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Wednesday, March 27, 2013

NSW conclusive certificate limits Information Commissioner's powers

The front page report by Sean Nicholls in the Sydney Morning Herald and followed up by the Opposition on the airwaves this morning, had me thinking the bad old days of conclusive certificates, those virtually insurmountable road blocks to access, had returned when I wasn't watching. Not quite, just  a reminder of a power to limit the Information Commissioner's conduct of a review application that is not unique to access applications under the Government Information (Public Access) Act.

Nicholls reported on a decision by the Department of Premier and Cabinet to apply "extraordinary secrecy provisions" to suppress a report by Deloitte to assess the potential economic benefits of the Crown proposal for a six star hotel at Barangaroo in Sydney, claiming it is a cabinet document. 

The senior review officer at the IPC Natasha Case was possibly misquoted saying "the Information Commissioner must accept it as ''conclusive evidence that the documents … are cabinet information for the purposes of the GIPA Act and therefore must not be disclosed.''

There are no conclusive certificate provisions in the Government Information (Public Access) Act that prevent disclosure to an applicant.

Here, the commissioner is in receipt of an application for review of a decision by the department to refuse access to the report. In undertaking the review it would obviously be helpful to sight the report and ask questions about the circumstances of its creation in order to test whether it qualifies as a cabinet document as defined in Schedule 1 of the GIPA act.

The effect of the certificate is that the commissioner cannot access the report or other relevant information in carrying out the review. The Government Information (Information Commissioner) Act  (s 30) limits the commissioner's powers in these circumstances, preventing inspection of any record or requiring a person to provide information, answer questions or provide the commissioner with a copy of any document specified. The report is conclusively a cabinet document for the purpose of this limitation.
The commissioner will have to soldier on to reach a decision on whether the report is or isn't a cabinet document without that assistance, relying entirely on whatever information the department has provided to explain the reasons for its decision.

Technically the commissioner could decide that the report is not a cabinet document. You wouldn't want to bet on it. Even then the commissioner's powers don't extend to requiring the report be released, merely that the department may choose to make a new decision in the light of her findings.

The limitation on access to a document the subject of such a certificate is not unique to the GIPA act and the commissioner. The Administrative Decisions Tribunal Act (s 124(4), and the Ombudsman Act (s22) contain similar provisions.

So 'extraordinary' maybe, but not entirely new or novel. 

I've no idea how many such certificates are issued. No mention that I can see in the DPC Annual Report.

Any connection between this development and the Information Commissioner's decision announced on Monday to stand down presumably is entirely coincidental.


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