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Thursday, March 14, 2013

FOI in South Australia needs a makeover

And it's not just the act that needs an update after 21 years. Recent reports by the Ombudsman suggest agency culture is a  bigger worry.
Ombudsman Richard Bingham's Growth Investigation Areas Report and the failings identified in the engagement of consultants without rigorous and accountable procurement processes to ensure probity and identify and deal with conflicts of interest, attracted plenty of attention in South Australia last week.

Less so the Freedom of Information aspects.

The GIA saga started in 2009 and involved a dogged FOI battle by The Greens MLC Mark Parnell to attempt to access key documents, with the planning agency running interference at every step of the way. Parnell took four knockbacks to the Ombudsman, one after another. Bingham ruled in his favour, that the documents were not exempt, each time. Planning took one case a further step to the District Court, which upheld Bingham's decision. The court did the same in another case, upholding Bingham's decision on review  in an application by Opposition MLC Vickie Chapman for relevant planning documents. 

The information access battles are recounted in FOI Background to the GIA Report.

Someone will surely ask what all this darting and weaving cost the SA taxpayer?  

The prevailing culture speaks for itself.

As to the GIA report produced by the consultants, it has not been publicly released. The Ombudsman (p 66) in an FOI review in 2010 found the report was exempt as a cabinet document. However the 30 Year Plan that it fed into was similarly a cabinet document that the government had released. Bingham intimated at the time that cabinet confidentiality would not be undermined if the GIA report was released, noting the objects and principles of administration of the FOI act. This time it's sharper: given his concerns about the consultants and Planning SA's failure to adequately address the conflict of interest,
 "I consider it would be in the public interest for the government to revisit its views and consider releasing the report."
Other recent reports by the Ombudsman show culture at Treasury and Finance is similarly tight. And the South Australian Tourism Authority was unable to produce persuasive evidence to justify refusal of access to contract information now five years old. It also didn't have a handle on the pro-disclosure public interests that favour release of this type of information in any event.

In the Treasury report the Ombudsman, following a complaint by Michael McKinnon of the Seven Network, found the agency had acted in a manner that was wrong and unreasonable in a number of respects.Treasury pleaded special circumstances but the record shows basic failings in administration 21 years after the act commenced.

The report also reveals that Treasury engaged in straw splitting and foot dragging when it came to preparedness to go the extra millimeter unless it had to (emphasis added):
53. In my notice of investigation to the department, I wrote:

  1. in his memorandum dated 1 June 2011, the Deputy Under Treasurer included a proposed response to address the complainant’s request for information. The [Deputy] Under Treasurer’s response included facts and figures about gaming machines in South Australia; however it appears that this information was not relayed to the complainant. Why was this information not relayed?
54. By way of response, the department advised that:
"It has not been departmental practice to provide additional information to applicants, outside that which the Department is required to provide under the FOI Act. The FOI application requested information about the expected growth in the number of poker machines and anticipated revenue arising from any such increases. The information provided by the Deputy Under Treasurer relates to the decrease in the number of gaming machines, and is publically available."
Causing the Ombudsman to observe that the department should be supporting a culture of openness and accountability in the spirit of the objects of the FOI Act. The approach taken "is unnecessarily restrictive in providing information to the public about the workings of government and contrary to the objects of the FOI Act." 

In another report last month the Ombudsman reversed a decision by the South Australian Tourism Authority which had withheld information on the fees and financial arrangements with BDA Marketing Planning under a contract tendered in 2008. The ombudsman concluded none of the information had any current commercial value, no adverse effect could reasonably be said to flow from the release of the amount of the successful 2008 tender, and a business such as BDA Marketing Planning would not forego the chance of obtaining work with the government merely due to the possibility of tender information being disclosed to the public. On the public interest:
40. The government often engages in commercial dealings with individuals and commercial entities, and it cannot be expected that all information concerning these dealings will be kept from the public. Indeed the Agreement includes, at clause 17, an acknowledgement that ‘[t]he SATC may disclose this Agreement to any person under the provisions of the Freedom of Information Act 1991. The government must always act in the public interest, whether it is engaging in commercial dealings with other entities, or putting out tenders for services. The government is accountable for its decisions and actions, and this may necessitate releasing information concerning other parties. If no information, or substantially no information, about a commercial enterprise or a tender process involving the government is released, the openness and accountability of the project or process will suffer. 

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