Queensland CMC report floats drastic RTI change

The Australian

The Executive Summary of the report by former High Court judge Ian Callinan on his review of the Queensland Crime and Misconduct  Commission released yesterday is peppered with ascebic observations about  CMC performance and seems mostly about winding the organisation in or taking it down quite a few notches.

But the general nature of Recommendation 10 as framed in the summary and without further explanation is remarkable. It seems to suggest an about face on 30 years or so of administrative law principle that government agencies should give reasons for a decision, including for a refusal of access to information.

Mr Callinan recommends that the Right to Information Act be amended to restrict agencies and the Information Commissioner "from being required to give reasons for refusal to produce documents" and such a restriction should apply for a period of nine months. Perhaps this is meant to be in limited circumstances, for example in responding to requests for documents concerning complaints that may end up with the CMC but the summary doesn't say so. It elaborates on the above in these terms:

"The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise this is a far-reaching provision but cannot see any other solution that would prevent leakage of information."

 Reasons could be forced out by a contrary order by the Supreme Court "in situations of compelling public interest."

If there are detailed reasons for the recommendation they are yet to be released. The Executive Summary makes only a passing reference to the underlying issue, "the problem of public release of the fact that the CMC is investigating a matter or a person."  

There is no mention of section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information." That sounds as if it might suit Mr Callinan's purpose, although there is room for debate about the public interest in disclosure of well founded allegations of corruption.  

However a quick look at the RTI regs indicates s 55 is yet to be activated four years after the commencement of the act because no information has been prescribed. 
(Correction: I looked in the wrong place. "Prescribed information" is defined in the dictionary of terms in Schedule 6 of the RTI act  as (a) exempt information mentioned in schedule 3, section 1, 2, 3, 4, 5, 9 or 10; or (b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b)." While in its current form it doesn't necessarily address Mr Callinan's concerns, some tweaking by amendment might.)
 

A lot more context and elaboration is needed to justify the recommendation in its present form.

Recommendation 10 reads:

The Right to Information Act ought to be amended to restrict Departments and agencies (including the Information Commissioner) from being required to give reasons for refusal to produce documents, the restriction to remain in place for 9 months. Reasons should only be obligatory if and when the complaint results in criminal proceedings or proceedings in QCAT; or, the subject or subjects of a complaint, authorise in writing the publication or disclosure of the complaint. The exception to this would be if the Supreme Court earlier determines there to be a compelling public interest in the disclosure of the reasons. We have selected 9 months on the basis that by then the CMC should have completed any investigation it undertakes. The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not  giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise that this is a far-reaching provision but cannot see any other solution that would prevent leakage of information about the existence, content or subject of a current complaint or investigation. The severity of the provision is tempered by two important qualifications that we recommend apply, namely that the embargo is limited to a 9 month period, and that it be subject to contrary order by the Supreme Court in situations of compelling public interest. Similar amendments will be required to the Ombudsman Act to restrain the Ombudsman from giving reasons for declining to intervene in a matter.