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Tuesday, December 11, 2007

Political influence in FOI decision making

Kelvin Bissett in the Daily Telegraph 5 December - Pollies get say in FOI scrutiny - picked up a couple of points from my review of the NSW FOI Procedures Manual posted here a few weeks ago.

My review in full is here.

Bissett made quite a point about the manual's comment that ministers may need to be consulted prior to the making of a Freedom of Information determination in some instances.

Bissett said: "The policy will surprise many applicants who believe their FOI requests will be dealt with at arms length of the political process"

I'm afraid FOI applicants who have been labouring under this apprehension haven't picked up on some of the clues that suggest some responses to FOI applications have a significant input from ministers and ministers staff. And it's not just an issue in NSW.

The report on the Independent Audit into the State of Free Speech in Australia included a section in the Freedom of Information chapter about political influence on decision making. It said that while there was nothing untoward in ministers being made aware of FOI applications being processed, the practice of informing them prior to the making of a decision raised the potential for political influence in a direct or indirect way. The Commonwealth Ombudsman in 2005-06 reported that "Complaints to his office concerning applications for access to non-personal documents typically raised concern about the involvement of ministers and their staff in dealing with a particular application". Regular reports on FOI applications are submitted by some agencies to ministers - the Audit had evidence of this happening in Treasury and Defence.

Guidelines on processing applications for Victorian Government agencies issued by the Department of Justice suggest that a brief on any FOI application should be provided to the minister's office 5 days before finalisation.

Quirks in the Federal and Victorian FOI Acts give the minister discretion to decide any FOI application received by a government department. While there is no evidence that this authority is exercised often, if at all, it may provide the justification for bringing FOI matters to the attention of the minister.

In NSW, where the Act gives authority for public servants to decide on access to agency documents, ministers' offices are kept regularly informed about FOI applications on hand and the Premier's Department requires a fortnightly report on FOI work in progress. A NSW Auditor General's Performance Audit report in 2003 expressed concern about possible perceptions of interference in decision making, citing examples in the Ministry of Transport where the then CEO sought to influence determinations, and in the Department of Education and Training where a draft determination was altered following comments from staff of the then minister. These are probably tips of icebergs.

A more significant problem everywhere is that in some agencies public service responsiveness to the government of the day results in a tendency to act in the government's interests by refusing access to potentially controversial or embarrassing documents.

We are still a long way from routine disclosure of information sought by applicants under freedom of information laws.

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