Search This Blog

Friday, September 19, 2014

Attorney General's Department to lead on FOI decision making, but where?

Ever get the feeling you have been done over by experts?

Me too after a 16 month battle over access to a document held by the Attorney General's Department.

The worry is that the 'experts' in this case are those chosen by the government to provide guidance to other agencies about the act after the Office of Australian Information Commissioner is disbanded at the end of the year.

A win of sorts in the end as the department has now conceded in light of an assessment by the Office of Australian Information Commissioner (I was in the queue there for 12 months) that contrary to the original and internal review decisions, the document is not a deliberative process document exempt under s 47C and should be released. 'Concede' for the most part that is.
LaurMG 'Frustrated man at desk'
AGD argues now and for the first time that two attachments aren't an integral part of the document itself but separate documents outside the scope of the application, so why don't I just make a fresh application.To my amazement the OAIC agree that the attachments (they don't appear to have seen them) are separate documents, but tell me the door is open to argue the toss about this in the AAT at $861.Thanks. Argh! 

I'll leave comment about the substantive issue of the response to the report to another post but as to FOI, don't laugh when you see that the document in question is about the government's response to the Australian Law Reform Commission report Secrecy Laws and Open Government in Australia. 

The report was completed and handed to the then attorney general in December 2009. Once tabled in Parliament in March 2010 it hasn't been heard of since.

In May 2013 I lodged an FOI application for the most recent summary of work undertaken and yet to be undertaken on the report. The AGD said it held one relevant document, a briefing note to the then secretary dated 24 August 2012. (Hmm, yes I too read something into the fact the most recent document was nine months old at the time.) 

But no dice on access - the document contained matter "in the nature of consultation and deliberation" and the factors against disclosure, "for instance release of the material could damage the relationship between an agency and the Government," outweighed any factors in favour of disclosure.

The back and forward with the department is at Righttoknow and in previous posts here and here. I sought review by the OAIC in August 2013. When they got around to it, they concluded the exemption did not apply, the document should be released and the department complied.

Given the assertions about the public interest considerations against disclosure you would  think the relationship between the department and the attorney would be shot to pieces as a result of the disclosure. And that officers of the department now won't do their job properly.

More realistically neither will happen as I expect this was classic gaming, grasping at straws to delay the inevitable or see me off.

I wonder whether the department bothered to alert the Attorney General to the disclosure when they released the briefing note on 5 September, given the dire predictions about likely effect; whether the OAIC said anything to the department about wasting the time and resources of both; or whether senior management at AGD pay any attention to poor form like this.

AGD cited the following public interest considerations against disclosure. Who knows, they may turn up in a "how to" guide in future for dealing with an application for a document just like this - years old that throws light on the department's handling of a major costly and comprehensive law reform report. The only question, how to what?
  • "whether it is contrary to the public interest to disclose draft material that has not gone before the relevant minister (or ministers) and does not reflect the government's settled policy (or even a settled view within an agency) and would have cross-portfolio implications if released
  • whether it is contrary to the public interest to provide the public with a factually incorrect sense of direction that an agency (and the Government) is taking on matters of criminal law, where the material in question uses strong language that would suggest it is the Government's final settled position when it is not
  • whether an agency could effectively discharge its responsibilities if material prepared for internal consultation and consideration was released prematurely  and damaged  the relationship between an agency and the Government and
  •  whether it is contrary to the public interest to disclose material that would inhibit policy officers  from considering (and documenting) a full range of draft responses to ALRC recommendations."

No comments:

Post a Comment