Search This Blog

Friday, March 01, 2013

PM's diary messy enough to preclude disclosure

Wilcox-SMH
Anne Davies in Fairfax papers "Push for Gillard to reveal meetings" reports on the decision by Australian Information Commissioner Professor John McMillan to uphold refusal of her two Freedom of Information applications for diary entries of prime ministers Rudd and Gillard for 'practical refusal reasons'. In one instance because dealing with the request would substantially and unreasonably divert the resources of the Department from its other operations; in the other, because it would substantially and unreasonably interfere with the Prime Minister's functions.

Each Davies' request was for entries for one month, excluding personal appointments. It turns out that the electronic diaries are a mixture of official, party and personal engagements. The amount of detail in each entry varies, some containing only a name, phone number, and no detail of the nature of the activity or the capacity in which a person was scheduled to meet the Prime Minister. As the commissioner said "It is apparent that neither diary was prepared for public release." The PM Gillard document contains around 500 entries. The guesstimate of time needed to sort through and reach a decision on disclosure,163 working hours or just over 4 weeks.

In another decision Professor McMillan decided against the Office of the Prime Minister, ruling that the processing of an FOI request by Paul Fletcher MP for diary entries for PM Gillard's meetings with crossbench MPs over a 12 month period would not substantially and unreasonably interfere with the Prime Minister's functions because it would likely take less than 8 hours:
I am not satisfied that a practical refusal reason exists in this case to deny Mr Fletcher's request. For the reasons given, I doubt that the task will be as time-consuming as the Department has submitted. Lest I be wrong, and it will take 8 hours and 20 minutes to peruse the diary, plus additional time to reach a decision, I am not satisfied that the Office of the Prime Minister has discharged the onus of establishing that this would constitute a substantial and unreasonable interference with the Prime Minister's functions.
Professor McMillan suggests in Davies [45] that while not required to keep a diary of appointments or publish details, "ministers (or the Government) take a more active stance by proactively publishing a greater level of detail than at present about ministerial appointments and meetings."

Behind the game
Of course they should. Who gets to bend the ear of those at the top of the tree should be disclosed unless there are particular personal, (rare) business or security related reasons for non-disclosure. And published routinely, as Professor McMillan points out is the case with President Obama and Queensland Premier Newman. 

Then the even better precedent, "Who ministers are meeting" with details of ministerial meetings with outside organizations, hospitality, gifts and overseas travel for British Prime Minister David Cameron and the entire ministry. 

It all makes the published PM's schedule here look puny and inadequate by comparison.

The UK Government initiative to publish followed revelations during the News of the World scandal about access enjoyed but not publicised over the years by Rupert Murdoch.

(Public -or at least Fairfax readers-opinion: 65% in favour.)

Messy diaries take a long time to brush up
The Davies decision includes pages of consideration of issues concerning what can be taken into account in deciding what constitutes substantial and unreasonable diversion of resources: the resources that would be used in identifying, locating and collating documents; deciding whether to grant, refuse or defer access; consulting with other parties; redacting exempt material from documents; making copies of documents; and notifying an interim or final decision to an applicant. 

And of course if the record is as messy to start with as is the case with the PM's electronic diary, it's obviously going to take ages, and ages. Well something like 163 hours for each month of entries. More than enough to get into substantial diversion of resources territory. Watch out if the OAIC recommendation to the Hawke review, supported almost uniformly by agencies, comes to pass that 40 hours should be the capped limit on time spent responding to an FOI application.

Minister's document
Another issue [12-22] thrown up in the Fletcher decision is the application of the FOI act to a minister's documents. 'Official document of the Minister' is defined in s 4 as a document that is in a Minister's possession and 'that relates to the affairs of an agency or of a Department of State'.  Room for argy-bargy here as the Office of the Prime Minister demonstrated.

The office argued that entries relevant to the agreement with The Greens and independents on forming government were outside scope because the agreements were entered into by Ms Gillard as leader of the ALP, not as a minister. Professor McMillan rejected that, but it remains to be seen whether there is a further argument concerning some entries because they may not relate to the affairs of an agency or of a Department of State' despite Professor McMillan saying:
That phrase should be understood broadly as encompassing any matter that could be the subject of a Government action or decision, of legislation introduced into the Parliament by a Government minister, or that falls within the portfolio responsibility of a minister.
No mention in the decision of The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 where Judge Jenkins ruled that the diary of Victorian Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier, that many entries in a sample provided to the Tribunal related "to the affairs of an agency" even where they did not directly concern departmental business. The range of entries that Judge Jenkins found would qualify for release (subject to any exemption claim) include:

  • (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
  • (b) interaction with public servants, both with and without the Premier;
  • (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
  • (d) attendances involving foreign dignitaries, including politicians and diplomats;
  • (e) other entries which may record events, whether or not attended by the Chief of Staff; and
  • (f) entries in the nature of descriptions, observations or outcomes.
  •  
  •  
Last August this decision was reportedly off on appeal but I haven't heard of it since.

Argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted (emphasis added and attention Dr Hawke):
A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.




details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf
details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf
details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpufBritish Prime Minister David Cameron
 

No comments:

Post a comment