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Sunday, May 27, 2012

Knowledge of subject and FOI both needed in reaching decisions on access

In the Senate Estimates hearing last week with the Department of Prime Minister and Cabinet, Australian Greens Senator Ludlam raised the handling of his freedom of information application for documents including communication with the governments of the United States and Sweden on the potential extradition or temporary surrender of Julian Assange. 

The request had been refused on the basis that processing would involve the substantial and unreasonable diversion of agency resources. The decision maker, Mr Peter Docwra, then the chief information officer had been deputy head of the WikiLeaks task force set up in PM&C following "cablegate". This wasn't mentioned in the FOI correspondence with Senator Ludlam who said he found out from the newspapers about Docwra's previous involvement.

(Update: Philip Dorling of Fairfax has obtained some heavily redacted documents.)

Senator Ludlam queried whether a decision on an FOI application should be made by the same person who authored the documents or was substantively involved in the matter in question, and in any event whether such an "interest" should be disclosed to the FOI applicant.

As officers and the minister at the table Senator Evans explained, the usual approach is for a request to be directed to the senior executive service officer most familiar with the subject matter who is then required to manage an effective search for documents and make a decision on access. 
So it is common for the decision maker to have been involved in work of the department that is reflected in the documents which are subject to the request. That said, a decision maker, in order to perform their functions properly, needs to be in a position to meet all the requirements of administrative law, including bringing an impartial mind to their functions. So, from time to time, if the subject matter of a request goes particularly to the personal involvement of the decision maker, the decision maker might say that they do not think it appropriate for them to make a decision. In that case, we would look for an alternative decision maker.
Senator Evans added it would be unrealistic to exclude anyone involved in a matter from consideration of an FOI request but the point raised about disclosure of a connection with the events themselves was a reasonable one that he would refer top the responsible minister (the attorney general.)
I do not think that it is an unreasonable point you raise and I am happy to refer to the minister for FOI the issue. I think it is the case though that where there is some expertise in a department the request tends to go to the officer with that expertise or in that particular section. To exclude people who have worked on those policy matters from being involved in an FOI request is, I think, unrealistic, particularly in small departments. The other thing I would say is I have had a concern, as have other cabinet ministers, that sometimes these decisions have been made at too low a level of officers without the appropriate sort of experience and broader understanding both to refuse and to release—and a couple of them have come as great surprises to the ministers who have not been told they had been released. But I think the point about potential conflict of interest is a fair one and I suppose I am happy to raise it with the minister. I do though make the point that in a smaller section everyone would have been involved in dealing with the issue. If you have got a section of four people who have expertise in the area they all would have been involved in dealing with it, so it is not quite as simple as might first appear. But I am happy to do that. I think it is a reasonable point. I think the officer was explaining that it is a sort of decision that the officer themself made and I guess you are looking for reassurance that that is the appropriate way of dealing with it.
Deputy Secretary Leon had the last word:
I only wanted to make the general point that the officer does not make this decision on their own. They are in regular communication and in receipt of advice from the FOI experts in the department led by Mr Amson who carefully explain to the decision maker the application of the act and the way the relevant exemptions have to be interpreted, so it is not a decision that a person is taking in the absence of guidance about the FOI Act itself.
It's one of those great debates-whether FOI decision making should be centralised with officers steeped in FOI but without necessarily much background in the subject matter of requested documents who do this sort of thing on a regular basis, or decentralised with responsibility resting with officers familiar with the subject matter but perhaps limited knowledge of FOI and who may make an FOI decision infrequently.

The decentralised PM&C model makes sense in most instances-along the way to making the management of information access a routine function across the public service. Disclosure of previous involvement in the issues at hand however might remind decision makers to the need for objective decisions that will withstand scrutiny, and alert applicants to look for signs of self-interest in any decision to refuse access.

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