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Friday, May 22, 2009

South Australia FOI concerns not unique

South Australia has been one of the blanks (with Victoria and Western Australia) on the Australian map of the Freedom of Information reform movement of the last couple of years. Still nothing from the Government but last week former minister, now Family First member of the Legislative Council Robert Brokenshire introduced the Freedom of Information (Victimisation and Interference) Amendment Bill (Hansard LC 13 May).

Bill would create offences for interference with or direction to decision-makers, and tip-offs that an application has been made, and enact safeguards to protect determining officers from detriment or victimisation in carrying out duties. Brokenshire was prompted to act by concern about the implications of these paragraphs from the Government's Guidelines for staff dealing with FOI applications:
"When the application is received, it is important to decide if the application is significant and/or sensitive and whether the minister should be notified.

“Notify your minister's office through your accredited FOI officer immediately if you receive an application from a member of parliament or from the media. If the application is considered to be sensitive in nature, or involves information of a non-personal nature, e.g. budget papers, reports and contracts etc., or if you are aware that a similar application has been made to another agency."

"Where the minister's office has specifically advised that they wish to see the final determination...then determinations in relation to the following kinds of applications should be forwarded to your minister's office—two full working days prior to the determination being released to the applicant...applications made by members of parliament, applications made by the media or all applications that are not about personal affairs, e.g. budget papers, reports, contracts, etc”.
Brokenshire added that in several cases departmental FOI officers are also ministerial liaison officers, or are situated within the minister's office. One of his amendments would prevent this.
"Clearly, there is a conflict of interest. How can you perform your duties to the letter of the law on freedom of information if you also have a job as a ministerial liaison officer, advising and liaising with the minister? It is a clear conflict for those people."
He concluded with a tribute to FOI officers. This is rare so those of you anywhere who deserve it, take a bow:
“Theirs is actually a thankless job, and I have great respect for all of them. I have found them to be constructive, polite, friendly and understanding in the various freedom of information applications that I have made. Together with my staff, I have at times found when working with them that their job is incredibly difficult. They are compromised because of those guidelines, which are only that: guidelines set up by this government. The guidelines have never before been designed for FOI officers, as I understand it. These guidelines have been set up just to try to circumvent the legislation passed by the parliament. My bill is intended to offer FOI officers the protection they deserve so that they can do their job without fear or favour to the government of the day."
No other speakers so far so where this goes is in the lap of the gods-not a safe place to be given the realities of the numbers in the SA Parliament.

The matters highlighted are not unique to South Australia.
Perceptions of political interference or excessive responsiveness by public servants to political considerations have plagued FOI for years. Some guidelines, like those in SA and the law itself don't help. Victorian guidelines also provide for submission of FOI determinations to the minister's office prior to notification to the applicant. Some might be surprised that the Commonwealth and Victorian acts confer powers on a minister to determine any application for an agency's documents (hopefully rarely if ever used).

Change is on the way, in some places. The Queensland Right to Information Bill would create an offence for giving a direction to act in a certain way knowing this is a decision that should not be made.
The NSW Open Government Information Exposure Draft Bill includes a provision that would preclude direction or control by a minister regarding an agency determination and offence provisions for doing something a person knows is contrary to the Act, directing unlawful action, influencing a decision, knowingly misleading a person in carrying out functions, or concealing or destroying information.The proposed Federal law changes don't go there- even leaving in place ministerial authority to determine an agency application. This and the need for stronger offence provisions were raised in my submission, the last point featuring in a couple of others as well.

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