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Wednesday, March 09, 2011

A DFAT FOI case study- in excessive caution

In commenting on Fergus Hanson's paper about e-diplomacy last November I opined  that Australia's approach to transparency in the management of foreign policy and the conduct of international relations was marked by excessive secrecy and an abundance of caution. Let me share a small relevant case study, not significant in itself but perhaps an indicator of first instincts in the Department of Foreign Affairs and Trade.

The information

Australia has MOUs on consular sharing arrangements, including the Australia Canada Consular Sharing Arrangement; arrangements with Papua New Guinea on provision of consular and visa services (stemming from the 1975 PNG Independence Act) and on Consular Consultations with the United Arab Emirates, China, Vietnam, Indonesia and others.

And Allied Pickfords does business with the Department of Foreign Affairs and Trade.

What's the story?

So what you say? Me too.

But in response to a Freedom of  Information application made last November for documents about preparatory steps being taken in DFAT to deal with last year's changes to the FOI act including the publication requirements to commence on 1 May, Dominic Trindade, Assistant Secretary Domestic Legal Branch DFAT in late January granted access to everything the Department held-with the deletion of this information.

Why so?

On the consular sharing arrangements, Mr Trindade decided the names of the countries that Australia had consular agreements with was exempt information. Disclosure would or could reasonably be expected to cause damage to Australia's international relations. This judgment was because
"it is important that the good relations enjoyed by Australian Government officials with persons holding senior public positions of authority in those countries are maintained to ensure their willingness to cooperate and communicate with Australian government officials in future. In my view, release of this material could compromise the effectiveness of our post in undertaking its responsibilities to Australian citizens in dealing with the authorities. it could also undermine the Government's relations with particular countries, impairing that relationship and possibly relationships with other governments in those regions."
In another document concerning the soon to commence publication requirements of the FOI law it was recorded that "private companies and contractors doing business with the Department may have commercial in confidence issues with publishing the material (eg....)." The name of the company cited as an example was deleted.

Mr Trindade determined this information concerned the business affairs of an organisation and if disclosed could be expected to unreasonably affect it in respect of its lawful business affairs, and would be contrary to the public interest. He wrote that he decided to exempt the name of an organisation 
"that has private commercial dealings with DFAT... In my view, releasing the identity of this company would involve the unreasonable disclosure of the commercial activities of that company.The public interest factors in favour of release, including the right of the public to access Government held documents, are outweighed by the importance of that company's right to conduct its business affairs and dealings in private."
Even though not central to my interest in making the FOI application, the reasons given for the deletions sounded weak, unpersuasive, and close to formulaic with little direct relevance to what had been omitted. I sought internal review of this aspect of the decision.

Internal review

In the application I pointed out that the signing of a consular agreement with another country hardly qualified as a state secret as in most cases it would be associated with some signing ceremony at ministerial level or a public statement; that the existence of agreements would be known to the counterpart and other countries as well; and that information of this kind was publicly available in other countries, citing the US  where I was at the time as an example. I couldn't see how disclosure was going to hamper our diplomats in carrying out their work.

And regarding the disclosure of the name of a company conducting what was described as "private" business with a government agency, the usual expectation would be that this would not be sensitive or cause damage to the company if disclosed. Most companies shout the fact they have a government client from the roof top. In addition details of contracts for more than $10,000 are available online on the Austender website. All that was before we got to new legislated public interest factors that, since 1 November, weigh in favour of disclosure and were not mentioned in the decision letter.

Decision overridden

This week Richard Rowe Senior Legal Adviser International Organisations and Legal Division wrote in response to the internal review application releasing all the deleted material "following fresh consideration including through additional consultations.."

The information

So now with the information in hand I find as expected that information about the consular agreements previously regarded as highly sensitive was in the public domain all the time.The Australia Canada Consular Sharing agreement is on the Canadian Department's website Then Foreign Minister Downer issued media releases about the agreements with China, and Vietnam. Then Foreign Minister Smith issued a media release announcing the signing of an agreement with the UAE. Indonesia announced its consular agreement with Australia.

I couldn't find the Allied Pickfords' engagement with DFAT on AusTender. But its not going to be fussed that it's now known it has DFAT as a client: its website says it has been providing  "professional moving services since the seventeenth century." It will survive this development for sure.

Wider implications

This is just a small matter and I wouldn't normally make much of it. However the knee jerk resort to secrecy concerning inconsequential information and the overblown statement of the consequences of disclosure (overridden at a more senior level after some prompted reflection) does suggest  at least excessive caution in DFAT in guarding the information vault. Not to mention the unnecessary time and cost to taxpayers from not getting this right in the first place.

The original determination was consistent with other developments such as DFAT's decision, in contrast to about a dozen other agencies, not to publish anything contained in the incoming government brief (the Red Book) prepared in the lead up to last year's election.

Managing foreign policy and the conduct of international relations against the backdrop of changing attitudes to openness and transparency here and in the world around us will require a significant shift for DFAT and other agencies with a stake.Tone at the top, leadership, example, the ability to get the balance right between the need for secrecy, the maintenance of our relations with others and the demands for openness-as well as full and enthusiastic implementation of the new FOI law- all need to become part of DFAT's agenda.

More in another post soon about DFAT's preparedness for FOI change.

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