Maybe there are many instances of agencies around the country that as a matter of routine report to their minister about freedom of information applications received and on hand, and give the minister's office a 'heads up' or more, an opportunity to 'comment', on decisions regarding access to particular documents.
On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.
While ministerial
responsibility under the Westminster system means it is understandable that an agency would want to ensure
that its minister is informed on agency operations, the implications of the legislated FOI differentiation between an agency and the minister are also clear:
The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.
Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.)
But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:
1. Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised."
4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment."
5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."
Some of those 'comments' if they are recorded might make interesting reading.
Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)
As to other agencies,who knows?
In WA in any event agencies can see the Information Commissioner frowns on this.
The text of the WA annual report item follows
Agencies providing information to Ministers on FOI applications (page 17)
"The OIC often receives enquiries from agencies asking whether it is appropriate to inform their Minister about FOI applications received by the agency. In light of the concept of Ministerial responsibility for portfolio agencies under the Westminster system of government, it is understandable that an agency would want to ensure that its Minister is adequately briefed on matters relevant to their portfolio. This may include being briefed on access applications under the FOI Act, particularly where the release of documents may lead to public debate through the media or Parliament.
Under the FOI Act, Ministers are separate agencies to the Departments and other bodies which they oversee. Section 100 provides that FOI decisions are to be made by the principal officer of the agency or an officer directed by that principal officer. In the case of a Department of State, the principal officer is the Director General. In other types of agencies, it is usually the CEO or equivalent.
In all cases it is the principal officer of an agency, not the Minister, who is responsible for making decisions of the agency under the FOI Act. Decisions must be made with regard to the provisions of the FOI Act as passed by the Parliament, not by reference to inappropriate considerations of political expediency or convenience. While there is no prohibition in the FOI Act against informing a Minister of specific FOI applications or decisions, doing this before a decision is made could lead to the perception, whether justified or not, that the Minister is being given an opportunity to influence the decision-making process in a way which allows inappropriate considerations to be taken into account. Further, informing the Minister of the identity of any particular access applicant, while not expressly prohibited by the FOI Act, may be contrary to an applicant’s expectation of privacy and confidentiality. It may also result in a greater reluctance to use the FOI process in the future, which would run contrary to achieving the objects of the FOI Act.
Agencies should take the above considerations into account in deciding whether, when and how they brief Ministers on FOI applications received by the agency. To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities."
On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.
"To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities." (Full text below.)This is along the lines of, but goes further than a protocol issued last year by the Queensland Information Commissioner. The protocol accepts that a reporting system may be established but the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested" will require the minister or Department to prepare for public debate." According to the protocol, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website. (Anyone up north checked that out?)
The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.
Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.)
But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:
1. Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised."
4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment."
5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."
Some of those 'comments' if they are recorded might make interesting reading.
Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)
As to other agencies,who knows?
In WA in any event agencies can see the Information Commissioner frowns on this.
The text of the WA annual report item follows
Agencies providing information to Ministers on FOI applications (page 17)
"The OIC often receives enquiries from agencies asking whether it is appropriate to inform their Minister about FOI applications received by the agency. In light of the concept of Ministerial responsibility for portfolio agencies under the Westminster system of government, it is understandable that an agency would want to ensure that its Minister is adequately briefed on matters relevant to their portfolio. This may include being briefed on access applications under the FOI Act, particularly where the release of documents may lead to public debate through the media or Parliament.
Under the FOI Act, Ministers are separate agencies to the Departments and other bodies which they oversee. Section 100 provides that FOI decisions are to be made by the principal officer of the agency or an officer directed by that principal officer. In the case of a Department of State, the principal officer is the Director General. In other types of agencies, it is usually the CEO or equivalent.
In all cases it is the principal officer of an agency, not the Minister, who is responsible for making decisions of the agency under the FOI Act. Decisions must be made with regard to the provisions of the FOI Act as passed by the Parliament, not by reference to inappropriate considerations of political expediency or convenience. While there is no prohibition in the FOI Act against informing a Minister of specific FOI applications or decisions, doing this before a decision is made could lead to the perception, whether justified or not, that the Minister is being given an opportunity to influence the decision-making process in a way which allows inappropriate considerations to be taken into account. Further, informing the Minister of the identity of any particular access applicant, while not expressly prohibited by the FOI Act, may be contrary to an applicant’s expectation of privacy and confidentiality. It may also result in a greater reluctance to use the FOI process in the future, which would run contrary to achieving the objects of the FOI Act.
Agencies should take the above considerations into account in deciding whether, when and how they brief Ministers on FOI applications received by the agency. To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities."
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