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Friday, July 26, 2013

Argy bargy over "Minister's documents" subject to FOI

Darting and weaving about what documents held by a minister are subject to freedom of information legislation is not new and has been an issue in recent times in Canberra and Melbourne. 

And in Perth this week as reported by Daniel Emerson in The West Australian
Transport Minister Troy Buswell has kept hidden a second tranche of Government correspondence on its rail projects after arguing they were promises of the Cabinet and the Liberal Party at the same time....The West Australian sought access to all correspondence to and from Mr Buswell relating to MAX light rail, the airport line and Federal funding between January 26 and the election on March 9. A similar request to Premier Colin Barnett's department was denied this month after it argued the documents were created for the Liberal Party - not the Government. In his response this week, Mr Buswell confirmed for the first time that reams of documents matching the description did exist. But he used the same justification as the Department of Premier and Cabinet to withhold 94 emails and attachments between his Treasury and Transport ministerial offices, Mr Barnett's office and the Liberal Party of WA. "Whilst the documents may deal with matters within the functions of another agency, they do not concern the business or operations of that agency as they relate to election commitments rather than Government decisions," Mr Buswell wrote.
Without seeing the determination, this would seem to revolve around definitions of document subject to the WA Freedom of Information Act. 

Whereas in the case of an agency. possession or control of the document is the defining issue, where the agency is a Minister
 (2).. "a reference to a document of an agency is a reference to a document that (a) is in the possession or under the control of the Minister in the Minister’s official capacity; and (b) relates to the affairs of another agency (not being another Minister),and includes a document to which the Minister is entitled to access and a document in the possession or under the control of a member of the staff of the Minister as such a member, but does not include a document of an agency for which the Minister is responsible. 
It's generally in line with most FOI acts around the country although (b) is a bit strange and unusual. 

But the basis for application of this and most other FOI acts only to a minster's document if it relates to the affairs of an(y) agency leaves too many gaps. 

As observed previously argument and uncertainty on this important question would be less if something along the lines of the NSW GIPA act formula was adopted elsewhere (emphasis added):

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.

Even this could be further improved to deliver real accountability. 

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