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Sunday, May 14, 2006

ADT FOI decision: Monty Python where are you?

There couldn’t be a more straightforward request: “I want copies of 14 policy documents listed in your Summary of Affairs”.

Or could there?

This ADT decision - Miriani v NSW Police (No.2) (2006) NSWADT 134 – recounts a two year dispute between the applicant and the agency following a request for access to documents about specific policies, guidelines and standard operating procedures listed as available for public inspection.

The headnote on the ADT decision is simply “Jurisdiction” and the primary matter before the Tribunal was whether it had jurisdiction to consider an application for review by the applicant. It followed the agency’s request for $210 (subsequently reduced to $161.10) as an “advance deposit”; claims that parts of some of the documents were exempt (including clearly incorrect attempts to claim internal working document and legal professional privilege – two exemptions excluded from application to policy documents by Section 15(2) of the FOI Act – and surprisingly a claim that some information in the documents was personal); and an attempt to impose conditions on access (no copies but an opportunity to view the documents at Police Headquarters – “pen, pencil and notepad may be used”).

The complexity partly arose from the fact that the applicant had sought access by lodging an FOI application under Section 17 (Part 3 of the Act), despite the fact that policy documents (in theory at least) are available under Part 2 without the need for a formal FOI application.

The ADT concluded that where a formal application under Part 3 is received it must be dealt with in accordance with the provisions of the Act; refusal grounds are those specified in Section 25 (but things could be going around in a circle here as one of the grounds for refusal is that documents are otherwise available for public inspection); on the other hand if a request is made under Part 2 it should be dealt with in accordance with procedures for informal access and Premier’s FOI Manual and Ombudsman Guidelines – complaints can be made to the Ombudsman but not to the ADT; if a document made available under Part 2 has some matter deleted, it is open to the applicant to lodge an application under Part 3 – the agency would then have to make a determination and the matter could be brought to the ADT.

In this case the ADT has referred the matter back to the Police to make a determination. Who knows, two years after he asked Mr. Miriani may finally get to see the policy documents he asked for - and as for the Police Service, not a rapped knuckle in sight.

The episode illustrates that even with the very limited pro active disclosure requirements in the NSW Act that the Police (and I expect other agencies) may not have readily available for public inspection a full and complete version of policy documents with any properly exempt matter deleted. While clearly some aspects of Police policy, guidelines and plans should not be publicly available because they could compromise operations, there shouldn’t need to be a scramble to get these things sorted out only when a member of the public asks for a copy.

The Act should require policy documents to be listed and available on the web – this would preclude some of the silliness about charges for documents that arose in this case and ensure they are available to members of the public free of charge.

As we have blogged previously, in the google age a more far reaching approach should be taken to pro active disclosure of government information – simply requiring that policy documents be listed in the summary of affairs published twice a year in the Government Gazette is strictly horse and buggy stuff.

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