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Monday, May 20, 2013

Calling "damage to international relations", with mixed results

Agencies other than Foreign Affairs and Trade get to try their hand from time to time at Section 33 of the Freedom of Information Act and whether disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. With contrasting results as seen in two recent review decisions by the Office of Australian Information Commissioner. The Australian Broadcasting Corporation, in the unusual position of being against disclosure, unsuccessfully argued that damage would result from release of information about a Solomon Islands media assistance project it manages for AusAID. The Bureau of Meteorology on the other hand provided enough evidence to convince the Acting Freedom of Information Commissioner to affirm its decision to refuse access to documents concerning a peer review undertaken of a NZ government research agency report on temperature changes.

In Wake and Australian Broadcasting Corporation [2013] AICmr 45 the applicant sought access to documents concerning the Solomon Islands Media Assistance Scheme including the program’s overall effectiveness, the number of consultants used, the number of people trained and any evaluation of its effectiveness. The Solomon Islands Government is a key stakeholder in SOLMAS and the ABC submitted that public disclosure of the documents could adversely affect its relations with the Solomon Islands Broadcasting Corporation and the Ministry of Communication and Aviation. Acting Commissioner Pirani was unimpressed:
  1. I have read the twelve documents subject to this IC review. I do not consider that disclosure of these documents would, or could reasonably be expected to, damage the relationship between Australian and the Solomon Islands. The documents report on the activities and effectiveness of SOLMAS in strengthening the media sector in the Solomon Islands and cover the period from October 2008 until December 2010. The documents contain candid assessments of the strengths and weaknesses of individuals and media organisations in the Solomon Islands. Given the nature of the material, the aims of SOLMAS, and the collaborative nature of RAMSI, I do not consider that release of these documents would, or could, reasonably be expected to damage Australia’s relationship with the Solomon Islands Government.
The Acting Commissioner noted [21] some of the documents contain comments critical of identified individuals. "To the extent that these documents contain personal information which would be unreasonable to disclose and the release of which would be contrary to the public interest, I consider it is appropriate for this material to be edited before the documents are released to Ms Wake."

In AA' and Bureau of Meteorology [2013] AICmr 46 the documents in question were about a review conducted by the Bureau of the ‘Seven-station’ temperature series report prepared by the New Zealand National Institute of Water and Atmospheric Research Ltd (NIWA), a NZ government research and consultancy agency. In response to legal action initiated in New Zealand with respect to the accuracy of the temperature data series, NIWA asked the Bureau to undertake a review of the methodology and documentation of its report. 

Acting Commissioner Pirani accepted there are scientific conventions of confidentiality and anonymity associated with peer review, that the Bureau’s review was a peer review, as understood in the scientific community, that assurances of confidentiality had been given, and that disclosure would be contrary to s 33:

  1. I consider that damage to the relationship between the Bureau and NIWA, and between the Bureau and other international research organisations, is damage to the international relations of the Commonwealth. This view is consistent with Part 5.30 of the Guidelines.
  2. I have considered the Bureau’s and NIWA’s submissions and have decided that if any information provided to the Bureau by NIWA, any information about the peer review, or any information revealing the identity of staff working on the peer review is disclosed, it could reasonably be expected to damage the relationship not only between the Bureau and NIWA, but also between the Bureau and other international research organisations. The damage that could reasonably be expected to result from disclosure is a loss of trust in the Bureau as the holder of confidential material which would have the effect of reducing the willingness of NIWA and other international organisations to consult with the Bureau.

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