Warning that doing government business through personal emails could amount to misconduct, or worse.

The South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) is concerned that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounds a warning:

"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."

Just a South Australian issue? 

I haven't seen it raised by the various watchdogs in other Australian jurisdictions, but it would be naive to think it doesn't or couldn't happen elsewhere.

And just ministerial staffers?

In an article in July this year based on documents released under FOI about an advertising campaign by the Rudd government to deter boat arrivals, Tom  Swann uncovered references to an email described as from “the Minister’s Gmail”:

The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”. The email ordered “Full-page ads in all metro tabloids the day after the announcement and the next 3 days”, “Ads in all major ethnic papers”, “radio spots” and “social media”, with a budget of $30 million. It also provides the campaign slogan.

"Personal emails" cropped up in the UK in 2011 as an access issue prompting the Information Commissioner there to issue guidance that emails of this kind could, depending on content, come within the terms of the FOI act there. On that score in most jurisdictions here, the test would be whether the email is held by the agency or in the possession of an officer carrying out duties. 

Who ministers and minders talk to about what

Jack Waterford in The Canberra Times compares some aspects of transparency in the UK as practiced by the PM and other ministers concerning meetings with lobbyists, with our very own, echoing observations here about the quite word in the ear approach that slides under the radar in this part of the world. "Spot on, Jack"  I say in a comment just published.

In a related matter, an important decision in the Victorian Civil and Administrative Tribunal last week saw Vice President Judge Jenkins take a broad approach to what constitutes an official document of a minister and within scope of the Victorian Freedom of Information Act.

In The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 Judge Jenkins ruled that the diary of Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier and that many entries in a sample provided to the Tribunal related "to the affairs of an agency" even where they did not directly concern departmental business but were relevant to the Ministerial responsibilities of the Premier or any other Minister, as a Minister of the Crown. The range of entries which Judge Jenkins found would qualify for release (subject to any exemption claim) include:

• (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
• (b) interaction with public servants, both with and without the Premier;
• (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
• (d) attendances involving foreign dignitaries, including politicians and diplomats;
• (e) other entries which may record events, whether or not attended by the Chief of Staff; and
• (f) entries in the nature of descriptions, observations or outcomes.

While welcoming this new potential extended torchlight on what ministerial advisers get up to, I expect lawyers will be pondering Judge Jenkins finding [at 75] that

"the expression ‘relates to the affairs of an agency’ does not connote direct involvement by an agency in the document per se, but rather whether the document records any act, matter or event which falls within the Minister’s responsibilities as a Minister of the Crown." 

Information of the kind outside scope where similar words appear in legislation, as in this decision by the Australian Information Commissioner, because it relates to party political activity can still be distinguished. But  it seems to me Judge Jenkins has nudged things forward a notch or two.

As Jack Waterford points out, however, you won't find in these parts anything like that published by 10 Downing Street at "Who ministers are meeting'":

 It lists the diary appointments of all British ministers, and of their senior minders, and of their department heads and senior executive officers. It also lists meetings with journalists, and their organisations. Mostly, it gives some clue about the nature of the discussions (David Cameron, October, met with Joe Lewis to discuss redevelopment of Tottenham Hotspur stadium, or, Lockheed Martin, to discuss Warrior upgrade program.) In some case, little lobbying is said to have occurred: Archbishop of Canterbury, general discussion or Bank of England, discussion of economic outlook.

Should ministers be in the know about access applications?

Sydney's Daily Telegraph at the weekend under the headline"Barry O'Farrell's secret Freedom of Information warnings" reported that NSW Premier in one of his first acts in power following the March election, set up a system "to ensure secret tip-offs about public efforts to access embarrassing government information" and potentially more seriously, that his department suggest he lie if asked about the system in parliament.

"Documents obtained under FOI have shown the Office of the Premier installed a system on May 19 to receive weekly status reports from his department on requests from the media, opposition and general public."

I don't know what system Premier O'Farrell set up, but for many years, the Premier's department has required each agency to provide a fortnightly report on FOI applications on hand, and I would be surprised if this in some form doesn't form part of a regular briefing for each minister concerning portfolio agencies and to the Premier overall.

On a side issue, I'm not aware agencies refer to this possible use or disclosure of personal information in any privacy notice in their GIPA material, as they should where the applicant is an individual. It would be better still not to include personal information in any such report if a minister insists on continuing the practice. Let's hope this close ministerial interest extends to whether their agencies are living up to the spirit and intent of the law. And that applications by journalists and the opposition once identified aren't singled out for differential slow and tougher decisions as Alisdair Roberts discovered a few years ago in Canada. (Is there a double standard on access to information?)

The Telegraph seems to be confusing communication with a minister's office about the status of access applications, with communication inviting, encouraging or allowing the minister or staff to influence or direct a decision to be made in an agency officer's name. The "lie" claim reflects this confusion.