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Friday, October 17, 2008

A quiet approach to important FOI amendment in Victoria

The Age reported yesterday that an undercover officer from the police security intelligence group had infiltrated several activist groups including the Stop the War Coalition, Animal Liberation Victoria and Unity for Peace. The undercover agent also played a role planning this year's Palm Sunday peace rally and attended organising meetings with church and activist groups.The report included this:
"At the request of police, the State Government quietly amended the Freedom of Information Act in 2006 to prevent any document created by the police covert and intelligence unit from being released. This means people may not be able to access their personal files created by this branch of police."
The legislation that amended the Freedom of Information Act didn't go through too quietly- only parts of it did.

As the Attorney General told Parliament on 6 April, the Terrorism (Community Protection) Further Amendment Bill 2006 was all about " the state and national response to the threat posed by terrorism to the Australian community", and was "just one of a number of nationwide initiatives including engagement with various communities to eliminate the causes of terrorist activity". Not surprisingly it attracted the attention of members of parliament with speakers from both sides. But neither the Attorney General nor any of the other members who spoke in the Legislative Assembly made any reference to excluding from the FOI Act documents held by the Intelligence and Covert Support Department of the police force.

Only part of the bill was to amend the FOI Act.Here is what the Attorney General said on this aspect of the legislation in the second reading speech in the Legislative Assembly:

The bill also amends the Freedom of Information Act 1982 to clarify a number of technical and interpretative matters. Firstly, the definition of document in that act has been amended to ensure that the definition includes copies, reproductions or duplicates of a document and any part of a copy, reproduction or duplicate.

A technical amendment to section 25 of that act clarifies that the deletion of material from a document that would be reasonably regarded as not relevant to the subject matter of a request. This amendment simply reflects the current legal understanding of that act. An interpretative provision, clause 19 of the bill, will make clear that a document can be the subject of more than one exemption under the Freedom of Information Act at any one point of time. Again, this provision clearly establishes what is the well understood operation of the law in Victoria.

The amendments to section 29A of the Freedom of Information Act will extend the operation of this exemption provision to include documents created by the counter-terrorism coordination and emergency management department of the Victorian police force.

This provision will be retrospective in operation, however, I believe that honourable members will share the government's view that it is simply not appropriate, or indeed wise, that such material should be accessible under the state's freedom of information processes. Additionally, the bill makes clear that documents that are risk management plans of declared essential services under the Terrorism (Community Protection) Act or documents of a training exercise for declared essential services under the Terrorism (Community Protection) Act are also exempt documents for Freedom of Information Act purposes.

A further change (which is also reflected in the proposed amendments to the Public Records Act), is that exempt documents, as set out in section 29A, now expressly includes those documents whose disclosure could endanger the security of premises including land, building, places and vehicles.

"This change is consistent with the freedom of information legislation in New South Wales and public records legislation in Queensland and is intended to clarify the situation in relation to documents that relate to important state sites and buildings."

That was it from the Attorney on that subject, although the explanatory memorandum accompanying the bill may have been more comprehensive. Several Opposition speakers in debate on 4 May commented on the FOI changes and noted that some of the amendments to the FOI act went beyond those necessary to prevent terrorism.

No- one other than the Attorney General made any reference to the changes to Section 29 and neither he nor any other speaker mentioned an amendment that had the effect of including new subsection in Section 31 of the FOI Act- the law enforcement exemption-which provides:

"Notwithstanding anything to the contrary in this section, a document is an exempt document if it is a document created by the Bureau of Criminal Intelligence or (whether before or after the commencement of section 22 of the Terrorism (Community Protection) (Further Amendment) Act 2006) by the Intelligence and Covert Support Department of the police force of Victoria."
It all points up the need for close scrutiny of the fine detail of legislation and raises another issue: the justification for provisions in any of our freedom of information acts that have the effect of conferring blanket exempt status on all documents held or created by particular government agencies.

It's not just the Victorian act and not just police services that enjoy these generous exemptions.In NSW there is a long list (in Schedule 2 of the Act) of types of documents that are exempt because they relate to particular functions of specified agencies.When it comes to the Police in that state, documents created by the former Information and Intelligence Centre, the former State Intelligence Group, the Counter Terrorist Co-ordinationCommand, the former Protective Security Group, the former Special Branch, the former Bureau of Criminal Intelligence are all automatically exempt.

All the FOI acts include exemptions that cover information that should not be released because of the harm that would result including to the conduct of police functions in carrying out law enforcement and anti terrorist activity.Blanket exemptions for all documents of a certain kind put a large and unacceptable hole in the principle of accountability that underpins FOI legislation. There should be a compelling case made out for any such exemption.

In this instance the exemption for documents created by the Intelligence and Covert Support Department of the Victorian Police slipped through parliament very quietly, with the Attorney General aiding that cause.

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