The details of PIAC's six year FOI battle with Defence

The revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year Freedom of Information battle, raise many questions about policy, accountability and transparency going back to 2003. Congratulations to those at PIAC who stuck on with this proving the importance of FOI law, ongoing close examination of its adequacy, and the way it is being implented.

On the substantive issues, PIAC concludes there was a deliberate attempt to avoid obligations under international law through a legal fiction that those captured by Australian forces were not Australia's responsibility; that Australia had prior knowledge of illegal detention practices in Iraq including at Abu Ghraib; and that the Government misled Parliament and deliberately withheld information from the public relating to detainee mistreatment in Afghanistan and Iraq. PIAC, with support so far only from The Greens, calls for an independent inquiry to answer the range of questions that arise. The Sydney Morning Herald provides this summary and opinion-I'm sure plenty more yet to come.

As to the FOI battle Dominic O'Grady of PIAC provided Open and Shut with the summary below. Clearly complex issues arose for Defence in dealing with requests of this nature. However delays that mean some of this comes to light six years on is unacceptable. Important parts of the record have still not been released. Defence acknowledged it got it wrong on Abu Ghraib in 2004 even as it was publicly defending its actions. The contrast is marked with the US where 100,000 documents about these matters has been released publicly, and the UK where the All Party Parliamentary Group on Extraordinary Rendition (APPGER) has been looking at these issues since 2005, and has published information obtained under FOI about the UK’s involvement in extraordinary rendition. O'Grady's summary reads: 

The initial FOI request was lodged with the Department of Defence in June 2005. PIAC sought access to documents relating to Australian Defence Force operations outside Australia since 11 September 2001, involving the apprehension, detention or transfer to other military or civil authorities of individuals suspected of being terrorists. PIAC sought documents relating to detainees who were under the supervision of ADF personnel. PIAC also sought documents relating to the treatment of detainees under the control of the United States.

(Comment: broadly framed applications like this might be expected to raise the issue of substantial diversion of resources, but Defence would have to demonstrate unreasonabilty as well. Or if not diversion of resources, at least involve significant cost to the applicant, although waiver or public interest rebate may have been argued. PIAC didn't mention that either issue arose.)

The Department of Defence took more than three years to reach a decision in response to PIAC’s request. In August 2008, the Department of Defence identified 222 documents that were deemed relevant to the FOI request, from 3000 that had been reviewed. However, PIAC was given access to just 21 (one released in full, 20 with redactions) of the 222 documents. The Department of Defence claimed that 199 of the documents were fully exempt from disclosure because they affected  national security, defence or international relations.

(Comment: "affected" isn't sufficient for such an exemption claim. "Cause damage" are the words used in the act and presumably addressed in the decision. These grounds for exemption are absolute and do not involve any public interest test. We should have a think about that.)

The Department of Defence did not provide PIAC with copies of the 21 documents until February 2009. In April 2009, PIAC sought internal review of the Department of Defence decision not to release all the documents. As the Department of Defence did not respond, PIAC asked the Administrative Appeals Tribunal (AAT) to review the decision in June 2009. In July 2009, the Department of Defence acknowledged that it had “inadvertently overlooked” a number of documents when the original decision was made. The Department also acknowledged that its August 2008 decision did not provide sufficient detail to allow PIAC to understand the decision. Throughout 2009 and 2010, through conciliation processes, PIAC succeeded in gaining access to a significant number of documents (approximately 160), which had previously been withheld by the Department of Defence. Many of the documents, which the Department of Defence originally claimed as being exempt from release, were subsequently released to PIAC. Some parts of the documents were released to PIAC with extensive redactions. That is, the Department of Defence blacked out those parts of the documents that it believed were exempt from disclosure. These documents were subsequently re-released with the previously redacted sections revealed.The matter did not proceed to a decision by the AAT.

(Comment: Senator John Faulkner as Minister for Defence was talking up the improvements in managing FOI in the department in August 2009, around the time things were taking a turn for the better for PIAC)