FOI reaction: dismay in all quarters except government

Extensive coverage of the High Court decision (see item below) in the media today includes these editorials in The Australian, Sydney Morning Herald, Herald Sun and Daily Telegraph, and analysis by Matthew Moore in the Sydney Morning Herald and Matthew Ricketson in The Age.

Last night's 7.30 Report on ABC Television includes comment by the Treasurer Peter Costello to the effect that just about every past Treasurer has issued conclusive certificates, and that after about 50 had been issued, the Australian Government Solicitor's Office stopped counting. As we mentioned yesterday there is no reporting requirement for the issue of conclusive certificates by Federal ministers, so no one anywhere seems to be keeping track.

After yesterday's decision, numbers will be on the rise.

Treasurer Costello also said that the documents sought were "drafts or internal working documents" and the FOI Act properly rendered them exempt. He failed to mention that Parliament didn't exempt draft documents and only provides for the exemption of documents containing advice and opinion where disclosure would be contrary to the public interest.

In any event there weren't many drafts among the documents sought. Here is a copy conclusive certificate of two of the certificates and the schedule of the large number of documents involved - only one is described as a draft.

One point missed in most of the commentary so far is that even if there had been a finding that the Treasurer did not have reasonable grounds to issue a conclusive certificate, the documents themselves could have remained secret. The Federal FOI Act (Section 58A) says that after such a finding, a minister may decide to not revoke the certificate and must simply inform Parliament of this within 5 sitting days. That would be the end of the matter.

We agree with all the commentators who suggest that the only answer to these gaping holes in FOI legislation is for reform, but I'm afraid this will only happen if there is a strong, concerted campaign to force government to adopt and fully implement open government principles.