Some SA standards best left behind

The new director general of the NSW Department of Premier and Cabinet Chris Eccles has a big job on his hands as he starts today. We wish him well. Fresh from South Australia where he headed the Premier's Department for the last two years, Mr Eccles will find many things different in NSW. One of the few on the plus side is a more modern legal framework regarding government transparency. The new government he is to serve also says its into better governance, with promises that include more open and accountable government. As previously noted here, on the freedom of information front, SA seems firmly stuck in pre-reform mode.

In February, South Australian Ombudsman Richard Bingham in Lucas and Department of Premier and Cabinet overturned a Freedom of Information decision by Mr Eccles on internal review, that parts of documents held by the Premier's Department containing names of persons and organisations they represented who attended functions hosted by SA Progressive Business (SAPB), the fund-raising arm of the South Australian branch of the Australian Labor Party (ALP), were exempt.  The Ombudsman was critical of the six months it took the Department to make the original determination, commenting

"(i)t is incumbent on the agency to ensure that it is adequately resourced to deal with applications in accordance with the FOI Act."

In his decision, Mr Eccles relied on Section 7(1)(c) to claim the exemptions- information of commercial value that if disclosed would have an adverse effect on business affairs or prejudice future supply of information, and disclosure would on balance be contrary to the public interest. During the Ombudsman's review, some of the third parties supported this argument and raised other exemption issues including separate aspects of  business affairs, and confidentiality. The Ombudsman rejected the submissions and ordered disclosure.

On the s 7(1)(c) claim the Department submitted [43]:

The attendance of persons from private sector organisations at SA Progressive Business functions is commercial information attaching to those organisations, is not made public, and is often information those organisations would not wish competitors in their industries to know. I therefore consider that the disclosure of this material could be reasonably expected to have an adverse effect on those person’s business affairs.

The Ombudsman said [42]:

On the facts of this case however, I am not satisfied that the identities of the third parties, or the organisations they are associated with, constitute information concerning the business affairs of the individuals or the organisations in the context of the relevant documents. Much of the information concerns, in essence, individuals scheduled to attend a function, and reveals the organisations they were associated with at the relevant time.

In respect of related arguments put on behalf of some third parties, the Ombudsman said [45]:

I am not persuaded that it could reasonably be expected to follow that the third parties, or organisations they represented, would be adversely affected by release of the relevant documents. In saying this I note that it is commonly understood that organisations lobby the government and the opposition alike, and that this does not necessarily mean an affiliation exists with a particular political party. Such an approach is thought to demonstrate common business practice. Furthermore, as I have previously indicated, a significant amount of information demonstrating links between SAPB or the ALP and named individuals and/or organisations is publicly available, or has previously been released to the applicant.

While it had nothing to do with the Department or Eccles, a submission put to the Ombudsman on behalf of one of the objecting third parties [47] is, well, quaint to say the least:

Third party 10 claims that the relevant documents contain ‘commercially sensitive trade secrets which are of commercial value’ to the company they are associated with and another company (the other company), and information concerning the commercial affairs of those companies. Third party 10 considers the fact of their attendance at an SAPB function, among other things, to be exempt, because it may inform competitors of their ‘confidential marketing activities, business strategy and business dealings’, which may in turn adversely affect the company and the future supply of the information to the agency.

The Ombudsman rejected the arguments against and ordered all documents in dispute to be released in their entirety.