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International Law

: Open and Shut

FOI onus in AAT-status quo preserved

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On what became something of a controversial issue following tabling of the Freedom of Information Reform bills in Parliament last November the Government quietly backed off before final debate on the legislation on the proposal to change the onus of proof so that a party seeking review in the Administrative Appeals Tribunal would carry the burden of making its case. It also gave way on its second bite that would have removed the concept of onus but placed an evidentiary burden on the government agency. Tthe staus quo that the government agency carries the burden remains. Here is the relevant extract from the revised Explanatory Memorandum:

Under proposed subsection 61(1), in AAT proceedings to review an FOI decision, the
agency or Minister to whom the access request was made, or to whom the application
for amendment or annotation of personal records was made, will have the onus of
establishing that a decision should be given that is adverse to the FOI applicant. The
agency or Minister will have that onus when:
(i) the agency or Minister seeks review of a decision made by the Information
Commissioner (for example that access should be given to a document because
an exemption does not apply) ? in this case the AAT will review a decision of
the Information Commissioner (see proposed new paragraph 61(1)(a));
(ii) the FOI applicant seeks review of a decision made by the Information
Commissioner (for example affirming that an exemption applies to a document
and that access may be refused) ? in this case the AAT will review a decision of
the Information Commissioner (see proposed new paragraph 61(1)(b)); and
(iii) the FOI applicant applies to the Information Commissioner for review of an
agency or Minister decision and the Information Commissioner declines review
on the ground that it is desirable that the AAT undertake review under proposed
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new paragraph 54W(b) ? in this case the AAT will review a decision of the
agency or Minister (see proposed new paragraph 61(1)(b)).
The FOI applicant will not bear an onus in either IC review or AAT review. In an IC
review, an agency or Minister is given the onus of establishing that a decision they
made is justified under proposed new section 55D (item 34, Schedule 4).
Proposed subsection 61(2) is intended to preserve the effect of existing subsection
61(2). An affected third party will be given the onus of establishing in an AAT
review that a decision should be given adverse to the FOI applicant when the third
party:
(i) applies to the AAT for review of a decision by the Information Commissioner
affirming a decision by an agency or Minister to give access to a document; and
(ii) applies to the Information Commissioner for review of an agency or Minister
decision to give access to a document and the Commissioner declines review on
the ground that it is desirable that the AAT undertake review under proposed
new paragraph 54W(b).
Proposed section 61A modifies various provisions in the AAT Act as a consequence
of the proposal to interpose Information Commissioner review before AAT review.

Full post as published by Open and Shut on May 13, 2010 (boomark / email).