EFIC's blanket FOI exemptions under challenge

The Productivity Commission in an inquiry in 2012 into the Export Finance and Insurance Commission (EFIC) concluded it should not continue to enjoy a blanket exemption from the Freedom of Information Act in relation to insurance and financial services and national interest transactions. The government rejected this recommendation in January 2013. A bill before parliament would enact legislation to give effect to recommendations that the government accepted, but makes no mention of this one. 

Jubilee Australia with support from other organisations, academics (and your humble blogger) is urging the committee to look again at this issue. Luke Fletcher in New Matilda provides a case study of why more disclosure about how EFIC goes about its job is important.

Quite apart from the specific arguments relevant to this case, blanket exemptions or exclusions from the FOI act for some government agencies entirely or in respect of certain functions, with no requirement to find harm from disclosure or to consider public interest factors, leave a significant hole in the principles of open, transparent and accountable government that underpin the FOI act.

Several submissions (mine, the Media Entertainment and Arts Alliance, there are others) to the Hawke review point this out but whether Dr Hawke showed interest we don't yet know.

Schedule 2 of the FOI act lists the relevant agencies and functions that entirely or in part are exempt. It  has never be re-examined as recommended by the Australian Law Reform Commission in it's 1995 report "Open Government." That report said most of the agencies listed in Schedule 2 should be required to demonstrate, within 12 months, that they warrant an exclusion, and otherwise be removed (Recommendations 74 & 75).

EFIC could not satisfy the Productivity Commission on this score.

Blanket exemptions can rarely be justified.In best practice information access laws, there are none.

Jubilee Australia will be giving evidence to the Senate committee examining the bill on Friday morning. In addition to pointing to the Productivity Commission Report, and the ALRC report, they might remind senators of the Open Government Declaration, the lofty objects of the FOI act, and the Prime Minister's clarion call of 2010: "let the sunshine in."

EFIC is the government provider of export credits, insurance, reinsurance and other financial services that support Australian exports and overseas investments. EFIC was established in its current form under the Export Finance and Insurance Corporation Act as an independent statutory corporation wholly owned by the government. The Schedule 2 exemption from the Freedom of Information Act is in relation to documents concerning anything done under Part 4 or 5 of the EFIC Act.

The Productivity Commission Report Australia's Export Credit Arrangements  (among other recommendations) recommended (9.7) the removal of the exemption, noting that sensitive government and commercial information should continue to be protected by other general exemption provisions.

The  Commission commented that the FoI Act exemption for EFIC reduced the ability of the public and the Australian Parliament to examine finance facilities for their environmental, social and human rights impacts, and that Dr Cephas Lumina, the UN Independent Expert on foreign debt and human rights, along with Greenpeace and Jubilee Australia had expressed concern about EFIC’s disclosure policies:

... the Independent Expert fully supports the view that the absence of transparency requirements raises serious questions about the agency’s accountability to taxpayers and to citizens of the developing countries where EFIC-supported projects are being implemented are matters of public concern. Consequently, he is of the view that EFIC should be required to publicly disclose information concerning its activities, including project assessment, decision-making and implementation and to undertake assessments of the human rights impact of its financing decisions (in addition to its environmental and social impact assessments). In particular, the Government of Australia should ensure that the activities of EFIC are fully compliant w ith Australia’s international human rights obligations.

 The Australian Government Response in January 2013 to this recommendation was "Noted." Meaning, "not on your life."

 As a Foreign Affairs official told Senate Estimates in February "that was not really a priority...we looked at why the exemption was there in the first place, and principally it is about the transactions that EFIC agrees to or becomes involved in—and the government as well, on that national interest account. So there are a number of issues of confidentiality around the commercial transactions that are involved. For that reason the exemption exists and ultimately the government agreed that it was appropriate for it to remain."

The bill to amend the EFIC act is currently with the Senate Foreign Relations Defence and Trade Legislation Committee.