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International Law

: Open and Shut

The hat you are wearing may have FOI implications.

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This report by Richard Baker in The Age about an unsuccessful Freedom of Information application to the Reserve Bank of Australia for a report on the legality of multimillion-dollar payments to foreign middlemen used to win currency printing contracts, appears to indicate the RBA is claiming that a document held by an officer of an agency as director of a separate but related entity is not held by the agency , and not subject to FOI.

According to The Age, the 2007 report by Freehills was for the Board of Note Printing Australia, a wholly owned RBA. The company and a sister company Securency, jointly owned by the RBA and a British firm, are both chaired by Assistant RBA Governor Bob Rankin who apparently holds a a copy of the report in that capacity. According to The Age The RBA is refusing to release the Freehills report on the grounds that it is ''not a document of the agency'' and ''not within the RBA's purview to release''.

The odds would appear to be against The Age on this one, but it's an interesting issue.

The term ?document of an agency? is defined by subsection 4(1) of the FOI Act to mean a document ?in the possession of an agency?, whether it was created in the agency or received by the agency from another agency or a source outside the government. Possession is the critical factor.

The RBA response is presumably based on the argument that there is no copy of the report in RBA's records management system, and any copy held by Dr Rankin has not been received in his capacity as an officer of the RBA, but in his separate capacity as a director of the company. The Age of course might argue that he only holds a copy because he is an officer of the RBA which appointed him, as part of his duties, to be a director of the companies. Therefore it is held by him as an officer in the performance of his duties as an officer of the RBA.

Good luck.

Full post as published by Open and Shut on January 20, 2010 (boomark / email).