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Thursday, September 16, 2010

A few cracks in Queensland's "best of breed" law

In an opinion piece in today's Courier Mail, I point out that recent concessions to local government there put something of a dent in Queensland Government claims to lead the nation on open government. Amendments to the Right to Information Act passed in June exempt from disclosure information considered in the course of a local council's budgetary processes, and accord the work of the Brisbane City Council's Establishment and Coordination Committee, consisting of the Lord Mayor and the chairs of other council committees, the same level of cabinet secrecy claimed essential to the operation of government at state and federal level. Both sides of parliament supported the changes. Only the six independent members of the Assembly voted against.

There is no harm test - both exemptions protect innocuous as well as other information for 10 years after it comes into existence - or any requirement to weigh public interest factors that would require consideration of benefits of disclosure of particular information. Reasons given for the changes are weak and unconvincing.

"Information brought into existence in the course of a local government’s budgetary processes” is broad and imprecise and capable of wide interpretation by councils. Local Government Minister Boyle said at the time, perhaps more in hope than anything else, that councils didn't have to use what amounts to a discretion to refuse access.This exemption is based on a similar exemption in the RTI act since inception for information held by an agency other than a council. There was no reference to exemptions of this kind in the Solomon Report. The Premier's response to the report includes this statement:
The government also considers that there is a compelling public interest in protecting the confidentiality of material prepared in the course of budget deliberations, particularly in terms of options for budget revenue and expenditure measures, and will also include this material in the Cabinet exemption.
Nothing else was made of this at the time. I'm not aware of any similar broadly drawn blanket exemption in other FOI/RTI acts for government agencies or local councils, or any precedent elsewhere for giving a local council committee a cabinet type exemption.

The text of the article follows-it didn't make it into the online edition of the paper.

Councils stitch up openness
Peter Timmins

THE Queensland Government has set its sights on leading the nation on open government and, to that end, will be co-hosting a Right to Information day on September 28 with the Office of the Information Commissioner. On the night before, Premier Anna Bligh will introduce author Don Watson who will deliver the Solomon lecture on the topic of "The accessibility of public language". In contrast, however, the State Government has recently made concessions to local government that are not consistent with its expressed aims of openness.

Parliament passed amendments to the Right to Information Act in June that provide unique protections for Queensland local councils and Brisbane City Council. Council budget processes are now exempt from disclosure and the BCC's Establishment and Coordination Committee is accorded the same level of cabinet secrecy claimed essential at state and federal level. Any council can now refuse access to information brought into existence in the course of budgetary processes. Local Government Minister Desley Boyle justified the BCC exemption change by pointing to the need for councillors to be able to exchange views while maintaining the principle of collective responsibility for decisions. But she did not explain why committee business warranted blanket confidentiality, rare in access to information laws and unprecedented in local government.

The BCC lobbied the Government for change following a decision by Information Commissioner Julie Kinross on a Freedom of Information application lodged before the RTI act replaced the FOI act in July 2009. The application sought documents relating to the parity factor for properties that are part of community title schemes and which led to large rate rises for inner-city units in 2008. Commissioner Kinross ruled it was not contrary to the public interest to release information that showed council's decision-making process on a matter of significant community interest. By the time the issue of amendment to the law came before Parliament, BCC concerns about the need for more guaranteed confidentiality in the preparation of the budget had morphed into an issue claimed to affect all councils.

The changes are unnecessary because genuinely sensitive information held by the BCC and councils remains adequately protected by other RTI provisions. Innocuous information as well as information of significance is protected from public access by these exemptions for 10 years after the event.

The amendments rid local government of a nuisance posed by those seeking to scrutinise council activities. Putting the E&C committee on the same footing as federal and state cabinets values confidentiality above transparency and democratic scrutiny. With committee considerations and deliberations sealed off from public access, Minister Boyle said in June that the Premier would issue guidelines for the release of information about committee decisions. None has been published to date.

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