Sensitive emails, file notes and records of conversations between former prime minister John Howard and his ministers and the former United States president George Bush and other US officials about David Hicks are set to be released after a three-year freedom of information battle.
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The Office of the Australian Information Commissioner has slapped down a string of excuses from the Department of the Prime Minister and Cabinet for not divulging sensitive government communications relating to the repatriation and plea deal for the former Guantanamo Bay detainee.
Commissioner Timothy Pilgrim has told the Prime Minister's Department it has no reason to refuse an application for the documents under freedom of information rules and its excuse that it had to "consult foreign governments" was not valid.
The Department of the Prime Minister and Cabinet now has 30 days to process the freedom of information application which was lodged in 2012 by human rights advocate Aloysia Brooks.
Dr Brooks has asked for emails and communication between Mr Howard, former attorney-general Philip Ruddock, former foreign minister Alexander Downer, former Australian ambassadors Dennis Richardson and Robert McCallum and Mr Bush and former vice-president Dick Cheney and former secretary of defence Donald Rumsfeld.
Dr Brooks said she was very pleased with the decision given she had been informed that no electronic communications were available because Mr Howard had taken his email communications with him when he left office.
"It is a massive win. They have been fighting tooth and nail to stop me getting these documents," Dr Brooks said.
The secret government communications relate to the time when Mr Hicks was still in Guantanamo Bay – before he was pressured to make a plea bargain that would result in him being sent back to Australia before the 2007 federal election. Previous documents obtained by Dr Brooks have shown the political machinations that were going on behind the scenes at the time and the concerns that Mr Hicks' indefinite detention was damaging the Howard government.
Mr Hicks was captured in Afghanistan in late 2001 and turned over to the United States, before being taken to Guantanamo Bay in the first batch of prisoners to be incarcerated there. He was held for five-and-a-half years before being convinced to give an Alford plea – which is not recognised in Australia – which meant that he did not make any admissions.
He was convicted of providing material support for terrorism and allowed to return to Australia to serve a seven-and-a-half -month sentence.
He has since had his conviction quashed.
The Department of the Prime Minister and Cabinet had argued against processing the freedom of information request saying it would divert too many resources because of the time that would be needed to track down and consult with former US officials who may be hard to find as well as the five prominent Australians mentioned .
But the commissioner said that there was no need to consult with foreign government officials when the documents did not touch on their personal privacy. He found there was no basis for a "practical refusal" under the FOI act.
Dr Brooks is also suing the FBI and the CIA in a bid to get access to secret US government documents she has tried unsuccessfully to obtain under freedom of information laws.
Dr Brooks launched a freedom of information lawsuit last year, a move that places the burden on the US government to explain to the public why it has been withholding information
