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International Law

: Open and Shut

McKinnon High Court challenge documents released; still trouble elsewhere

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Special Minister of State Senator Ludwig made sure the public were informed that Treasury documents the subject of the ministerial certificate that prompted an unsuccessful High Court challenge in 2006 had now been released by that department, in the first instance that has come to light of a new application for documents previously covered by a certificate, following legislative removal of the power to issue them.(I know these things happen but as of today the link to the Minister's Media statement 52/2009, says the page, ahem, can't be found.)

You can read this report by Andrew Fraser in The Weekend Australian. As to what Michael McKinnon now with the Seven Network can make of the documents close to 7 years old on which a couple of million was spent to keep them from public view...

But no such public statement from the Minister about an Ombudsman finding that the practice of Federal agencies only starting the clock after they had decided whether to remit the application fee, in effect giving them double the 30 day processing time limit. Or any response to the Ombudsman's call to clarify guidelines without waiting for the legislative changes before the Parliament.

The Canberra Times, obviously privy to the Ombudsman's findings as the complainant in the matter reported as follows on 24 December (no link available):

"The public service watchdog says the Finance Department's decision to delay a Canberra Times request for secret reports on wasteful spending was not supported by the law. The Commonwealth Ombudsman said yesterday he disagreed with the department's interpretation of the Freedom of Information Act, which would have given it twice as long to process requests as the Act allows.

The Act says government agencies must respond to valid FoI applications within 30 days.The Canberra Times alerted then cabinet secretary John Faulkner in May that departments routinely breached the rule by beginning the 30-day count only after they had decided whether to remit the $30 FoI fee, in effect doubling the time in which they could respond.Senator Faulkner asked the Ombudsman to rule on the complaint, which highlighted a Canberra Times request to access secret Finance reports on wasteful spending. Finance argued the law and its guidelines were ambiguous, saying it had taken the commonsense view that each decision on an application should take place in sequence, otherwise it might be forced to decide whether to grant access to documents before it had decided whether to charge for them.

But the Ombudsman, Professor John McMillan, agreed with The Canberra Times that Finance's approach, which many other agencies support, had no basis in law. "[There] is no obvious reason why processing should not commence and be completed on the basis of there being a valid request. There is no way in which the request could somehow become invalid because of any decision that might be made not to remit the fee," he wrote. He urged the Department of the Prime Minister and Cabinet to clarify the guidelines until the Act is amended next year.
The Government tabled legislation last month that, if passed, will remove application fees for FoI requests and reduce processing charges in some cases."

Full post as published by Open and Shut on January 06, 2010 (boomark / email).