The Australian Information Commissioner (“AIC”) handed down its decision on 8 February 2018 with respect to Nick Xenophon’s application to review the Department of Health’s (“Department”) decision to refuse access to the legal costs invoiced in relation to arbitration between the Commonwealth and Phillip Morris Asia Limited (Hong Kong).
The Department contended the document was exempt in full pursuant to section 33(a)(iii) of the Freedom of Information Act 1982 (“FOI Act”) on the basis that access to the document could cause damage to international relations of the Commonwealth. The Department submitted that the disclosure of the legal costs would adversely affect Australia’s standing as a world leader in the tobacco industry.
The AIC was of the opinion that the legal costs incurred are unique to each case and does not necessarily mean that the information gathered in this specific litigated matter would dissuade other nations from defending their position through litigated means.
The AIC agreed with Nick Xenophon that disclosure of the information would demonstrate Australia’s commitment to regulate the tobacco industry and objectives of the World Health Organisation, rather than diminish Australia’s standing in the industry. Accordingly, the AIC found the document was not exempt and the Department must hand over a copy of the document.
The full judgement can be accessed here.