FOI applicant marooned by comings and goings in Treasurer's Office

Smoke may still be coming out the ears of those at Phillip Morris Ltd as they reflect on recent experience of close to three years spent pursuing Freedom of Information access to documents from the Treasurer. 

More than two of those years involved waiting in the queue for review by the Information Commissioner of a determination by the office of then treasurer Swan in June 2011 to refuse access to documents claimed to be exempt. By the time the decision came up for IC consideration in 2013 the treasurer was a different treasurer and the current incumbent said he didn't have the documents or access to them. Freedom of Information Commissioner Popple decided in December that the FOI act no longer applied to the documents. 

The Commissioner noted that the Treasury department now acknowledged that it held the documents. 

PML is unlikely to be be overjoyed at the prospect of making a fresh FOI request to start the process all over again.

I don't know how many other FOI applicants seeking documents from a minister or in the line for IC review of a determination by a minister found themselves marooned as a result of a ministerial reshuffle or the wholesale replacement of the ministry following the election in September. But with three administrations in 2013, ministerial comings and goings reached record levels.

In the PML case the FOI act applied to the documents (not described in the decision) when PML made the FOI application in March 2011.The Treasurer's office (Wayne Swan at the time) claimed eight of 13 relevant documents held were exempt. In August 2011 PML sought Information Commissioner review of the knock-back. 

Nothing much seems to have happened by the time almost two years later in July 2013 when a new treasurer Chris Bowen was appointed. Bowen was replaced by Joe Hockey following the September 2013 election. 

In October 2013 in response to a query from the OAIC the Treasurer's Office advised that the ‘documents relating to the review are not in the possession of the Treasurer and cannot be accessed by the Treasurer.’ 

On this basis in December Commissioner Popple decided [14-16]  that the IC review cannot continue to be undertaken as the documents were not in the possession of the current treasurer and as a result were not at this time ‘official documents of a Minister.’ The FOI Act no longer applied.

18. Furthermore, I cannot make a decision on this IC review that PML be given access to the documents it has requested. Section 55K of the FOI Act provides that, in making a decision on an IC review, I may ‘perform the functions, and exercise the powers, of the person who made the IC reviewable decision’ (s 55K(2)) and my decision ‘has the same effect as a decision of the agency or Minister who made the IC reviewable decision’ (s 55K(3)). In this case, a previous Treasurer was the person who made the IC reviewable decision, but (because of s 20 of the Acts Interpretation Act) the current Treasurer is that person for the purposes of s 55K. This means that I can only make a decision on this IC review that could be made by the current Treasurer. The requested documents are not in his possession, so I cannot decide that he give PML access to those documents. (This would be the case even if I had possession of the documents myself.) 

Treasury may have had copies of the documents all along and PML might have had a decision on the merits of any exemption claim by now if the original application was made to the agency not the minister, but that didn't happen. A decision by the IC before July 2013 would have determined the merits of the refusal determination but that didn't happen either.

The decision makes no reference to what did happen to the documents when the baton changed hands first in July 2013 and then again in September. Or to the only published guidance on handling documents when a minister leaves office, published by the Department of Finance in the Ministerial Handbook on Entitlements:

"It is normal practice that a Minister will, on ceasing office:

• return departmental records (both electronic and hardcopy) to his or her portfolio department;
• destroy Cabinet papers issued to him or her, keeping a record of documents destroyed (including copy numbers) and advising the Cabinet Secretariat (as outlined in the Cabinet Handbook). The Cabinet Secretariat will provide detailed guidance on disposal procedures when the Minister’s departure is imminent; and
• deposit other official records, including those that originated in the Minister’s office, with the National Archives of Australia. The National Archives seeks to acquire the personal papers of Prime Ministers, Ministers and Parliamentary Secretaries, to ensure the retention of valuable official records and related private material."

(As an aside 'normal practice' seems a loose standard for ministerial conduct in the handling of records-apparently unsupported by legislation or oversight.)

PML and its interests mightn't attract widespread public support but they like anyone else are entitled to a fair go.Two years waiting for IC review isn't just or fair. 

 And if normal practice was followed and the unfinished FOI file and relevant documents were passed back to the Treasury in July as seems likely you would hope someone there might have let the applicant know and discuss where to from there but that level of civility, service and willingness to help appears to have been lacking in this case as well.