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Monday, July 22, 2013

Queensland facing a "no reasons" for RTI refusal future?

Just a couple of weeks before Premier Newman announced he was taking further steps to advance the government's claim to be the most open and transparent government in the nation, the Queensland Government (pdf) accepted in principle this recommendation from the Callinan Review of the Crime and Misconduct Commission:
that an agency not be required for nine months (unless ordered by a court to do so) to provide reasons for any decision to refuse access to a document sought under the Right to Information Act. 
There was just a hint in the statement of a pause for serious consideration of the ramifications:
The proposed amendment raises a number of important and complex matters requiring further and ongoing discussion with departments and agencies including the Office of the Information Commissioner. The Implementation Panel will provide advice about how the intention of the recommendation can best be achieved.
The recommendation accepted in principle extends to the Ombudsman as well. 

It seems a ridiculously wide and broad remedy to what Callinan saw as a fundamental problem to be overcome at all costs, the risk of disclosure of anything that might reveal information about the existence, content or subject of a current misconduct complaint or investigation.

However abolishing reasons for decision for all RTI decisions takes simplification of the system referred to by the Premier last week, way too far.
As I said when the Callinan report was released:
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."
Reasons are particularly important when refusal of access to government information is concerned.
The Chair of the Parliamentary Crime and Misconduct Committee in a letter  (pdf) to the Attorney General weighed in on this and other matters just prior to the government response, stating the Committee did not support the recommendation:
Firstly, the Panel put forward no empirical basis for selecting the nine month timeframe. Secondly, the recommendation will result in a disproportionate negative effect upon applicants who apply for information under the
Right to Information Act 2009 or make a complaint under the Ombudsman Act 2009 regardless of whether their application or complaint relates to a complaint before the CMC.There needs to be a balance between the public interest in protecting the privacy of those persons subject to a complaint to the CMC and the public interest of complainants to the Ombudsman or applicants under the Right to Information Act receiving reasons for the decisions of those agencies
This recommendation may impact upon the rights of those individuals to appeal against such decisions, or may negatively impact upon other matters relating to that individual in relation to the information they seek. This recommendation will also likely increase the workload of the Office of the Information Commissioner and the Ombudsman’s Office in dealing with complaints about refusal to provide reasons for their decisions. The Committee respectfully suggests that the Legal Affairs and Community Safety Committee may be able to provide more information on this issue given its oversight responsibilities for the Ombudsman and the Information Commissioner.

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