Immigration's 'nothing to hide call' in withholding Manus documents open to conjecture

I had a cameo in ABC Lateline's story last Thursday on the release of a 68-page document obtained  under freedom of information concerning the alleged rape of a Papua New Guinean woman by three Australian security guards in July last year. The reporter Jason Om has written the story here.

ABC: Brigid Andersen

The most important issue of course is the incident, the allegation and the decision of the  Australian government contractor to whisk the three alleged perpetrators out of PNG as quickly as possible.

The Freedom of Information issue is that Immigration and Border Protection took six months to process the application for reports of the incident and ended up redacting just about everything the documents contained. 

All the pages (at the end of Jason Om's report), most completely blank, are marked s 22 (irrelevant material), s 33 (would or could reasonably be expected to damage international relations) and 47F (unreasonable disclosure of personal information and disclosure on balance contrary to the public interest.)

I only saw the notice of decision briefly in ABC studios before the interview but reasons given for the damage to international relations claim looked skimpy and hardly unconvincing.  

The Department in a media release next day highlighted the primary reliance on the personal information exemption, which was not mentioned in the ABC reports. They would seem to have merit although its hard to imagine just about every page has been properly withheld on that basis. 

The media release explains the basis for the damage to international relations claim is the "ongoing investigation by the Papua New Guinean (PNG) authorities.....As with investigations conducted by Australian law enforcement agencies, it would be inappropriate for the Department to release information regarding an ongoing criminal investigation being conducted by another sovereign nation."

Whether their view about what's inappropriate equates to damage to relations and whether disclosure of just about everything in the 68 pages would cause further damage is open to conjecture . PNG wants the three returned for questioning.

The damage to international relations exemption as interpreted by the courts sets a low  threshold for the claim and as an absolute exemption comes with no public interest test.
It a bar that should be set higher.

In the meantime we will just have to take DIBP at their word:

"Media reporting and allegations that the Department has something to hide in relation to this matter are false.'

An external review of the FOI decision may or may not clear the air.

Immigration draws a long bow in lumping 85 FOI requests into one

The Global Mail reports that  the Department of Immigration and Citizenship is moving to reject more than 100 Freedom of information requests lodged through the Open Australia Foundation righttoknow website, as part of the Adopt-An-Incident campaign
concerning arrivals held in detention.

DIAC has written to each FOI applicant (see standard letter) stating it is treating 85 separate requests as a single request as they "relate to documents the subject matter of which is substantially the same." As a result the request, which DIAC estimates individually would take three hours, will take approximately 225 hours. That DIAC contends, would substantially and unreasonably divert resources from other functions and provide grounds to refuse access under s 24AA.

Each applicant has been issued a notice to this effect under s 24AB and invited to revise the request. DIAC will then issue a determination. At that stage rights of review arise.

There are a few problems with DIAC's claims.

DIAC's reliance on Section 24(2) seems wrong for two reasons.

The section states:

(2)  For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a)  the requests relate to the same document or documents; or
(b)  the requests relate to documents, the subject matter of which is substantially the same.

First, the requests have been made by different people. Section 24 is silent on whether the relevant "2 or more requests" must come from the same person. Arguably that's the case. This is supported by the Office of Australian Information Commissioner Guidelines which state that the section is relevant "where the same applicant makes two or more requests" in which case they may be treated as a single request - if they relate to documents the subject matter of which is substantially the same..
 
Agencies must have regard to these guidelines in performing a function or exercising a power under the FOI Act (s 93A(2). 

"Must have regard to" probably means nothing stronger than "can't be ignored" but as the DIAC notice makes no reference to the guidelines, they seem to have done just that.

"Must have regard to" doesn't mean have to followed and can't be contested. It would still be open to DIAC to argue their preferred interpretation in any proceedings before the OAIC or elsewhere.
 
DIAC's next problem in seeking to rely on s 24(2) is that the 85 requests do not relate to documents the subject matter of which is substantially the same. Each request (presumably) relates to a different incident report involving different people at a different time, often in a different place. The argument that all 85 requests relate to documents concerning subject matter substantially the same seems weak.

There is a separate point concerning substantial and unreasonable diversion of resources. DIAC only get into that territory if they treat the requests as a single request-overcoming the difficulties above.

If things get to that stage, DIAC is wrong in claiming that 40 hours is some sort of line in the sand. It isn't.

Two hundred and fifty five hours, if it holds up to scrutiny would be a different kettle of fish. That might be a substantial diversion of resources, but that alone isn't enough. The diversion must also be unreasonable. The nature of the request(s) and public interest considerations then come into play- as DIAC acknowledges in the notice. But there is an argument at least that the public interest in disclosure outweighs the 'harm' from diversion of resources contrary to DIAC's assessment.

(Disclosure: I've commented along the lines above in the last day or so when asked by some of those involved.)

DIAC are no doubt under a lot of pressure on many fronts and resources are certain to be stretched. But that doesn't justify stretching provisions in the act in the way that seems to be the case here. Of course DIAC has some less than stellar FOI form, brought to light by the OAIC and Cornall reports last year. As to the promised new approach.... 

(Addendum: Gaming the system?

EFIC's blanket FOI exemptions under challenge

The Productivity Commission in an inquiry in 2012 into the Export Finance and Insurance Commission (EFIC) concluded it should not continue to enjoy a blanket exemption from the Freedom of Information Act in relation to insurance and financial services and national interest transactions. The government rejected this recommendation in January 2013. A bill before parliament would enact legislation to give effect to recommendations that the government accepted, but makes no mention of this one. 

Jubilee Australia with support from other organisations, academics (and your humble blogger) is urging the committee to look again at this issue. Luke Fletcher in New Matilda provides a case study of why more disclosure about how EFIC goes about its job is important.

Quite apart from the specific arguments relevant to this case, blanket exemptions or exclusions from the FOI act for some government agencies entirely or in respect of certain functions, with no requirement to find harm from disclosure or to consider public interest factors, leave a significant hole in the principles of open, transparent and accountable government that underpin the FOI act.

Several submissions (mine, the Media Entertainment and Arts Alliance, there are others) to the Hawke review point this out but whether Dr Hawke showed interest we don't yet know.

Schedule 2 of the FOI act lists the relevant agencies and functions that entirely or in part are exempt. It  has never be re-examined as recommended by the Australian Law Reform Commission in it's 1995 report "Open Government." That report said most of the agencies listed in Schedule 2 should be required to demonstrate, within 12 months, that they warrant an exclusion, and otherwise be removed (Recommendations 74 & 75).

EFIC could not satisfy the Productivity Commission on this score.

Blanket exemptions can rarely be justified.In best practice information access laws, there are none.

Jubilee Australia will be giving evidence to the Senate committee examining the bill on Friday morning. In addition to pointing to the Productivity Commission Report, and the ALRC report, they might remind senators of the Open Government Declaration, the lofty objects of the FOI act, and the Prime Minister's clarion call of 2010: "let the sunshine in."

Cosy opaque deals with business don't fit 21st century standards

Penny Mayes

The dust up over the mistaken release of some documents concerning car industry subsidies to the Australian Financial Review is still before the Supreme Court. The court is unlikely to examine the decision under the Freedom of Information Act to refuse access to certain documents that the AFR reports were claimed exempt on grounds that disclosure would damage international relations or involve release of  information obtained in confidence from the car manufacturers.

It isn't clear what the agency released, withheld and then in error gave the AFR. Regardless of whether the decision was in accordance with the exemption provisions of the act, a broader issue about transparency regarding the use of public money warrants discussion and debate. Put simply, those who receive large slabs of public money should be required to agree as a condition that the amount, the reasons for the payment and the anticipated returns will be made public.

The issue is getting a run in the business pages of Fairfax papers but deserves wider consideration. It probably won't get it at the top end of town where for years business lobbies have sat out discussion of accountable and transparent government only to chime in occassionally to argue the importance of protecting from disclosure the very sort of information Holden, Ford, and Toyota are keen to protect in this case.

 Bill Scales a former chairman of the Industry Commission and one time chairman of the Automotive Industry Authority wrote in the AFR last week that the case raises issues about the way that we want to be governed into the 21st century.

It’s about the right of Australian citizens to know, and the responsibility of governments to disclose, the actual level of specific industry assistance provided to these three companies. And importantly, what Australia can expect to receive in return from devoting a very large amount of scarce taxpayer funds to these three companies, rather than to some other national priority...
One element of our rapidly changing world is the desire for greater transparency in public discourse. We are living at the beginning of an open access world where the availability of reliable information is seen as an important characteristic of good government, governance and public policy. And yet in relation to company-specific industry handouts, Australia is operating in a schizophrenic political and policy environment.
Australian public policy should be changed so that firms receiving company-specific subsidies should agree that all information about the amount of any subsidy, the rationale for the subsidy and the likely economy wide benefits from the provision of the subsidy will be made public....
The importance of this dispute between the Financial Review and the federal government about the control of information goes beyond debates about freedom of information and industry policy. It goes to the very heart of how we want to be governed, now and in the future. Australia in the 21st century should have a strong bias towards, and a culture of, disclosure and transparency in all of our public discourse. We are part of the way there with our approach to some elements of public policy, such as education and health, but light years away from this ideal when it comes to company-specific handouts. Having a culture and practice of transparency and public disclosure when it comes to all assistance to industry is not only an investment in good government, but also our greatest protector against the insidious corruption of our important public institutions.

Michael West  in the Sydney Morning Herald contends the Department of Industry, Innovation, Science, Research and Tertiary Education is paranoid about protecting business interests and that the car makers' accounts and public relations and ''communications'' thickets are hard to penetrate. However:

The fact is, the government should not be hiding this stuff, nor chewing through taxpayer dollars trying to suppress information in the courts, information which should be public. It's in the public interest for people to know what deals are being struck with their tax dollars, especially if they are propping up purportedly unprofitable businesses....
Greater transparency is clearly warranted in the light of the findings of this Business Day investigation of the Holden, Ford and Toyota accounts. Once again, in a pattern replicated year in, year out, as much profit as appears possible has been sent offshore. The car industry, it seems, has been taking the taxpayer for a ride, an epic ride....
Above all, there is undeniable public interest in having this all out in the plain light of day. No suppression of information, and far greater transparency on the part of government and the manufacturers has to be a good thing.

At the state level there is also a tendency to treat payments to industry as sacrosanct- payments by the government to the organisers of the Grand Prix in Melbourne just one of many examples. But no-one has taken it as far as Queensland where the Bligh Government legislated an absolute exemption for seven years for information about incentive payments to an organisation for investing or spending money in the state that is intended to create job opportunities or to continue existing jobs. Holden, Ford and Toyota and lots of others would just love this, particularly if other jurisdictions would come on board.

Schedule 3 Clause 11 of the Queensland Right to Infornation Act provides that access to a document may be refused to the extent the document comprises exempt information, the definition of which includes: 11 Investment incentive scheme information 

NBN Co review leaves broad blanket exemption in creative hands

The Morris review of NBN Co's handling of freedom of information found the agency: 
. complied with its lawful requirements in administering the FOI Act

. used a careful process to identify exempt documents, has clearly articulated the reasons for the  claimed exemptions, and has not been extravagant in claiming exemptions;

. sought to minimise the cost to applicants by actively assisting in identifying possible documents that are the real basis of the request; 

. operated in a timely manner; and

. generally adopted a pro-disclosure attitude.

Mr Morris described the primary purpose of the review as to ascertain whether the provisions of the Freedom of information Act that apply to NBN Co. “have achieved the correct balance in practice between the pro-disclosure requirements of the FOI Act and the protection of commercially sensitive information that NBN Co. may hold." In essence how NBN Co in practice administered its FOI obligations. It came up well, perhaps on best behaviour in the first 12 months knowing all along this review was coming.  Applicants will hope it continues to comply with spirit and intent without too much smart lawyering to test the potential of available exemptions. The broad blanket nature of the exemption that defines what NBN Co. information is excluded from the act would appear to leave scope for that.

Interesting also that NBN Co. commendably links the FOI function with "knowledge management" and that Mr Morris rates its FOI staff well above others in his experience- according to NBN Co's main man he has a "passion for screenwriting' but we won't go there...

Policy costings should be disclosed-if they're someone else's

Eraser Girl

Mathew Franklin in The Australian reported this week on the Treasury knockback (paywall) to an Opposition Freedom of Information application for documents concerning Greens policies submitted for costing, an arrangement agreed at the time of the formation of the Gillard government. Today Franklin gave the Greens a hammering for hypocrisy given their strong advocacy for open government as Senator Milne defended the Treasury decision to refuse access:

If such costings could be obtained under FOI, Senator Milne said, it would mean parties would be unable to "get a reliable costing to make a decision". The comment was neither logical nor consistent with the Greens long-claimed devotion to openness.

When Franklin rang on Wednesday to seek a comment on the Treasury FOI response I said refusal of access on cabinet document grounds seemed strange. How would the Greens costings end up in a document submitted or proposed to be submitted to cabinet, and prepared for that dominant purpose? So too the Treasury claim the documents were deliberative documents.

Perhaps The Greens shouldn't have been surprised FOI came into play. Senator Milne in the Senate last November in debate on legislation to establish the Parliamentary Budget Office said:

One of the important reasons for the Parliamentary Budget Office is that those costings that you get done between elections remain confidential. If you have to put them to Treasury then they do not remain confidential, and you run the risk in that circumstance of the government anticipating what your election policies might be.

But as to hypocrisy..

Franklin quoted the FOI applicant, Liberal MP Jamie Briggs:

“I don't think that taxpayers should fund the costings of policies of a political party absent the public being able to see those costings,” and  “If the taxpayer is funding the costings of minor parties, they should be able to access the results.”

A far cry from last November when confidentiality for policy costings was the biggie for the Opposition.

For one, all sides agreed so the Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011 exempts the PBO entirely from the Freedom of Infiormation Act.

For two, Opposition speakers at the time were troubled at the prospect that their policy costings would be released during the caretaker period before an election. In fact front bench senators Mathias Cormann and Scott Ryan then sounded remarkably like Senator Milne now.

Differences in FOI acts in protecting against harassment or intimidation

Privacy Commissioner Pilgrim in  'I' and Australian National University [2012] AICmr 12  (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt  found scope for some point scoring against Fairfax.)
 
Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

FOI access to internal audit reports

WikiMedia Commons-John Groseclose

Linton Besser in the Sydney Morning Herald has written in the last week about internal audit reports obtained from the Department of Agriculture Fisheries and Forests, the Department of Infrastructure and Transport and the Department of Broadband, Communications and the Digital Economy all released in full or part in response to freedom of information applications. There may be more to come:

"A Fairfax Media investigation has obtained access to hundreds of pages of internal government audit reports that have exposed systemic weaknesses in the financial controls exercised by Commonwealth agencies. Such flaws are widely recognised as corruption risks for governments, but there is no agency specifically charged with investigating graft in Australia's largest civil service."

Besser reports today on the Government announcement that $700,000 is to be spent on a ''National Anti-Corruption Plan." A parliamentary integrity commissioner by September 2011 was part of the Government -Greens deal a year ago but is yet to transpire.

The release of internal audit reports raises some interesting FOI issues. The reforms of last year have narrowed the scope for what amounted to broad class exemption claims for these types of documents. As to what makes news once information of this kind is released, good reports unfortunately don't cut it. And a snapshot in time of the situation in an agency two or three years ago won't necessarily convey the full or current picture.

PM&C publishes red flag compendium

The Department of Prime Minister and Cabinet has published a Guidance Note "intended to assist agencies when considering the application of the Cabinet and deliberative documents exemptions under the Freedom of Information Act 1982 .."

Wikimedia Commons-Share Alike

 The note says all the right things about the need to read it in conjunction with the Australian Information Commissioner’s Guidelines "to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act" and that it was developed in conjunction with the commissioner and the Freedom of Information Commissioner (and the Australian Government Solicitor). But it strikes me as a red flag compendium, full of cautionary messages about considerations that could justify non-disclosure, and little else. In the case of the deliberative documents exemption there are plenty of straws to alert a decision maker to the full range of possibilities when dealing with what insiders could regard as potentially sensitive information. I'm unaware of the precise timing but its appearance in July coincided roughly with the AAT decision in McKinnon and Department of Finance and Deregulation, a pre FOI reform case, where arguments for both these exemptions failed. Some of the "tips" in the Guidance Note are likely to be handy for those keen to head off similar challenges to decisions to refuse access to such documents in future, although others may need a little adjustment in the light of that decision.

The cabinet document exemption is absolute and not subject to a public interest test. But the deliberative document exemption only applies where disclosure of advice, opinion etc, on balance, would be contrary to the public interest. Of course agency decision makers who read and absorb the AIC guidelines will be exposed to the full picture including that the objects of the act, not spelled out in the PM&C note, require weight to be given to the public interest in disclosure "to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making, and..  by increasing scrutiny, discussion, comment and review of government activities" etc. But they won't from reading only what the lead government agency has to say on the subject.

After the barest of introductions, paragraph 3 quotes then minister Senator Faulkner in 2009 that "..there will always be some documents, the disclosure of which is not in the public interest, and which should properly be exempt under the FOI Act," continuing:

"It is essential that agencies consider carefully the application of exemptions to ensure the legitimate protection of government documents consistent with the application of the FOI Act."

This sombre message- in effect "don't let anything slip through"- sets the tone for what follows. As for the Declaration of Open Government, and similar commitments to a new era of openness and transparency, nary a mention.

AAT subjects "cabinet confidentiality" to rare scrutiny

In McKinnon and Department of Finance and Deregulation [2011] AATA 469 the Administrative Appeals Tribunal (Deputy President Hack SC and Dr Hughson) overturned the department's decision on a Freedom of Information Act application to refuse access to the final reports on three strategic reviews of Commonwealth government programmes–  on indigenous expenditure, the job capacity assessments programme and future directions for government service delivery. 

The Cabinet Strategic Priorities and Budget Committee (SPBC) had decided to commission the reviews at meetings in June and July 2009. They were then undertaken each by a different consultant, leading to the final reports in 2010 that were the subject of the FOI application. The executive summaries (and in one case an additional attachment) not the full reports were attached to subsequent cabinet submissions. The Department contended that the reports were exempt from access by virtue of either or both ss 34 (Cabinet documents) and 36 (deliberative documents) as the sections stood prior to November 2010. The Tribunal rejected the cabinet document claim on the basis that the evidence did not show the reports had been prepared for submission to cabinet. The deliberative document claim failed because the only public interest consideration argued against disclosure was a breach of Cabinet confidentiality, which the Tribunal found would not occur if the reports were released. While precedent was cited in support of the decision on this latter point, the Tribunal gave "cabinet confidentiality" rare, close examination, distinguishing the disclosure of part of the subject matter for Cabinet consideration from a disclosure that would reveal recommendations, deliberations, the views of any member of Cabinet, and conclusions reached.

McKinnon wins another one

Michael McKinnon of the Seven Network has chalked up another good Freedom of Information win, providing the basis for widespread media reports over the last week following disclosure of a consultant's report completed for the Rudd government early in 2010 that concluded spending on indigenous programs of about $3.5 billion annually, maintained over many years ''has yielded dismally poor returns to date. '' The document was released following an Administrative Appeals Tribunal ruling against the Department of Finance and Deregulation, overturning the department's decision that the report (and two others that have received little publicity to date, the Strategic Review of Job Capacity Assessments Program and the Strategic Review of Future Directions for Australian Government Service Delivery) were  exempt as cabinet documents and or deliberative documents. Some media reports describe the decision as a landmark, opening the way for greater access to information considered in cabinet. Its a good and welcome decision but it remains to be seen if the gates open at least a smidgen as a result.The cabinet document exemption claim failed because the Tribunal decided there was insufficient evidence that the documents had been prepared for submission to cabinet, something sure to be corrected from now on. (More about the decision in a separate post.)

The reports released to McKinnon have been published on the Department of Finance Disclosure Log

After the 18 month battle, McKinnon may not have been amused that the minister responsible for indigenous affairs Jenny Macklin says she wasn't part of all this, but is pleased the report is now in the public arena. A brave face after the event maybe. The taxpayer might be even less amused at the cost to date, with the Tribunal still to consider an application by McKinnon for costs, although the criteria for an ex gratia payment from the Attorney General in these circumstances puts the degree of difficulty in the eye of the needle class.

From ABC AM:

"In relation to in respect of" NBN commercial activities before Senate this week

NBN Co legislation that addresses a range of issues including bringing the company under the Freedom of Information Act (to some degree) is before the Senate this week. The legislation was the subject of this report by the Environment and Communications Legislation Committee last week. The FOI issue didn't attract attention in submissions-not surprising as they closed before the Bandt amendment in the House- or in the two committee hearings. The majority report [3.67-3.68] simply notes and supports the amendment, while coalition senators argue for full coverage for NBN Co as a prescribed authority. Issues concerning the uncertainty, canvassed here, about the scope and interpretation of the provision that would exclude the company from the act in "relation to documents in respect of" commercial activities may get a run in consideration of the bill in the Senate.


Coincidentally another Schedule 2 issue, the exclusion of the ABC from the FOI act "in relation to documents in respect of" program material surfaced in the news today in this Herald Sun report. The exclusion was relied upon to reject an application for information about the cost of the set re-design for the 7.30 program. As noted previously a Federal Court decision generously interpreted this provision in a way that even Managing Director Mark Scott admitted justified re-consideration in 2009-that interest appears to have waned.


Schedule 2 of the act and the blanket exclusions it confers was ripe for re-examination when the Australian Law Reform Commission recommended [76] 16 years ago. It wasn't then or during the recent FOI reforms. It's a long haul-the two year review of the act due in 2013 is the next best chance.

FOI 101: read the act and Guidelines urges Commissioner.

The Australian Information Commissioner, as reported by Sean Parnell in The Australian today:

"The message of cultural change has certainly got across, including at the highest levels in government," Professor McMillan said. "But I'm also struck by the number of instances in which officials making decisions have just not adequately read the new act or the guidelines. "They've made decisions that clearly show they're not up to date with the detail of the new law." Professor McMillan said the mistakes were not deliberate -- "simply ignorance" -- but would be reflected in decisions by his office."

I haven't been through the Commissioner's Guidelines in any detail. Of particular interest is Part 4 on conditional exemptions and the application of the public interest test. But one user of the act, on reading those relating to charges (Part 6) told me yesterday:

"You'd need to be a lawyer with a retinue of lackeys to be able to remember all the exceptions and convoluted reasoning behind all that crap. No wonder lawyers charge like the proverbial. It is mind-numbing stuff."

There is also the question of what meaning to attach to the legislative requirement that an agency "must have regard to" the Guidelines in performing a function or exercising a power under the FOI Act (s 93A(2)). That's something short of "must act in accordance with" or similar words that would give them binding character. They mean "can't be ignored" but....

I'd be interested in any views on this.

With regard to charges, there is still plenty of room for distress and dismay on the part of applicants when faced with the bill for an application for non-personal documents, and for argument about the equity of the charges regime. Parnell refers to one aspect, in the context of the public release of documents:

Last gasp for "confusion and unneccessary debate" argument?

Well there may be others still to come, but the clock is ticking down to 1 November when changes to the Freedom of Information Act should see this claim as a public interest against disclosure under the Commonwealth act despatched to the bin. In the meantime as reported by Ben Grubb in the Sydney Morning Herald it gets a prominent run arising from an application to the Attorney General's Department for documents distributed to representatives of the internet industry during consultations in March on a proposal that would require ISPs to store certain internet activities of all Australians - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access. The application resulted in lots of black ink but not much else. All parties to the consultations have been sworn to secrecy. The SMH link provides access to what was released and the notice of decision.

Dr Haneef loses another round

In Haneef and Australian Federal Police (the Commonwealth Director of Public Prosecutions was also a respondent) [2010] AATA 514, Senior Member McCabe upheld the agencies' Freedom of Information exemption claims, with a small number of minor variations, in respect of documents withheld concerning his detention and cancellation of visa in 2007. Some documents had been previously released.

The decision is straightforward in terms of the law, but includes a long summary of the background [6-48], a couple of interesting comments about legal privilege [60-76] and affirmed the absolute nature of the exemption (section 33(1)(b)) that relates to provision of information in confidence by a foreign government [230-234].Regardless of whether the information is now in the public domain, or any other consideration if the evidence is there is an agreement between agencies, an Australian officer says the (UK) Metropolitan Police Service gave it in confidence, and the Tribunal has no grounds to doubt the claim, that's the end of the matter. No doubt in dealings with us, all foreign government agencies mark their aide-memoire accordingly.

As Senior Member McCabe said [232]:

"..the MPS is serious about protecting secrets. It is irrelevant whether that attitude is consistent, reasonable or admirable. I accept there is a risk that information from overseas might be rendered inaccessible through the simple device of channeling it through the hands of a supposedly prickly agency."

A submission from counsel for the applicant that the Memorandum was "drawn so widely that it is attended by an 'air of unreality'"  was of no relevance. Dr Haneef encountered a similar hurdle in two previous AAT FOI cases, here and here.

Gadens Lawyers on FOI Reform legislation

This summary from Gadens Lawyers of the Federal Freedom of Information Reform legislation isn't bad, and the table of exemption provisions is helpful, although the article doesn't cover much beyond changes to exemption provisions.

Names of public officials carrying out public functions

For another purpose I've done a little research recently on the disclosure of the names of public officials when requests under Australian freedom of information laws seek access to documents that include information about the conduct of government functions. While the comments that follow don't include detailed examination of the situation in every jurisdiction, and much depends on the particular circumstances and the law that applies in each, it's clear that generally names will not be exempt. The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia.

Howard's kitchen cabinet not the real thing

While making it clear that government leaders are at liberty to establish whatever decision making processes they wish, a decision last week by Deputy President Forgie of the Administrative Appeals Tribunal (Telstra and Department of Broadband, Communications and The Digital Economy [2010] AATA 118) points up the problem that will arise from a Freedom of Information perspective in setting up a group of ministers and treating it as if it is a cabinet committee, even though it isn't. When push comes to shove, as in this case harking back to FOI applications in February and May 2007, documents provided to the group won't qualify as cabinet documents.

After almost writing a book on what constitutes "the government" and related issues and considering the evidence, Deputy President concluded:

When I have regard to all of the matters to which I have referred,  I have concluded that the Senior Ministers’ group was not a committee of Cabinet. It was treated as a group that was analogous to a committee of that sort but its being treated in that way does not make it a committee of that sort. There is no evidence of Cabinet’s having decided that the Senior Ministers would be able to make decisions on certain matters that would be binding upon Cabinet itself, as in the case of the NSC, or that their decisions required Cabinet’s discussion and ratification, as in the case of decisions of the ERC. If the Senior Ministers were a committee of Cabinet, it would be expected that there would have been some formal decision about the status of their decisions. On the evidence I have, there is none. It would be expected that there would be some reference to the work of the Senior Ministers in material available to the public or at least to the legislative arm of government. An obvious place to reveal its existence would have been in PM&C’s Annual Reports. If not there, then it would be expected that information about its existence would have been available from the Cabinet Secretariat as directed by the Cabinet Handbook but it was not. There is no reference to be found. Unquestioningly, the former Prime Minister was within his rights to create the Senior Ministers’ group and to direct its tasks as he would. Having regard to the findings I have made, however, I am not satisfied on the evidence that I have that he established it as a Cabinet committee either on an ongoing or an ad hoc basis.[149]

The decision covers important ground regarding public interest considerations in the internal working document exemption, the subject of another post. The "kitchen cabinet" issues were as follows.

FOI law protects confidential complainants

December and January saw quite a few Freedom of Information decisions around the country, and I'm behind in mentioning some of interest.

Two NSW Administrative Decisions Tribunal cases illustrate that the identity of complainants or those who provide similar confidential information about an individual is well protected by exemptions in the NSW Freedom of Information Act. While the personal affairs ( Clause 6, Schedule 1) and confidential information (Clause 13(b)) exemptions are the usual provisions relied upon, there are others that are rolled out from time to time.

In Head v Commissioner of NSW Police [2010] NSWADT 27 Judicial Member Montgomery acknowledged the interest the applicant in seeking access to information in relation to complaints that were made against him as a serving NSW Police officer, and his concern about aspects of a resulting investigation. The applicant contended that the information, if disclosed, would enable him to defend himself from what he believed were false allegations. Judicial Member Montgomery said any discrepancies in the investigation were matters to be pursued through appropriate channels. The Tribunal should not attempt to cure defects that might exist in those processes. The Tribunal’s role was to determine the correct and preferable decision in regard to the status of documents under the Freedom of Information Act. He found the withheld parts of documents concerning complaints- names, addresses and personal information -was information concerning personal affairs, and that disclosure in the circumstances would be unreasonable (Clause 6) ; and that statements or names and addresses of third parties were provided in confidence in a personal capacity (including some from internal sources); disclosure might undermine the provision of such information in the future; and as it was unlikely that disclosing the contents of the statements and letters would enhance the Applicant's understanding of the investigation in any significant way , the public interest in maintaining the exemption outweighed the public interest in disclosing the contents of the documents. (Clause 13(b)).

In Starr v Sydney Water Corporation[2010] NSWADT 28 Judicial Member Montgomery found details of the Corporation's employees and contractors who complained about the applicant, a person in a longrunning dispute with the Corporation, alleging bullying and harassment, were exempt under the confidential information exemption (Clause 13(b)). . Somewhat surprisingly Judicial Member Montgomery [71-77] also found that the disputed documents were exempt under the business, commercial and financial affairs exemption (Clause 7(1)(c)) as they contained information about the Corporation's treatment of employees and contractors in the performance of their duties and its response to the matters raised by them about dealing with the applicant. It was unnecessary to consider other exemption claims for the documents (legal privilege (Clause 10) and operations of agencies (Clause 16)). 

Not all complaints are made on the basis of confidentiality but those that are, or deserve such treatment are well protected.

The hat you are wearing may have FOI implications.

This report by Richard Baker in The Age about an unsuccessful Freedom of Information application to the Reserve Bank of Australia for a report on the legality of multimillion-dollar payments to foreign middlemen used to win currency printing contracts, appears to indicate the RBA is claiming that a  document held by an officer of an agency as director of a separate but related entity is not held by the agency , and not subject to FOI.

According to The Age, the 2007 report by Freehills was for the Board of Note Printing Australia, a wholly owned RBA company. The company and a sister company Securency, jointly owned by the RBA and a British firm, are both chaired by Assistant RBA Governor Bob Rankin who apparently holds a a copy of the report in that capacity. According to The Age the RBA is refusing to release the Freehills report on the grounds that it is ''not a document of the agency'' and ''not within the RBA's purview to release''.

The odds would appear to be against The Age on this one, but it's an interesting issue. 

The term ‘document of an agency’ is defined by subsection 4(1) of the FOI Act to mean a document ‘in the possession of an agency’, whether it was created in the agency or received by the agency from another agency or a source outside the government. Possession is the critical factor.

The RBA response is presumably based on the argument that there is no copy of the report in  RBA's records management system, and any copy held by Dr Rankin has not been received in his capacity as an officer of the RBA, but in his separate capacity as a director of the company. The Age of course might argue that he only holds a copy because he is an officer of the RBA which appointed him, as part of his duties, to be a director of the companies. Therefore it is held by him as an officer in the performance of his duties as an officer of the RBA.

Good luck.