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Monday, January 17, 2011

Some cabinet papers still too sensitive after 30 years

National Archives of Australia released the cabinet papers of 1980 under the 30 year rule on 1 January. Archives are moving towards open access after 20 years, but NAA didn't have resources to release the 1981 records, as required in what would have been the first step in this transition. Over 3000 documents were released, with about 25, around the same number as last year, withheld, three entirely including the subject, and parts of others.

Section 33 of the Archives Act provides exemptions from open access, most similar to the FOI exemptions. All exemption claims this year cited section 33(1)(a) ( reasonably expected to cause damage to the security, defence or international relations of the Commonwealth), with section 33(1)(b) (information communicated in confidence by a foreign government or an international organisation which the foreign entity advises is still confidential, and the confidentiality of which it would be reasonable to maintain) given as an additional reason in many cases. Section 33(1)(j) (unreasonable disclosure of information concerning business, professional  commercial or financial affairs) and section 33(2) (legal professional privilege and disclosure contrary to the public interest) were each utilised as additional reasons for one exemption claim.

Outsiders can't judge whether we have examples here of excessive secrecy. We are left to ponder just what could be still be too sensitive to release, 30 years after the event, on two subjects that can't be mentioned. And what might have been removed from documents with titles that include:

Recovery of damages awarded by foreign courts in anti-trust proceedings
The implications of recent events in Afghanistan for national strategic assessments and strategic policy
Australian strategic analysis and defence policy objectives – 1979 (supplementary submission) 
Iran crisis – issues and options for Australia 
Acquisition of IBM computer
Antarctica – Australia’s policy at the conference on the conservation of Antarctic marine living resources.

While it didn't get much of a workout on this occasion, the Australian Law Reform Commission in a Report on Review of the Archives Act in 1998 recommended (166) that legal privilege should not be included in (proposed new) legislation, one of many recommendations not acted upon.
Plus ca change:
Freedom of Information legislation was an issue in 1980, with a Senate committee report that recommended improvement to a draft government bill to introduce the concept that had been kicking around for years. Malcolm Fraser's book last year provided some of the flavour of public service advice/resistance to what was being proposed. The Canberra Times in its 1 January coverage (no link available) reported on comments by Finance and Treasury on the suggestion that the AAT should have a role in determining the status of sensitive business information:
The Finance Department, led by Ian Castles, argued in a cabinet submission it was "concerned about the significant cost implications of the existing Bill and of some of the proposed changes". "Finance is opposed, as a matter of principle, to the proposal to appoint a 'referee' (an appeals tribunal) and believes that the final decision on whether to release confidential information should rest with the suppliers." The Treasury, whose secretary at the time was John Stone, also warned ministers they should be "left in no doubt whatsoever as to the cost and resource implications of this (and related) legislation, and the effect that all this will have on the efficiency of government administration".The department, with Finance's support, also said businesses that supplied information to the government were best placed to decide what to make public.
"Treasury has expressed the view that the judgment as regards release of confidential commercial information should be left to the supplier of the information, who would be the best judge of whether its release would be harmful to his own commercial interests." Other government agencies, including the Prime Minister's Department and the now-abolished public service board, also warned against the costs of implementing the law.

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