers Union, Project on National Security and Civil Liberties, Military Audit Project, National Prison Project, National Parks Association, Union of Concerned Scientists and Washington Research Project. An equally extensive (and much criticised) use of the Act is by businessmen to discover what their competitors are doing: e.g. Washington Post 27.7:76; Access Reports Vol. 1, No. 6, 25.8.75.

20 E.g. Tennessean Newspapers Inc. v. F.H.A. (1972) 464 F. 2d 657; Stern v. Richardson (1973) 367 F. Supp. 1316; the Litigation Docket of the FOi Clearinghouse. FOI matters are also handled by a Reporters Committee for Freedom of the Press, and in a periodical press journal, Press Censorship Newsletter.

21 Respectively, Canb. T. 8.7.76; Canb. T. 7.8.76; Sydney Morning Herald (S.M.H.) 21.9.76; Melbourne Sun News Pictorial (Melb. Sun Pict.) 3.7.76; Australian (Aust.) 18.9.76; Aust. 17.11.76; Canb. T. 25.6.76; S.M.H. 4.9.76; Aust.Fin. R. 29.6.76; (1976) 1 Rupert 8; (1976) 5 Rupert 6; Adelaide Advertiser(Adel. Adv.) 10.8.76; Aust. Fin. R. 23.9.76. Also, 10% of the 750 submissions received by R.C.A.G.A. were critical of the government's information functionReport, para. 10.7.2; for other criticisms about disclosure practices, see paras 6.3.27, 8.2.21, 8.4.38, 8.4.78, 10.2.56-57, 10.7.1-32.

22 “Interdepartmental Committees in the Australian Public Service” (1976) paras 5.11-14 App. IO (report prepared for R.C.A.O.A.see Appendix Vol. 4J).

23 R.C.A.G.A. Report, para. 3.6.7; R.C.A.G.A. Efficiency Task Force, Toward a More Efficient Government Administration (1975) para. 155.

24 R.C.A.G.A. Report, paras 4.1.2, 10.1.1, 10.1.20-25; R.C.A.G.A. Task Forceon Economic Policy, The Processes of Economic Policy Making in Australia (1976) Pt 9.

25 Armstrong, , “Obstacles to Sensible Regulation of Commercial Broadcasting” (1974) Australian Quarterly Vol. 46, No. 4, pp. 7, 13-15CrossRefGoogle Scholar.

26 Vernon, , “Information and the Consumer” (1976) 1 Rupert 6Google Scholar.

27 Shannon, , 'The Law of the Label” (1976) 1 University of New South Wales Law Journal 241, 245Google Scholar.

28 Upon celebrating the 50th Anniversary of the Canberra Times (Canb. T.23.9.76). The 2 earlier occasions were in a speech to the Melbourne Rotary Club on 21.4.76, and in addressing the National Press Club on 27.5.76. See also H.R. Deb. 1976, Vol. 98, 626.

29 New York Times Co. v. U.S. (1970) 403 U.S. 713, 729.

30 Respectively, Aust. Fin. R. 16.7.76; Melb. Sun Pict. 9.10.76; Melb. Sun Pict.3.7.76; S.M.H. 26.6.76; Melb. Sun Pict. 28.10.76; Canb. T. 6.8.76; S.M.H.26.11.76; Melb. Sun Pict. 28.10.76; Canb. T. 6.8.76; S.M.H. 26.6.76; S.M.H.3.7.76; Aust. Fin. R. 19.11.76; Western Australian (West Aust.) 10.11.76; Aust.15.7.76; Melb. Sun Pict. 24.9.76; Melb. Sun Pict. 21.10.76; Hobart Examiner21.9.76; Daily Telegraph (Daily Tel.) 15.8.76. For a list of 15 major documents that were leaked, see Aust. 15.7.76; and for 30 sensitive Defence documents leaked over 3 years, see The Bulletin 20.11.76. See also Melbourne Herald (Melb. Her.)6.3.76; Canb. T. 16.7.76.

31 E.g. Canb. T.16.1.76, 13.10.76; S.M.H. 15.10.76, 19.10.76.

32 Nation Review (Nation Rev.) 15.10.76. For details of other enquiries and admonitions: National Times (Nat. Times)8.3.76; Melb. Sun Pict. 3.7.76, 20.9.76; Aust. 15.7.76; Aust. Fin. R. 5.10.76; Melb. Her. 15.10.76; S.M.H.16.10.76,16.11.76; Canb. T. 20.10.76; Age 17.11.76. In addition, frequent “leaks” from the Treasury was conjectured to be one of the reasons why it was split into 2 departments (Canb. T. 24.11.76); the Secretary of Prime Minister and Cabinet instituted a newspaper clippings file so that the identity of the leaking culprit could be uncovered (Nat. Times 11.10.76); an order was made that only 4 copies of any minute to.the Minister were to be prepared (Melb. Sun Pict. 9.10.76); and Prime Minister Fraser threatened MPs that if they leaked information from partymeetings they might be excluded from further meetings and lose pre-selection (Melb. Her. 4.3.76). In contrast with this reaction, Mr Fraser had commentedwhen Leader of the Opposition: “There could be circumstances, I believe, in which a Treasury official could regard his overwhelming duty to Australia as being greater than his duty to a government. . . . It would have to be a matter of conscience” (Aust. Fin. R. 16.7.76). This statement was modified when in Government: “Public servants would be justified in leaking if they were clearly of the view that a government was breaking the law or that the Prime Minister was pursuing the breaking of the law, then there could be extreme circumstances which could allow that” (Aust. 18.11.76).

33 Melb. Her. 25.2.76. The decision was later rescinded (Canb. T. 18.3.76).

34 Canb. T. 28.8.76.

35 E.g. Nation Rev. 16.12.76.

36 E.g. The Bulletin 14.8.76; Canb. T. 6.8.76, 1.9.76, 30.9.76, 15.12.76, 16.12.76;Aust. Fin. R. 25.5.16, 29.6.76, 2.7.76, 14.7.76, 16.12.76, 31.12.76; Age 29.7.76,27.9.76, 2.10.76, 2.11.76, 15.12.76; S.M.H. 23.1.76, 2.8.76, Nov. 76, 2.10.76; Aust.9.7.76, 29.11.76; West. Aust. 8.11.16, 13.12.76; Nat. Times 29.11.76, 27.12.76. See also criticism by Mr Hawke(Age 23.10.76), Kirby J. (ABC “Guest of Honour” 14.3.76), (1976) Vol. 17, No. 10. Choice 347.

37 S.M.H. 17.11.76. After the repeal of reg. 34(b), the Public Service Board issued a circular (General Order 14(M) P.S.B. Circ. 1974/23) that imposed in effect, a de facto vow of silence (see text to n. 62 infra p. 427). Officials were advised that public comments should not imperil “the identity of a politically impartial, career public service”for instance, defence of policies is the preserve of Ministers, advisers should avoid being identified as supporters or antagonists of political parties or policies, officers in relevant areas should avoid comment which might embarrass Federal-State relations, and official information that is not publicly available should not be released without authorisation.

38 Canb. T. 3.3.76.

39 The relevant correspondence is available in the Federal Law Review office. For a similar example of “runarounds”, see Canb. T. 23.9.76. See also R.C.A.G.A. Report, para. 5.2.6-7, for comment on the difficulties MPs encounter when seeking information.

40 However, the differences between the U.S. and Australian constitutional conventions are irrelevant when considering the particular U.S. examples of openness cited earlier in this article. Further, roughly 0.073% of U.S. federal employees (2,200 of 3;000,000) are appointed other than by the Civil Service Commission; a smaller percentage again are appointments made by the President, and there has been much recent debate about whether these should be made solely on a merit basis. The Swedish openness laws are discussed in McMillan, “Making Government Accountable A Comparative Analysis of Freedom of Information Statutes” [1977] New Zealand Law Journal 248, 275, 286.

41 Munro, , “F.O.I.L. Campaign Committee” (1976) 5 Rupert 7Google Scholar.

42 Erny, “The Public Service and Political Control” (1975) para. 3.45 (a paper prepared for R.C.A.G.A.see Appendix Vol. 1B). Reliance was placed upon other sections of Professor Erny's excellent paper in the following analysis of ministerial responsibility (particularly Ch. 2 and paras 3.32-33). See also an article criticising ministerial responsibility by the N.S.W. Attorney-General. the Hon. F. Walker, (1977) 7 Rupert 3.

43 Emy, id. paras 2.42, 2.45.

44 R.C.A.G.A. Report, para. 4.1.2.

45 Id. para. 2.3.6; generally, Ch. 2.

46 Emy, , supra n. 42 para. 4.48Google Scholar.

47 R.C.A.G.A. Report, para. 2.4.3.

48 R.C.A.G.A. Efficiency Task Force,supra n. 23, 199.

49 Proposed Freedom of Information Legislation (1974) and Policy Proposals for Freedom of Information Legislation (1976). All references hereafter (“I.D.C.”) are to the 1976 Report. For a list of departments represented on the I.D.C. n. 87 infra p. 434.

50 R.C.A.G.A. Report, Appendix Vol. 2A (hereafter “M.R.B.”). Portions of this article have been transcribed from the Explanatory Memorandum to the M.R.B.

51 For further explanation, id. 23, 106-107, 121-122; McMillan, supra n. 40.

52 Cf., e.g., the high number of appeals upheld by the Social Security Appeals Tribunals established in 1975: Lleonart, “Open Government in the Department of Social Security”, R.C.A.G.A. Report, Appendix Vol. 2, 187.

53 I.D.C. Ss 6, 7, 9. In the case of Cabinet papers, the Secretary to the Cabinet would issue the certificate, and for Council papers the Secretary of either the Council or the Department of Prime Minister and Cabinet might be empowered (id. paras 7.7, 9.6).

54 Id. para. 21.S.

55 Smith, de, Judicial Review of Administrative Action (3rd ed. 1973) 253-262Google Scholar.

56 I.D.C. para. 18.22.

57 Id. para. 6.7.

58 5 U.S.C. s.552(a)(4)(B), (b)(l). Halperin, “Judicial Review of National Security Classifications by the Executive Branch after the 1974 Amendments to the F.0.1.A.” (1975) 25 American University Law Review 27. The amended exemption applies to matters that are “(A) specifically authorized under, criteria established by an Executive order to be kept secret in the interest of national defence or foreign policy and (B) are in fact properly classified pursuant to such Executive order”. The Executive Order in question is explained, text to n. 68 at infra p. 403.

59 Remarks made at a seminar on the 1974 FOIA amendments, organised by the FOI Clearinghouse on 6.2.75, respectively, Gilliat, transcript 59; Lawton, 110. See also Zweibon v. Mitchell (1975) 516 F. 2d 594, 641-647, holding that courts have the competence to decide national security questions.

60 Quoted in Comment, “National Security and the Public's Right to Know” (1975) 123 University of Pennsylvania Law Review 1438, 1449.

61 Quoted in Clark, , “Holding Government Accountable: the Amended F.O.I.A.” (1975) 84 Yale Law Journal 741, 758CrossRefGoogle Scholar.

62 Weissman v. CIAD.C. Cir. No. 76-1566, 6.1.77 (Access ReportsVol. 3, No. 1, 11.1.77). However, courts have inspected some material in camera (e.g.M.A.P. v. Bush (1976) 418 F. Supp. 880; Klaus v. N.S.C.D.D.C. No. 75-1093,22.10.76 (Access Reports Vol. 2, No. 22, 15.11.76), and in other cases the court has ordered disclosure of material which was not classified in accordance with the procedural criteria of the Executive Order (Florence v. Defense (1976) 415 F. Supp. 156; Halperin v. State D.D.C. No. 75-674, 27.5.76 (Access Reports Vol. 2, No. 13, 28.6.76)). Generally, see Halperin, “Exemption l”, in Marwick, supran. 11, 18-21.

63 E.g. Klaus v. CIAD.D.C. No. 76-1274; M.A.P. v. Kettles D.D.C. No.75-0666, 4.12.76;Goldstein v. Levi D.D.C. No. 75-0993, 18.6.76 (Access ReportsVol. 2, No. 13, 28.6.76).

64 For discussion of some of the pre-trial discovery procedures, see M.A.P. v. Bush (1976) 418 F. Supp 876, 880.

65 I.D.C. S. 4, particularly para. 4.13.

66 Id. paras 7.11-12, 8.4.

67 For further criticism, see Walker, , supra n. 42Google Scholar. The issue of a non-partisan Service is discussed in text to n. 77 infra p. 407.

68 Established by Executive Order 11652 (37 Fed. Reg. 5209, 10.3.72), as amended by E.O. 11714 and 11862. The Order, which is incorporated in FOIA exemption 1, supra n. 58, is implemented by a National Security Directive of 17.5.72 (37 Fed. Reg. 10053, 19.5.72) and by regulations promulgated by the agencies affected. Plans are being formulated both in Congress and the I.C.R.C. to establish a new and much tighter classification system (e.g. (1977) H.R. Bill 89).

A draft scheme for implementing E.O. 11652 in Australia is proposed in M.R.B., cl. 30 and Part VI; discussed pp.112-117, 141-142. The I.D.C. declined to recommend for or against the establishment of a new classification system in Australia (para. 6.10).

69 I.C.R.C., 1975 Progress Report (May 1976) 10.

70 This figure does not include the Department of Defense, the CIA, and the Energy Research and Development Administration, for which figures were not available(id. 14).

71 For narrower wording to replace “security, defence and international relations”see M.R.B. 115-116.

72 E.g. Toronto Globe and Mail30.8.76, 4.9.76. The U.S. FOIA contains no separate exemption for confidential information supplied by foreign governments, although E.O. 11652, s. 4(C) supra n. 68 provides' that it shall be classified so as to ensure a degree of protection equivalent to that required by the foreign government. Generally, see Weisband, Franck (eds), Secrecy and Foreign Policy (1974)Google Scholar.

73 See,e.g.P.S.B. Circular, supran. 37.

74 Equally, the I.D.C. only explained whydiscussions (yet not decisions) of the Federal Executive Council should be kept secret (para. 9.5.).

75 M.R.B.cl. 26 and p.105.

76 I.D.C. S. 10.

77 Emy, supra n. 42 para. 4.59.

78 Id.para. 4.56. See also M.R.B. 126-129. A further argument against disclosure is that the ideas disclosed may only be a partial and misleading representation of Public Service thinking. The following proposals in the text taken from the M.R.B. seek to account for this objection.

79 M.R.B. cl. 31 and pp. 117-130; cf. n. 86 infra p. 408 and text thereto.

80 Brittan, Steering the Economy (1969) 34.

81 The exemption applies to matters that are “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” (5 U.S.C. s. 552(b)(5) )–see Lynch, “Exemption 2”, in Marwick, supra n. 11.

82 N.L.R.B. v. Sears Roebuck & Co. (1975) 421 U.S. 132.

83 Grumman Aircraft v. Renegotiation Board (1973) 482 F. 2d 710, reversed (1975) 421 U.S. 168; American Mail Line v. Gulick (1969) 411 F. 2d 696.

84 E.g. Tennessean Newspapers v. F.H.A. (1972) 464 F. 2d 657; Vaughn v. Rosen (1975) 523 F. 2d 1136.

85 (Emphasis added). E.g. the Government's argument in Vaughn v. Rosen (id. 1144-1145) that anything which is part of an ongoing process of appraisal, evaluation and recommendation reflects the deliberative process. See also remarks by Ralph Nader to the U.S. Federal Bar Association's Conference on “Openness in Government” in Washington, D.C., 22.5.75, that there are danger signs that “the bureaucracy is intent upon an effort to construe nearly all its documents as pre-decisional”. The exemption was the second most popular exemption used by U.S. agencies in 1975, being cited in 21% of initial denials and 24% of appellate denials, and was in issue in 143 (or 49%) of 292 cases (nn. 88, 89 infra p. 409 and text thereto).

86 I.D.C. paras 10.12-15. To this extent the criticisms in the text are tentative pending publication of the Government's Bill.

87 I.D.C. S. 11.

88 Relyea, , supra n. 12Google Scholar.

89 U.S. Dept of Justice, FOI Case List—January 1977 Edition; June 1976 Edition reprinted in 122 Cong. Rec. S13028 (2.8.76) and Marwick, supra n. 11, Appendix 72-76.

90 I.D.C. para. 11.10.

91 E.g. cases cited in Ellsworth, , “Amended Exemption 7 of the FOIA” (1975) 25 American University Law Review 37Google Scholar; and M.R.B. 136.

92 The former U.S. exemption protected “investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency” (5 U.S.C. s.552(b)(7) (1970)). For no apparent reason other than conservatism, the exemption was interpreted so as to protect almost anything in an investigatory file (Ellsworth, ibid.).

93 Open America v. Watergate Special Prosecution Force D.C. Cir. No. 76-1371, 7.7.76, concurring opinion p. 3.

94 Ellsworth, , supra n, 91, 50Google Scholar.

95 M.R.B.cl. 35.

96 H.R.Rep. No. 1380, 93d Cong., 2d Sess., 12 (1974) (Conference Report).

97 I.D.C. paras 12.3-6. Most of the secrecy provisions are listed in a schedule to the M.R.B., 53-54.

98 I.D.C. paras 23.4-6.

99 The I.D.C. thought as much—id. para. 23.5; contra M.R.B. 146.

1 E.g. courts in the U.S. initially accepted agency arguments that they had an equitable discretion to sanction withholding of non-exempt documents–Waples, “The FOIA: A Seven-Year Assessment” (1974) 74 Columbia Law Review 895, 911-920; rejected in Tax Analysts v. I.R.S. (1974) 505 F. 2d 350, 355. For suggested amendments to s. 70, see text infra n. 63.

2 I.D.C. paras 12.3-4.

3 M.R.B. cl. 36(0) and pp. 52-54, 140. In the U.S. there have been numerous cases on this issue (Halperin, “Exemption 3”, in Marwick,supra n. 11, 25-29) culminating in the amendment of the exemption in 1976 (I.D.C. para. 12.5; Berner, “The Effect of the 1976 Amendment to Exemption 3 of the FOIA” (1976) 76 Columbia Law Review 1029).

4 I.D.C. para. 12.7.

5 Odgers, , Australian Senate Practice (5th ed., 1976) 504-506Google Scholar. Quaere whether documents might be withheld on the basis that their contents slander, or reflect upon, the Parliament, its proceedings or members (id. 643-645).

6 Legislation Handbook, paras 2.57, 2.59.

7 M.R.B.cl.9(6) and p. 74.

8 I.D.C. para. 12.8.

9 M.R.B. 138; and cases cited infra nn. 10-14.

10 Air Force v. Rose (1975) 425 U.S. 352, 365-369.

11 Respectively, Air Force v. Rose, ibid; Vaughn v. Rosen (1975) 523 F. 2d 1136; Benson v. G.S.A. (1968) 289 F. Supp. 590, 594, affirmed (1969) 415 F. 2d 878; Lord & Taylor v. Labor 22 W.H. Cases 1245 (3.9.76). See also Lynch, “Exemption 2” in Marwick n. 11, 22-24 supra p. 388.

12 (1971) 444 F. 2d 21, 24.

13 Hawkes v. I.R.S. (1972) 467 F. 2d 787, 795, and affirmed (1974) 507 F.2d 481.

14 Marwick, n. 11, 24 supra p. 388 and supra n. 17.

15 M.R.B. cl. 36(f) and pp. 138-140.

16 I.D.C. paras 1t14-17.

17 Admittedly, s;parate legislation aimed specifically at ameliorating corporate secrecy would hav more impact-generally, see Nadel, “Corporate Secrecy and Political Accounta ility” (1975) Public Administration Review 14; Mintz and Cohen, Power, Inc. (1976) Part III; and Nader, Green and Seligman, Taming the Giant Corporation (1976) Ch. 5.

18 First Message to Congress (1901), quoted in Nadel,ibid.

19 On this practice in the U.S., see, e.g. H. Rep. No. 92-1419, 92d Cong., 2d Sess., 15 (1972); Honeywell Info. Systems, Inc. v. NASAD.D.C. No. 76-353,28.7.76 (confidentiality clause in contract); Access Reports Vol. 2, No. 6, 22.3.76, p. 6 (agency agreed to a contract provision that information would remain the sole property of the submitter).

20 Cf. Hughes Aircraft Co. v. Schlesinger (1974) 384 F. Supp. 292, 297.

21 National Parks and Conservation Ass'n v. Morton (1974) 498 F. 2d 765, 770; and Marwick, n. 11, 30-33, suprap. 388. Cf. the Food and Drug Administration's regulations implementing the FOIA which confer power upon the agency, first, to reject any claim of confidentiality made by a person submitting information to the agency, and second to refuse to defend any court action seeking the disclosure of that information (21 C.F.R. s. 4.44-46, 53). The differently worded U.S. exemption combines both of the I.D.C.'s proposed exemptions into one: “trade secrets and commercial or financial information obtained from a person and privileged or confidential” (5 U.S.C. s. 552(b)(4)).

22 Respectively, Charles River Park “A”, Inc. v. H.U.D. (1975) 519 F. 2d 935,943; Pennzoil Co. v. F.P.C. 5th Cir. No. 75-2961, 2.7.76. Both were “reverse FOI” cases, as to which see infra n. 25.

23 Armstrong, , supra n. 25CrossRefGoogle Scholar.

24 Cf. F.C.C. v. Schreiber (1965) 381 U.S. 279, 295-300 for a criticism to this effect; see also the Environment Protection Agency's regulations which proscribe the discretionary release of exempt business information (40 C.F.R. s. 2.119 (b))

25 M.R.B. cl. 32 and pp. 130-133. The Bill also included a procedure to account for “reverse FOI” cases, where a litigant seeks to enjoin an agency from disclosing information it has supplied to the agency (see cl. 17 and pp. 88-89). It is regrettable that the I.D.C. did not even mention this problem since it has now become a major issue in the U.S.—at least 30 such cases have been decided and another 100 filed, often causing substantial delays in the release of information and causing requestors to join in costly actions (see Clements, “Submitters' Rights to Prevent Agency Disclosure of Confidential Business Information—the Reverse FOIA Lawsuit” (1977) 55 Texas Law Review 587. Unless prohibited by the legislation, a submitter could probably bring a “reverse FOI” action in the Federal Court of Australia arguing that the agency had abused its discretion by deciding to release information that is allegedly confidential and protected by one of the exemptions.

26 M.R.B.cl. 33 and pp. 133-134.

27 I.D.C. paras 12.18-20.

28 See references cited n. 24 supra p. 392 and Brittan,Steering the Economy (1969) 32.

29 M.R.B CL.36(a)and pp.138-139

30 I.D.C. para. 13.1. The Tribunal would have power to reject the AttorneyGeneral's certificate if it felt the ground of public interest was not made out (id. para. 13.4).

31 Marwick, n. 11, 39-43 supra p. 388.

32 [1968] A.C. 910, 952 per Lord Reid; generally, see Pearce, , “The Courts and Government Information” (1976) 50 A.L.J. 513Google Scholar.

33 I.D.C. S. 8 and paras 12.9-13; cf. M.R.B., els 4(4), 34, 36(i) and pp. 62,134-135, 140.

34 I.D.C. S. 17 and paras 23.10-12.

35 E.g. the Socialist Workers Party found that it was the subject of illegal investigations extending over 38 years, in which time 8 million documents were generated. From 1960-1966 its offices were burglarised on an average of once every 3 weeks (First Principles, Vol. 2, No. 5, Jan. 1977). Further, the discussion that ensued the publication of the Crossman Diaries in England provides an illustration that commentators are concerned more with what such documents reveal about decision making methods than about the political personalities mentioned in the Diaries.

36 Canb. T. 24.1.76. The reduction was made pursuant to the Public Records Act 1958, s. 5.

37 See references cited supra n. 68 and M.R.B. 109-110. The Bill sought to account for some of the special problems the Archives Office would face in handling requests, id. els 4(4), 33(3), 57(c) and p. 60.

38 For facts and figures see M.R.B. pp. 65-66, 68-72, 75-76, 78-79, 90-91, 136.

39 Nader, n. 15 supra p. 389.

40 I.D.C. para. 1.1.

41 An appeal to the Tribunal would be possible from most of these discretionary decisions (id. para. 21.7), however this hardly justifies or salvages recommendations that are already bad. The powers that are not discussed further are transference of requests (id. paras 18.11-16), non-standard documents (id. paras 18.18-19), and form of access (id. para. 18.17). Cf. M.R.B. cls 5, 7. See also provisions in the I.D.C. Report for annual reports and oversight by the Administrative Review Council (paras 23.9, 23.13, 23.14), and cf. M.R.B. els 51, 53 and pp. 142-143.

42 More fully discussed in I.D.C. S. 22; M.R.B. 11-12; Hawker, , “The Administrative Implications of Freedom of Information Legislation” (1977) Australian Journal of Public Administration Vol. 36 p. 168CrossRefGoogle Scholar. Cf. also that the cost of secret keeping in the U.S. in 1972 was estimated to be $60-$80 million (New York Times 24.1.72).

43 I.D.C. paras 3.3, 17.6.

44 Sen. Rep. No. 89-813, 89th Cong., 1st Sess. (1966); H. Rep. No. 89-1497,89th Cong., 2d Sess. (1966).

45 The I.D.C. said that time limits could be introduced later by regulation (para. 20.3). The M.R.B.included them (cl. 9), but suspended their operation for 6 months (cl. 2).

46 H Rep. No. 92-1419, 92d Cong., 2d Sess., 16 (1972).

47 1974 FOIA Conference, supra n. 59, 89.

48 I.D.C. para. 20.2;cf. M.R.B., cl. 9 and pp. 70-78.

49 I.D.C. paras 18.4-6.

50 1974 FOIA Conference, supra n. 59, 121.

51 I.D.C. para. 14.4.

52 M.R.B. cl. 9(6) and p. 74.

53 I.D.C. paras 18.7-10; cf. M.R.B. cl. 5 and pp. 65-66.

54 I.D.C. para. 18.8. The U.S. FOIA provides that a request must “reasonably describe” records (5 U.S.C. s. 552(a)(3)). A House Report said a description “would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort” (H. Rep. No. 93-876, 93d Cong., 2d Sess., 6 (1974)).

55 I.D.C. para. 18.24. The M.R.B. required inclusion of additional matters (cl. 9(7) and pp. 74-76).

56 Report written by Mackinnon for Center for Study of Responsive Law and submitted to Prime Minister Trudeau (1976) 23-24.

57 I.D.C. para. 19.3; cf. M.R.B. cl. 10 and pp. 78-82.

58 5 U.S.C. s. 552(a)(4)(A).

59 (1976) 1 Rupert 5.

60 E.g. Fitzgibbon v. CIA D.D.C. No. 76-700, 10.1.77 (Access Reports Vol. 3, No. 2, 25.1.77).

61 1974 FOIA Conference, n. 59, 63, 80, 120-122 supra p. 401. Washington Post 25, 26, 27, 28, 29.7.76; Access Reports Vol. 2, No. 15, 9.8.76; New York Times10.4.71. A Bill was recently introduced into Congress to amend the FOIA to authorise any officer to disclose non-exempt information (H.R. Bill 2528 (1977)). The M.R.B. sought to mandate an administrative scheme for handling requests cl. 8 and pp. 12-14, 68-70.

62 Departmental Committee on Section 2 of the Official Secrets Act 1911 (1972)Cmnd 5104, Vol. 1, paras 88, 14.

63 .M.R.B. 54-56, 146-150; see also Emy, n. 42 supra p. 395, paras 4.S7-59.

64 I.D.C. S. 21; cf. M.R.B. 83-95.

65 Administrative Appeals Tribunal Act 1975, s. 43.

66 I.D.C. para. 21.12; cf. M.R.B., cls 19, 20 and pp. 89-92.

67 S. Rep. No. 93-854, 93d Cong., 2d Sess., 17-20 (1974).

68 Novik and Shattuck, 'Attorney Fees and Litigation Costs”, in Marwick, n. 11, 77-82 supra p. 388.

69 See cases cited n. 63 supra p. 401; Holly v. Acree (Access ReportsVol. 2, No. 8, 19.4.76).

70 Ellsworth, n. 18, 83 supra p. 390.

71 E.g. Open America v. Watergate Special Prosecution ForceD.C. Cir. No. 76-1371, 7.7.76, in which the FBI was given a qualified dispensation from the FOIA's time limits.

72 I.D.C. para. 23.8; cf. M.R.B., cl. 21 and pp. 92-95.

73 1974 FOIA Conference, n. 59, 151-152 supra p. 401; Vaughn, , “The Sanctions Provision of the FOIA Amendments” (1975) 25 American University Law Review 7Google Scholar.

74 Access ReportsVol. 3, No. 1, 11.1.77.

75 Mackinnon, n. 56, 24 supra p. 425.

76 I.D.C. para. 16.7. The I.D.C. also recommended publication of some descriptive material in the Commonwealth Directory-paras 16.1-2; cf. M.R.B. cls 22, 23 and pp. 95-97.

77 M.R.B.cls 24, 25, 31(0), (p) and pp. 97-105, 129-130. The M.R.B. also recommended publication of an index of specific types of documents, such as committee reports—els 27, 28 and pp. 105-106.

78 Id. 103, n. 1; Tax Analysts v. l.R.S. (1973) 362 F. Supp. 1298, affirmed in part, reversed in part (1974) 505 F. 2d 350.

79 I.D.C. para. 16.6.

80 Id. para. 16.14.

81 U.S.Courts seem prepared to hold that their comparable records provisions are judicially enforceable—Waples, n. 1, 909 supra, p. 412.

82 I.D.C. S. 24.

83 Id. paras 3.8, 3.9, 22.8.

84 Canadian Access,The Public's Right to Information Access in the Federal Government (1977) . For a discussion of the Canadian guidelines: McMillan, n. 40 supra p. 395.

85 I.D.C. para. 3.4.

86 Id. paras 1.5, 1.6, 5.8.

87 The departments represented on the I.D.C. were Attorney-General's, Prime Minister and Cabinet, Treasury, Defence, Administrative Services, Foreign Affairs, and the Public Service Board (para. 1.1).