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Thursday, February 11, 2010

Yes Minister: political interference in Freedom of Information decisions

"Last summer, Sebastien Togneri (a top political aide to the Minister) issued a terse email to officials in the Public Works Department telling them to "unrelease" a report on the government's real-estate portfolio when he learned it was being sent uncensored to The Canadian Press. The news agency had asked for the 137-page document under the Access to Information Act, and had paid all photocopy fees. Togneri insisted that only 30 pages be released. The file contained sensitive information about the performance of the government's real estate portfolio, such as missed targets and high maintenance costs. A bureaucrat had to dash down to the Public Works mailroom to retrieve the sealed package. And for the next three months, public servants, Justice Department lawyers and consultants all agreed there was no legal basis to withhold any of the document. Despite that consensus, Togneri's view prevailed and the heavily pruned report was sent to The Canadian Press 82 days later than required by the law."

When this was revealed, according to The Canadian Press, the Minister didn't even thrash Togneri with a feather, commending him as "an employee who has exceptional parliamentary skills." Then, I expect to Togneri's delight, announcing "he won't be in charge of access-to-information files anymore." There has been plenty more in the news in Canada about this since, with claims it was an isolated incident and the Prime Minister's Office restating ministers staff should not interfere in such things.

The point in drawing attention to this Canadian story is that in three Australian state jurisdictions this sort of conduct could see the Tognieris of this world in serious hot water. New FOI laws in  Queensland (commenced)  NSW and Tasmania (yet to commence) include offence provisions for the first time. They're laws you hope never need to be used but their presence on the statute book would have to have a salutary effect. Togneris in Canberra however needn't be alarmed-there is nothing of this sort in the Commonwealth Freedom of Information Act,  and no glimmer of interest in going down this path, as evidenced by the Government's FOI Reform Bill, now before Parliament.The states' move is an example of an emerging Australian standard ignored by the Commonwealth Government in its reforms.
Section 175(1) of the Queensland Right to Information Act 2009 creates an offence where a person gives a direction to a person authorised to make a decision under the Act that the person believes is not the decision that should be made. Section 175(3) creates a separate offence for giving a direction orally or in writing to an employee or officer or to an employee of a Minister involved in a matter under the Act, directing the person to act contrary to the requirements of the Act.

The NSW Government Information (Public Access) Act Section 9 (2)) contains a provision that an agency is not subject to direction or control by a minister in dealing with an application for agency information. The Act also includes offence provisions (Sections 116-121) for acting unlawfully, directing unlawful action, improperly influencing a decision on access, misleading conduct or deception, and the concealment or destruction of government information to prevent disclosure.

Section 50 of the Tasmanian Right to Information Act creates an offence where a person deliberately obstructs or unduly influences another in the exercise of the power to make decisions in accordance with the Act; and where a person deliberately fails to disclose information the subject of an application where the information is known to the person to exist.

But nothing in the Federal Government's FOI Reform Bill now before the Parliament along these lines. There has been, and continues, a perception of political influence in some areas of FOI decision making, or at least over-responsiveness to ministerial concerns about dealing with applications for agency documents containing politically sensitive information.Offence provisions would strengthen the position of the determining officer in making the correct decision on an application and in the promotion of a culture consistent with the Act’s object.

To make matters worse, the Commonwealth FOI Act contains a provision (Section 23) that will remain unamended by the Reform Bill, that authorises a minister to decide any application for an agency's documents should the Minister choose to do so. No information is available on if, at all, when and how this  authority may have been exercised over the last 27 years.

The Senate Committee examining the bills should have a closer look at these issues.

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