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Tuesday, August 27, 2013

MP avoids entitlement spotlight until after the election

On the subject of trust, as we were..

The name of the current member of parliament 'AK' who features in this Freedom of Information decision by Australian Information Commissioner Professor McMillan - 'AK' v Department of Finance and Deregulation [2013] AICmr 64 - isn't mentioned but plenty will venture a guess. 

The member has been battling since October 2012 to prevent disclosure of information by Finance and Deregulation about use of entitlements, and lost out in this latest round.

However as AK has a further right of review to the AAT, information that might identify AK or reveal the substance of the documents in contention is not included in the decision. The Applicant, Hedley Thomas of The Australian who obviously knows who AK is, can't get the documents the commissioner ruled should be disclosed until AK's review rights are exhausted or extinguished by lapse of time, conveniently sometime after the election on 7 September.

The strong public interest case for disclosure as outlined in Professor McMillan's decision would apply equally to disclosure of information about use of entitlements and support services provided to members of parliament by the parliamentary departments.

Parliamentarians voted three months ago to exempt these agencies entirely from the FOI act. If the incoming government or parliamentary leaders can be inspired or shamed into restitution along the lines of Dr Hawke's recommendation for partial FOI coverage, scope for argument about what is covered and for delay of the kind seen in 'AK' must be avoided through precise legislation.

Thomas sought access to documents relating to the use of Parliamentary entitlements by AK in 2006 and 2007.  When consulted as a third party, AK argued against disclosure of some documents based on the personal information conditional exemption. Four documents remained in contention, described in the commissioner's decision as a letter written to the Department by a member of AK’s staff in 2007; records of two telephone conversations in 2007 between a member of AK’s staff and a Departmental officer, and another Departmental record arising from the earlier communication. 
"The content of the documents concerned AK’s use of Parliamentary entitlements, and in particular whether AK complied with relevant government guidelines, and steps taken by AK to ensure compliance."[12]. "The central facts disclosed in the documents are that there may have been an incident of non-compliance with government guidelines on Parliamentary entitlements; that AK’s office identified this non-compliance; and that AK took steps to remedy the possible non-compliance." [21].
 Professor McMillan concluded the information was personal information, but disclosure was not unreasonable, and on balance in the public interest.

Not unreasonable:
22. I do not think that disclosure of that personal information about AK would be unreasonable. Members of Parliament would be aware that their enjoyment of Parliamentary entitlements must comply with relevant rules or guidelines, and that this will be independently scrutinised. Members would, I am satisfied, have an expectation that this scrutiny may extend to public scrutiny, either in response to a request made under the FOI Act or through the proactive release of information by a government agency. In that event, it could reasonably be expected that information would be released as to whether the enjoyment of Parliamentary entitlements complied with government guidelines, including whether the enjoyment of those entitlements by a family member complied with the guidelines. 
23. I am further satisfied that disclosure of this information in response to an FOI Act request would serve a public purpose. Disclosure supports the effective oversight of public expenditure, and may shed light on the workings of government in administering entitlements and repayments.
As to public interest considerations, relevant if he was wrong on the unreasonable point, Professor McMillan outlines those that favour disclosure and gives little or no weight to those submitted on behalf of AK against disclosure [26 -37], concluding:
38. As earlier noted, Parliamentary entitlements are publicly funded, administered and scrutinised. There are strong public interest considerations that support transparency concerning these matters, and in particular, transparency concerning whether there has been compliance with government guidelines. Members of Parliament would reasonably expect public scrutiny of their use of Parliamentary entitlements occurring at any time during their Parliamentary career.
 Hear, hear.

Now who was that talking about trust?

1 comment:

  1. Anonymous5:30 pm

    I am having a similar problem getting a one page document out of an agency for comparison between budget and actual expenditure for Ministerial office. Was given later years but one year was not forthcoming as apparently the information is stored in an old version of Finance One. It is laughable. I am sure the Audit Office would find no difficulty in similar circumstance.