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Wednesday, December 21, 2011

Queensland agencies warned of dangers of "briefing up" on RTI requests.

Following the post last week about the Daily Telegraph's excitement concerning "secret tip-offs" to the NSW Premier about freedom of information applications, and my comment regarding fortnightly reports to the premier's department regarding applications on hand, a Queensland reader wrote that in 2010 a proposal was floated there to introduce a similar reporting requirement. The proposal encountered resistance from government agencies particularly over privacy concerns and was jettisoned pretty quickly. Someone has since made a request under the Right to Information Act for relevant documents. Some posted here on the premier's department disclosure log include comments along these lines from several agencies. Both the Solomon Committee and the Information Commissioner while acknowledging others need to be kept informed, also have drawn attention to the dangers of "briefing up" about FOI applications, particularly any express or implied invitation to the minister's office or senior echelons to become involved in decision making required by law to be made in an other's name.

The Solomon committee (p 316) in Queensland had looked at "contentious issues management" practices  observing that it was perfectly acceptable to keep others informed about FOI
"requests for documents that might result, when released, in the government having to deal, unprepared, with a contentious issue. Freeing up information for an applicant does not require that the government be kept in ignorance of the process that its own agency is undertaking to provide the information." 
"it is totally unacceptable for a superior officer (or a ministerial officer or media advisor) to try to influence a decision by an FOI officer whose responsibility is to apply the law."
In two separate reports the Queensland Information Commissioner has since commented on "briefing up" about FOI/RTI applications in two compliance review reports.

Regarding Queensland Health  ( 8.3.3 starting at p.45):
Agency decision-makers frequently need to discuss applications with other people in the agency. Some information requests are so complex that decision-makers need assistance to understand the information or datasets involved, and to identify and consider the public interest factors that might affect whether the information should be released. This is an appropriate information gathering process.

A separate, but related practice, is to provide a briefing about the outcome of certain applications to senior agency staff. This is commonly done if the agency decision-maker anticipates releasing sensitive information, for example, information that might result in a media report or a question in Parliament. OIC appreciates the need for agencies to brief senior executives about the release of sensitive information in time for senior staff to prepare for media attention. To ensure independence of decision-making, the briefing would occur after a decision had been made to release information, and the information would be released shortly after the briefing. In practice this approach may not allow
sufficient time for briefing notes to be prepared or considered prior to the release of the information. The agency’s entitlement to an accurate briefing prior to release must be accepted.

It is important to note that information gathering and briefing of senior staff are two separate processes which should not be conflated. In particular, issues arise if an agency briefs senior executives prior to the finalisation of the decision and the briefing is done in such a way that there is ambiguity about whether the decision-maker is gathering information from the senior personnel or briefing the senior personnel about an imminent decision. A practice of briefing senior personnel within an agency prior to deciding to release information to the applicant exposes an agency to two key areas of risk as follows: Increased risk of perception of interference with the decision-making process by senior personnel, whether or not this has occurred; and
pressure on the legislative timeframe of 25 business days for processing an application to allow time for the briefing procedure. Either application processing has to be shortened to incorporate time for the briefing process into the 25 business days, or there will be occasions when an extension of time for decision-making has to be sought from the applicant.
Similar comments appear in a compliance report on Queensland Police Service (section 8.4.1 p.67)

Thanks to the reader for the links.

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