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Thursday, March 31, 2011

Tell the world or dud the journalist FOI applicant

In a submission to the Australian Information Commissioner on the Discussion Paper, Disclosure Logs, Professor Rick Snell has a suggestion for addressing the concern of journalists over potentially losing exclusive rights to material released in response to a freedom of information application when an agency simultaneously posts in the disclosure log at exactly the same time documents are released to the applicant:
"I would suggest the Information Commissioner adopt a guideline whereby the applicant can make a request on whether any released information be delayed from general release up to the 10 day maximum period. The applicant making this request should justify where it is in the public interest for the Agency to delay updating the Log for this specified period. Some applicants will be happy with immediate release, other applicants such as journalists, researchers or members of parliament or NGOs may have good reasons to have a period of exclusive access. Where applicants do not specify a grace period then the Agency is free to publish at its discretion."
He disagrees things simply should be left entirely to an agency or minister
"I would reject the suggestion that “Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.” This option gives too much discretion to agencies and does nothing to prevent the manipulation of the timing to disadvantage particular applicants including, but not exclusively, journalists. The alternative of allowing the applicant to nominate the grace period rewards and protects certain users and adds little extra burden or restrictions on agencies."
This makes sense-if any Commissioner guideline can be made to stick. I've mentioned previously that a guideline to which an agency "must have regard" might fall short if and when push comes to shove, and won't necessarily guarantee a uniform approach across government.

Conrad Poirier WikiMedia Commons
Michael McKinnon of the 7 Network told the National Information Law Conference last week of several instances of Treasury going out of its way to provide other journalists with information sought in applications by him, presenting them with the story on a plate with exquisite timing, and leaving him with not much at all.  While acknowledging the point also made at the Conference by Professor McMillan that governments always have the right to release information whenever they like, when this is done to spite the applicant and for no legitimate public purpose it sounds unethical to me.

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