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Tuesday, November 10, 2015

Labor makes a 10 minute hit on culture of secrecy, government speakers stay mum

In the House of Representatives yesterday Alannah Mactiernan (Perth, ALP) moved:
That this House:
(1) expresses concern at the culture of secrecy prevalent in the Government and the serious undermining of the core principles enshrined in the freedom of information legislation;
(2) notes the Government has:
(a) defunded the Office of the Australian Information Commissioner (OAIC) despite failing to pass its legislation to abolish the office; and
(b) failed to advance Australia's application for the Open Government Partnership (OGP); and
(3) calls on the Government to abandon its attack on the OAIC and provide it with proper funding, and recommit to joining the OGP.
The motion didn't get far in the 10 minutes allocated before debate was adjourned with Mactiernan and Labor Party colleague Graham Perrett the only speakers.

Could the lack of interest or appetite on government benches to contest the argument suggest a decision not to waste time defending the indefensible while rethinking is underway or completed on both the OAIC and the OGP fronts? Ah, we live in hope.

Mactiernan recounted to the House an FOI experience unlikely to stand the pub test: 
an application to a minister (in this case an assistant minister) that was not processed before the reshuffle, for documents concerning a decision to support a $1.7 billion project in WA couldn't be processed afterwards
"since the portfolio of the assistant minister no longer exists and.. the documents have not been transferred to the new minister.... 'These documents are specific to the minister and to the staff.'
Iran 1970: Public Domain via Wikimedia Commons
Crikey's Josh Taylor ran into the same problem with FOI requests to the office of Prime Minister Tony Abbott that had gone unanswered for seven months before Malcolm Turnbull’s arrival in the office. They couldn't be processed thereafter because the documents weren't held by the office of the current PM. Taylor speculates "the FOI request was lost in one of the dozens of bags of shredded documents seen leaving the prime minister’s office the morning after the leadership change."

The rules about retention, transfer or disposal of documents when the minister leaves or transfers office are hard to find. In theory at least documents held by a minister's office concerning the discharge of functions as a minister are records for the purposes of the Archives Act. 

 Archives Australia provides guidance on what happens to records held by an agency when administrative changes occur, but nothing that I can see when ministers leave the chair.

The FOI situation is that a minister's office is a separate entity from the department for which the minister is responsible. Documents subject to FOI in the hands of the incumbent at any time are those documents "held by the minister" that relate to the affairs of an agency or department. 

If the documents went out the door or found their own way to the shredder as the previous minister and staff headed out, the documents won't be held by the newcomer, end of section.

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