Philip Morris Ltd and Treasurer [2013] AICmr 88
(13 December 2013)
Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple
Applicant:
Philip Morris Ltd
Respondent:
Treasurer
Decision date:
13 December 2013
Application number:
MR11/00220
Catchwords:
Application of FOI Act to documents where there is
a change of Minister — Whether documents are
official documents of a Minister —Whether
documents are in the possession of a Minister —
(CTH) Freedom of Information Act 1982 ss 4(1),
11(1), 11A(3), 55K(2), (3) — (CTH) Acts
Interpretation Act 1901 s 20
Contents
Summary ........................................................................................................................ 1
Background .................................................................................................................... 2
Decision under review ................................................................................................... 2
Application of the FOI Act to documents where there is a change of Minister ............ 2
Findings ...................................................................................................................... 3
Documents held by the Treasury ................................................................................... 5
Decision .......................................................................................................................... 5
Summary
1.
I vary the Treasurer’s decision of 29 June 2011, refusing access to the
documents requested under the Freedom of Information Act 1982 (the FOI
Act) on the basis that they were exempt from release under the FOI Act. The
FOI Act does not apply to the documents because they are not official
documents of a Minister.
1
Background
2.
On 17 March 2011, Phillip Morris Ltd (PML) applied to the then Treasurer, the
Hon Wayne Swan MP, for access to specified documents relating to the plain
packaging of cigarettes.
3.
On 29 June 2011, the Treasurer’s Office made a decision on the application,
identifying 13 documents within the scope of PML’s request. The Treasurer’s
Office decided that eight of the documents were exempt under ss 34(1)(c),
34(3), 47C and 47G of the FOI Act.
4.
On 5 August 2011, PML sought IC review of this decision under s 54L of the FOI
Act.
Decision under review
5.
The decision under review is the Treasurer’s decision on 29 June 2011 to refuse
PML’s request.
Application of the FOI Act to documents where there is a
change of Minister
6.
Section 15 of the FOI Act provides that ‘a person who wishes to obtain access
to a document of an agency or an official document of a Minister may request
access to the document’. Section 4(1) defines an ‘official document of a
Minister’ to mean ‘a document that is in the possession of a Minister … in his
or her capacity as a Minister, being a document that relates to the affairs of an
agency or of a Department of State’. Section 4(1) also provides that, ‘for the
purposes of this definition, a Minister shall be deemed to be in possession of a
document that has passed from his or her possession if he or she is entitled to
access to the document and the document is not a document of an agency’.
7.
On 1 July 2013, there were several changes to ministerial positions, including
to that of Treasurer: the Hon Chris Bowen MP replaced Mr Swan.1
8.
On 5 August 2013, I wrote to the parties to a number of ongoing IC review
applications and to departments that were assisting Ministers in relation to
those IC reviews, concerning the effect of a change of Minister on an ongoing
IC review. Recipients of these letters included PML and the Department of the
Treasury (the Treasury). In these letters, I expressed my preliminary view that
a document would no longer be an ‘official document of a Minister’ if,
following a change of Minister, the document was no longer ‘in the possession’
of the new Minister. I also asked the Treasury whether the documents the
1
These changes followed the replacement, as Prime Minister, of the Hon Julia Gillard MP by the
Hon Kevin Rudd MP.
2
subject of this IC review were in the new Treasurer’s possession, or were
documents to which he had access.
9.
On 18 September 2013, following a Federal election, the Hon Joe Hockey MP
replaced Mr Bowen as Treasurer.
10.
On 15 October 2013, the Australian Information Commissioner wrote to all
Australian Government departments, including the Treasury, in similar terms.
In his letter to the Treasury, he asked whether the documents the subject of
this IC review were in the new Treasurer’s possession, or were documents to
which the new Treasurer had access. On 18 October 2013, I wrote to the new
Treasurer asking him the same question.
11.
On 29 October 2013, the Treasurer’s Office responded, advising that the
‘documents relating to the review are not in the possession of the Treasurer
and cannot be accessed by the Treasurer.’
12.
On 10 December 2013, the Treasury advised the Office of the Australian
Information Commissioner that the documents that are the subject of this IC
review are in its possession.
13.
In response to my preliminary view, expressed in my letter of 5 August, PML
contends that:

its FOI request was made to the then Treasurer in his capacity as the
Treasurer and not in any other capacity

an FOI request or an IC review does not automatically cease when the
individual who holds a Ministerial office changes, but the matter
continues, with the relevant Ministerial office remaining the respondent

where documents have been identified in a decision of the Treasurer as
relevant to an FOI request and those documents are now the subject of an
ongoing review by a statutory review body, any new Treasurer must be
entitled to access (and therefore be in possession of) such documents, and

a Minister must be entitled to access documents that are the subject of an
ongoing dispute between his or her office and a third party.
Findings
14.
2
I agree with PML that an FOI request or an IC review,2 in which a Minister is the
respondent to the FOI request, does not cease just because there is a change
of Minister. The request or IC review continues, and the new minister is the
respondent. This is a consequence of s 20 of the Acts Interpretation Act 1901,
which provides that ‘[w]here in an Act any person holding or occupying a
particular office or position is mentioned or referred to in general terms, such
mention or reference shall be deemed to include all persons who at any time
Or, similarly, a review by the Administrative Appeals Tribunal under Part VIIA of the FOI Act.
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hold or occupy for the time being, or perform for the time being the duties of,
the office or position’.
15.
But an FOI request cannot continue to be processed, and an IC review cannot
continue to be undertaken, if (for some reason) the FOI Act no longer applies
to the documents that are the subject of that request or that review.
16.
In this case, the documents that PML requested are no longer in the possession
of the new Minister—the person (to adopt the words of the Acts Interpretation
Act) who holds for the time being, and performs for the time being the duties
of, the office (Treasurer) to which the FOI request was made. The documents
requested are no longer ‘official documents of a Minister’.
17.
It is not just that the new Treasurer cannot give PML access, under s 11A(3) of
the FOI Act, to the requested documents because they are not in his
possession. The documents are no longer subject to the FOI Act, so s 11A(3)
does not apply.
18.
Furthermore, I cannot make a decision on this IC review that PML be given
access to the documents it has requested. Section 55K of the FOI Act provides
that, in making a decision on an IC review, I may ‘perform the functions, and
exercise the powers, of the person who made the IC reviewable decision’ (s
55K(2)) and my decision ‘has the same effect as a decision of the agency or
Minister who made the IC reviewable decision’ (s 55K(3)). In this case, a
previous Treasurer was the person who made the IC reviewable decision, but
(because of s 20 of the Acts Interpretation Act) the current Treasurer is that
person for the purposes of s 55K. This means that I can only make a decision on
this IC review that could be made by the current Treasurer. The requested
documents are not in his possession, so I cannot decide that he give PML
access to those documents. (This would be the case even if I had possession of
the documents myself.)
19.
The Australian Information Commissioner has issued Guidelines under s 93A to
which regard must be had for the purposes of performing a function, or
exercising a power, under the FOI Act. The Guidelines explain that the
application of the FOI Act to documents ‘in the possession of a Minister’
excludes by implication documents held by a former minister.3 Section 13(1) of
the FOI Act also recognises that a document that a Minister has placed in the
care of the National Archives of Australia shall not be treated as a document of
an agency under the FOI Act. Those documents may, however, be available
under the Archives Act 1983.
20.
The documents that PML has requested are no longer official documents of a
Minister because they are no longer in the possession of the Treasurer. The FOI
Act no longer applies to the documents.
3
Office of the Australian Information Commissioner, Guidelines issued by the Australian
Information Commissioner under s 93A of the Freedom of Information Act 1982 [2.25].
4
Documents held by the Treasury
21.
As noted above, the Treasury has the documents that are the subject of this IC
review. Section 16(1) of the FOI Act provides that, where a request is made to
an agency or a minister that does not have the requested documents, the
request can be transferred to the agency or minister that does. There is no
analogous mechanism in the Act in relation to IC reviews; even though the
Treasury has the documents, it cannot become the respondent—or the person
who made the IC reviewable decision—in this IC review.
22.
However, it is open to PML to make a fresh FOI request to the Treasury in
relation to the documents, which are now documents of an agency for the
purposes of s 11(1) of the FOI Act.
Decision
23.
Under s 55K of the FOI Act, I vary the Treasurer’s decision of 29 June 2011. The
documents sought are not official documents of a Minister. The FOI Act does
not apply to the documents.
James Popple
Freedom of Information Commissioner
13 December 2013
Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the
FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides
independent merits review of administrative decisions and has power to set aside, vary, or affirm an
IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the
IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may
be payable when lodging an application for review to the AAT. The current application fee is $816,
which may be reduced or may not apply in certain circumstances. Further information is available on
the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.
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