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Monday, April 29, 2013

Callinan CMC report uses blunderbuss on RTI act when spit and polish might do

The Executive Summary of the Callinan Report on the review of the Queensland Crime and Misconduct  Commission, when released a few weeks ago, included what seemed to be an extraordinary, broad recommendation that the Right to Information Act be amended to restrict agencies and the Information Commissioner from being required to give reasons for refusal to release documents for a period of nine months after an application was received.

It is far from the most important issue raised in the report, which takes the stick to what it calls "the integrity industry." I'll leave those to others. 

But the lack of clarity in the RTI act recommendation, and the absence of information about other options considered, and the lack of an explanation for it in the Summary meant the publication of the report itself was awaited with interest.

The (redacted) full report has now appeared in Parliament tabled papers 2448-2452. (Hats off to the Queensland Parliament, I think the only Australian jurisdiction where tabled papers are published promptly on-line.) It is also here (Redacted) Full report (in a very large pdf).

Rather than a full, deep analysis, the review's examination of the RTI issue is limited to one page (113) in 248.

The given as far as Callinan is concerned is that the need for confidentiality regarding any fact of, or identity of a person who is subject of a complaint or of an investigation, or interest in a matter before the CMC is absolute.

The report proceeds from there seemingly, conflating two issues. One, how information of this kind might be safeguarded by an exemption. Two, the dangers posed to confidentiality if a decision to refuse access requires reasons to be given.

The report summarises the RTI problem thus:
At present the relevant agency, and on review the information Commissioner must give reasons for its decision whether to give access to documents which may in effect disclose that a matter is under investigation by the CMC and which would probably enable identification of the subject matter and the person who is the subject of investigation.
No examples are given to support the contention that the act isn't working in practice and there is no reference to the matter being raised in submissions.

As to what to do about the problem, the report says it would be possible to add to the categories of exempt information in the RTI act, information that would tend to identify the existence, nature or subject of a complaint to or investigation by the CMC. But
"we think it would be still possible for resourceful organisations to ascertain by process of elimination that a document has not been disclosed because it is related to a CMC  complaint or investigation.
From there it makes the jump to this radical solution (no emphasis added, the report underlines "any"):
"In order to prevent this possibility most effectively it would be better that agencies and the commissioner simply not be required to give any reasons in any case for a period of nine months of the application unless the Supreme Court for compelling reasons of public interest orders otherwise. Unless the discretion of the Information Commissioner not to give reasons is a general one and not in respect of the CMC alone the objective of confidentiality would be defeated..."
No new exemption is proposed. Simply(!) that the requirement for reasons for refusal of access by an agency or the Information Commissioner in "any case" be dispensed with for nine months.

There is no mention in this discussion of the existing section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information."  Or reference to the possibility, that if this isn't capable of doing the job, of tweaking, with modifications drawn from other jurisdictions which apparently aren't struggling unsuccessfully to protect information of the kind Callinan wants protected.

The report recommends the same "give no reasons" provision should be included in the Ombudsman Act so that the Ombudsman would not have to explain a decision to refuse to intervene in a matter because it was the subject of a CMC complaint or investigation.

This part of the report concludes 

Without these (protections), as appears from this and other chapters of this Report, the requirement of secrecy is a hollow protection easily evaded.

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings.

The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary.

Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates
giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making.
Recommendation 10 in the review report reads:

The Right to Information Act ought to be amended to restrict Departments and agencies (including the Information Commissioner) from being required to give reasons for refusal to produce documents, the restriction to remain in place for 9 months. Reasons should only be obligatory if and when the complaint results in criminal proceedings or proceedings in QCAT; or, the subject or subjects of a complaint, authorise in writing the publication or disclosure of the complaint. The exception to this would be if the Supreme Court earlier determines there to be a compelling public interest in the disclosure of the reasons. We have selected 9 months on the basis that by then the CMC should have completed any investigation it undertakes. The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not  giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise that this is a far-reaching provision but cannot see any other solution that would prevent leakage of information about the existence, content or subject of a current complaint or investigation. The severity of the provision is tempered by two important qualifications that we recommend apply, namely that the embargo is limited to a 9 month period, and that it be subject to contrary order by the Supreme Court in situations of compelling public interest. Similar amendments will be required to the Ombudsman Act to restrain the Ombudsman from giving reasons for declining to intervene in a matter.

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