Tuesday, June 11, 2013

Dodgy FOI decision by Gillard Government: Update

11 months ago, I asked for an explanation of why the Gillard government applied a decision making process to an FOI request in 2010, that was later that year made illegal. I didn't realise at the time that the legislation outlawing the behaviour was not yet in effect, but realised after sending the email to the MP Anna Burke. I already updated my original blog post indicating I realised my mistake, but never bothered to tell the MP.

Well, I just got an emailed reply, just ridiculously late.

tl;dr: No surprises. She claims that the result "might" change based on the changed definitions, or they might find another hiding place, and it would be up to someone to actually lodge a request for a review, rather than the government correcting itself proactively.

And here it is, in full:

Dear Mr Crafti,
Thank you for your email expressing your concerns regarding section 11B of the Freedom Of Information act 1982, I deeply apologise for the extensive delay in responding to your enquiry. I only recently received back advice from the Attorney General’s office.
The reasons for the original decision in relation to the FOI application that you refer to are set out in the letter from the Attorney-General’s Department to the FOI applicant, which has been made public.  The reasons explain how the person making the decision applied the provisions of the Freedom of Information Act 1982 (FOI Act), as they were at the time of the request, to the documents that were within the scope of the request.
The request was made in June 2010.  Amendments to the FOI Act came into effect in November 2010.  The amendments made changes to the exemptions and it is possible that if the request had been subject to the current provisions of the FOI Act the result may have been different.  In the amendments some exemptions were recast as ‘conditional exemptions'.  Access to a conditionally exempt document can be refused only if, in the circumstances of a particular case, access at that time would, on balance, be contrary to the public interest. This single public interest test replaces a range of public interest tests previously in the Act.
Both the previous and the current provisions have exemptions that apply to deliberative matter.
Deliberative matter is content that is in the nature of, or relating to either:
  • an opinion, advice or recommendation that has been obtained, prepared or recorded
  • a consultation or deliberation that has taken place
  • In the course of, or for the purposes of, a deliberative process of the agency or minister.
The current provisions require consideration of a number of specific elements of a ‘public interest’ test.  The effect is that now, under the FOI Act, access must be given to documents containing deliberative matter unless access would, on balance, be contrary to the public interest.  A list of factors to be considered in determining whether release would be contrary to the public interest is contained in the FOI Act, together with a list of factors that are irrelevant to consideration of the public interest.  One of the irrelevant factors listed in section 11B of the FOI Act is access to the document could result in confusion or unnecessary debate.  However, at the time that the decision to which you refer was made, that factor was one that could properly be considered in deciding whether disclosure would be in the public interest.
Officers of a department making decisions on requests under the FOI Act apply existing provisions of the legislation to the documents to which access is requested.  If an applicant considers that the legislation has not been correctly applied in relation to their request, they are able to apply for review of the decision.  In the case of the request to which you refer, the applicant was advised of the rights of review that existed at the time.  The amendments that came into effect in November 2010 made changes to the system for review of FOI decisions. A person may still seek internal review of an agency decision, but can also apply directly to the Information Commissioner to undertake merit review of the agency decision. A decision of the Information Commissioner can be reviewed by the AAT.  In addition, application fees for requesting access to documents and applying for internal review were removed.
More information about the changes to the FOI Act that were introduced in November 2010 can be found on the website of the Office of the Australian Information Commissioner at http://www.oaic.gov.au/publications/agency_resources/guide_freedom_of_information_act_1982.html#_Toc308535010 .  Guidelines issued by the Information Commissioner on the application of the provisions of the FOI Act can be found at http://www.oaic.gov.au/publications/guidelines.html .
Thank you for bringing your concerns to my attention and again I apologise for the long delay in responding to your enquiry. Please do not hesitate to contact me should you have any further comments or enquiries regarding this or any issue that may be of concern to you.
Yours sincerely
Anna Burke
Anna Burke MPSpeaker of the House of Representatives
Federal Member for Chisholm
Level 1, 207 Blackburn Rd, Syndal 3149
Ph: (03) 9802 0566  I  Fax: (03) 9802 0588
P Please consider the environment before printing this email

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