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Thursday, March 28, 2013

Further puzzling over NSW conclusive certificates

More today in the Sydney Morning Herald about those NSW conclusive certificates and what they stand for.  

As Sean Nicholls reports the Premier now says the Deloitte report will be released eventually. Nicholls continues:
The power to block the public release of documents using a conclusive certificate had been used only once in the 20 years before the O'Farrell government came to power, but has been applied eight times in the two years since. The power was included in an overhaul of NSW freedom of information legislation by the former Labor government in 2009. The new Government Information (Public Access) Act, which replaced the Freedom of Information Act, removed the power for ministers to issue certificates to block release of documents. But it gave agencies the right to issue certificates over what they deem to be cabinet documents, preventing their release. No certificates were issued under the former Labor government after the GIPA Act came into force in July 2010. But eight have been issued by departments since the O'Farrell government came to power in March 2011.
The following is a bit legal and finicky I'm afraid. But bear with me....

As I commented yesterday there is no provision in the GIPA act for a certificate that blocks access to information sought by an applicant. The issue under that act is whether in a particular instance there is an overriding public interest against disclosure of information. It is to be conclusively presumed that there is an overriding public interest against disclosure of cabinet information, defined by reference to various facts set out in Schedule 1(2).

The relevant provision relied on in the media reports about conclusive certificates is Section 30 of the Government Information (Information Commissioner) Act which appears in Part 3 Division 4, headed Powers of Commissioner.

S 30 includes this reference to a certificate:
(2) "A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section."
The certificate can only be issued by specified officers in the premier's department, not by others.

And as s 30 (2) states, a certificate issued by one of those officers is conclusive "for the purposes of this section."

The purpose of the section is to impose a limit on the commissioner's powers as set out in the GIIC act. Specifically the powers do not enable the commissioner to require any person to do certain things if this would involve disclosing cabinet information. The commissioner for example can't demand to see a document to satisfy herself that it is a cabinet document. Section 30(1) states:
This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
 if compliance with the requirement would disclose information that is Cabinet information, or
(b)  to inspect any such record or thing.
But the certificate would not establish conclusively that the document is a cabinet document for the purposes of refusal of access, or for the purposes of a decision by the commissioner in reviewing such a decision. Both decisions are decisions under the GIPA act.

A  s 30 (2) certificate establishes conclusively that documents are cabinet information for the purpose of limiting the exercise of power by the Information Commission to inquire about or sight disputed information.

Section 30(1) would seem to allow any government agency to refuse to provide information to the commissioner even in the absence of  a certificate from Premier's, simply by asserting that compliance would require a person to disclose cabinet information.  In the event of such a claim, it would be open to the commissioner to argue the toss with the agency about whether doing an act or thing would involve disclosure of cabinet information. The commissioner would no doubt find it difficult to look behind such a claim.  But it would be just a claim in the absence of conclusive evidence. Conclusive evidence that the information in question is cabinet information exists if a certificate has been issued by Premier's under s 30.

Although it's a close run thing, there is no bad old day powers in the NSW legislation to block public access through an official's certificate.

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