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Wednesday, September 11, 2013

FOI -15 months from start to finish

Two points from this recent decision Combined Pensioners and Superannuants Association of NSW Inc v Deputy Prime Minister and Treasurer [2013] AICmr 70 (3 September 2013) by Freedom of Information Commissioner Dr Popple:
 One, patience is a virtue, and for determined applicants prepared to do the time, 12 months in the review queue at the Office of Australian Information Commissioner can be worth the wait they shouldn't have to endure.
Two, and the time has surely come for the public service to discard the old chestnut that disclosure of analysis and options for consideration after decisons have been made will inhibit public servants doing their job in future.

At issue was a brief, apparently prepared by the Treasury, titled ‘Government run aged care home credit scheme’. The brief provides an overview of the scheme proposed in a Productivity Commission report, including information about its scope and delivery as well as a discussion of possible risks and benefits. It was prepared for the purpose of briefing a small group of Ministers about the proposed scheme, presumably during the finalisation of the Government’s response to the report. The subsequent published Government response to the report rejected the PC recommendation for such a scheme but did not provide reasons.

The Office of the Treasurer claimed that disclosure of the document would be contrary to the public interest because it would be ‘likely to inhibit the full canvassing of issues and options in the development of Cabinet material’. The Office also said that ‘there is a strong public interest in maintaining a confidential relationship between Ministers and agencies so as to allow agencies and Ministers the scope to explore and develop appropriate policy responses in relation to significant and sensitive policy issues’.

Dr Popple [17-20] 
  • agreed on the importance of some confidential thinking space - when policy is being developed, 
  • didn't regard the brief as in any way sensitive, 
  • described it as is an objective, professional analysis of the proposal that discusses options, but does not favour one option over another, 
  • listed a number of public interest factors that favour disclosure including promote the objects of the FOI act; inform the community of the Government’s operations; reveal further reasons for a government decision and background or contextual information that informed that decision; and enhance the scrutiny of government decision making. And did not identify any public interest factors against disclosure.

So the brief is to be released 15 months after the FOI application was lodged with the Treasurer in June 2012. 

Time and taxpayer money spent arguing a legitimate concern, or gaming the system?  You be the judge.

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