The Attorney General sought advice from the Department before responding to the parliamentary question. The Department told us that it advised the Attorney General not to provide the requested information and that this was based on advice from the SSO that the information was subject to public interest immunity.
The Attorney General’s notice to us stated that the requested email formed part of a consultation process on a draft enactment and that its disclosure to Parliament would prejudice the proper workings of government.
We asked the Department to see the requested email. The Department declined our request, citing SSO advice that it is subject to public interest immunity. We asked the Department to see its advice to the Attorney General and the SSO advice it received. The Department declined our request and referred us to the SSO.
We wrote to the SSO requesting a copy of the email, or to view it. Our request was declined as, in the SSO’s view, allowing us to view the email would be inconsistent with the document’s public interest immunity status. Instead, the SSO offered to provide some other evidence to confirm the existence of the requested email and its subject matter.
However, our inability to view the email in its entirety limits the scope of our work. Without access to it we cannot assess if the information it contains is inherently confidential (sufficiently secret and significant), and whether it is in the public interest for the information to remain confidential.
I note Clause 6, in Schedule 1 of the Freedom of Information Act 1992, which exempts the release of information that may reveal a deliberative process of government, a Minister or an agency. This includes opinions, advice or recommendations, consultations or deliberations. However, this exemption is not automatic and does not apply if the information is merely factual or statistical in nature, or if the public interest outweighs the reasons for withholding it.
The Australian Auditing and Assurance Standards, which we comply with when conducting our audits and investigations requires auditors to have sufficient appropriate evidence on which to base an opinion. I am therefore unable to form an independent opinion on the reasonableness and appropriateness of the Attorney General’s claim of public interest immunity without an assessment of the email’s content.