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Friday, November 11, 2011

Serco contract disclosure illustrates some FOI progress

And some way to go as well.

New Matilda has published details from the 2009 Department of Immigration and Citizenship (DIAC) contract with British multinational Serco, obtained through an FOI request by London based freelance journalist and blogger Paul Farrell. Parts of the contract as executed have been withheld including some parts that the decision maker apparently considers should be released, but can't be released at this stage as Serco objects and has rights of review. (The decision notice is unclear about what is in this category.)

Courtesy of New Matilda 
View the FOI officer’s decision and a list of the folios withheld.

New Matilda separately has published what it says is a leaked version of the contract, providing an opportunity for some interesting analysis of the FOI decision by those with the time and interest. However that copy is marked throughout as "Public Release Version" so it may be incomplete in some respects.

Again courtesy of New Matilda see the leaked version of the contract here.

The pages of the executed contract released under FOI are all marked "Commercial in Confidence."

While acknowledging the Freedom of Information request raised some complex issues, the application was dated 14 December 2010, the response 2 September 2011. Some aspects are still to be determined. Presumably the absence of any reference to charges was because the request was not dealt with within time, or additional time granted by the Australian Information Commissioner. And some of the following claims are at least open to question.
 
The DIAC decision maker claimed exemption for information:

  • that has a commercial value to Serco that would be destroyed or diminished- by revealing information supplied by Serco on a confidential basis that if disclosed would be used by competitors, and information about an unnamed second business entity presumably related to Serco (s 47-an absolute exemption, no public interest test),
  • that would have a substantial adverse effect on the property interests of the Commonwealth-by revealing information about the value of department's assets throughout the detention network including replacement value for client accommodation, client amenities, necessary equipment and security status (s 47D-a conditional exemption subject also to a determination that disclosure on balance would be contrary to the public interest),
  • that would have a substantial adverse effect on the proper and efficient conduct of the operations of the agency- by revealing information that would hinder its ability to  successfully conduct tender processes and to enter into contractual arrangements (s 47E-a conditional exemption),
  • that would involve the unreasonable disclosure of personal information about third parties-by revealing the names and positions of individuals within Serco (s 47F(1)-a conditional exemption).
Difficult to make a quick judgment about the strength of these claims without going through the documents closely (I haven't). Farrell has told me he is challenging the September decision.There would appear to be room for argument on points of detail, despite the likelihood of a bevy of lawyers standing invisibly behind the notice of decision as drafted. The exempt status of the value of DIAC assets, and the names and positions of individuals in Serco involved in the contract, are two examples.

And an observation that the new (well 12 months old) provisions in the act and government policy make a difference. Under the ancien regime I expect the whole thing would have been tightly held with the marking "Commercial in Confidence" being waved around to trump all other considerations. The decision letter refers specifically to the regard paid "to the Government's policy of promoting a "pro-disclosure" culture across government." I'm sure those inverted commas as they appear in the original aren't meant to convey anything other than a warm embrace of the idea in Immigration, an agency that has a history of struggle with FOI over the years.

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