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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-05-13 Daily Xml
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FREEDOM OF INFORMATION (VICTIMISATION AND INTERFERENCE) AMENDMENT BILL

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (17:06): Obtained leave and introduced a bill for an act to amend the Freedom of Information Act 1991. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (17:07): I move:

That this bill be now read a second time.

I rise today to introduce a bill that I hope takes us back to the original spirit and intent of the freedom of information laws. During my time in parliament, I have been quite familiar with these laws, both as a minister and a shadow minister and now as an Independent watchdog member of the Legislative Council. One issue I was first briefed on when I became a minister was that, with respect to freedom of information laws, I would not be advised on what was happening within my agencies and departments when they were freedom of information requests unless they directly involved my ministerial office.

That advice was given to me by a member who had been a long-standing minister of government, based on the premise and intent of the freedom of information legislation, namely, that it be freedom of information for South Australians, members of parliament and the media. I guess that also kept me on my toes to ensure that my knowledge was as good as possible with respect to what was happening within the agencies and departments for which I had responsibility as minister.

I will not retrace the full history of FOI laws as that will be for other members in their contributions, but I will highlight two significant events. First, the Freedom of Information Act was introduced—and I understand it began in South Australia as a private member's bill (which is another example of such bills becoming law)—by the Hon. Martin Cameron for the Liberal opposition early last decade, and it was then superseded by a government bill led by the Hon. Greg Crafter, who stated that the bill's three major premises were:

1. The individual has a right to know what information is contained in government records about him or herself.

2. A government that is open to public scrutiny is more accountable to the people that elect it.

3. Where people are informed about government policies, they are more likely to become involved in policy-making in government itself.

They are commendable statements from the Hon. Greg Crafter. A significant event in recent history I will refer to is what occurred on 1 January 2005. A policy was promulgated by gazettal on a very quiet media day: 1 January 2005. So, it was gazetted on 1 January 2005, and it was entitled 'Processing FOI applications, FOI process guide general, guideline January 2005, version 9', and it is on the State Records website. These guidelines set forth a whole range of policies and procedures that FOI officers are required to follow.

I highlight to the council that these are government guidelines, not law. It is simply a policy that the government decided to put up, for reasons of which I am suspicious. Even though some FOI officers that my office deals with think that what the government sent through with that gazettal is law, we have had to point out on occasions to these FOI officers that the policy is not law and that they may be in breach of their legal duties under that legislation by following those guidelines and not following the legislation as passed by the parliament of South Australia.

The section of the act through which these guidelines were issued has nothing to do with what those guidelines describe. The section empowering production of such guidelines was only about enabling statistical tracking of FOI requests and compliance. That was the sole intent there, so there was a record of FOI requests and when they were compiled by FOI officers. It was not to enable the government of the day to direct public servants, accredited FOI officers, as to how they answer particular requests for information. That was never the intention of the legislation.

What I find particularly offensive about these guidelines is that they require ministers to be given copies of a member of parliament's FOI request two days before the member of parliament receives the response. These guidelines instruct FOI officers to give the minister all the information about the freedom of information request before the member, the media or a member of the public gets the information, and that is wrong in my opinion, and I hope colleagues will see what I am on about and support these amendments. To quote from page 7 of the guidelines:

When the application is received, it is important to decide if the application is significant and/or sensitive and whether the minister should be notified.

That is a remarkable quote. By sensitive, do they mean embarrassing to the government? Probably. Why on earth is a public servant required to determine whether an application might be sensitive to the minister and the government of the day? That is not the function or the responsibility of an FOI officer to see whether or not information the subject of an FOI request is sensitive to a minister or the government of the day. If it is sensitive information or information that relates to things the government has done wrong, the minister should be on top of it and, if the minister is not on top of it, he or she should cop the flak for that situation or be replaced. We should not put this pressure on to FOI officers. It is not their function at all.

The only provisions of the act referred to as 'sensitive' talk about issues personal to private individuals. That is like their place of address or their health situation. The law does not mean sensitive in terms of explosive or having the potential to embarrass the government. If members look back through the original legislation passed, they will see that that was never the intent of that provision within the Freedom of Information Act. In further reading from page 7 of the guidelines, it states:

Notify your minister's office through your accredited FOI officer immediately if you receive an application from a member of parliament or from the media. If the application is considered to be sensitive in nature, or involves information of a non-personal nature, e.g. budget papers, reports and contracts etc., or if you are aware that a similar application has been made to another agency.

That is unbelievable! It says: notify the minister that there is a problem that could embarrass the government and let the government doctor that information and get it out into the media before the member of parliament, the media or a community member receives the information they have requested.

How does the government justify this guideline? Often, my request made to several departments end up being—and this is interesting, too, nowadays—administered by the Department of the Premier and Cabinet. Why is that? I put in FOI applications to agencies that have no direct responsibility whatsoever to premier and cabinet, yet we find out that the Department of the Premier and Cabinet take control of the FOI application. Off the record, I am aware of two instances where ministers' officers have actually gone to journalists with the content of my own freedom of information requests before I had even sighted the outcome of that request myself. I ask: how did this happen? Paragraph 2.16 on page 15 of the guidelines states:

Where the minister's office has specifically advised that they wish to see the final determination...then determinations in relation to the following kinds of applications should be forwarded to your minister's office—

and I highlight this—

two full working days prior to the determination being released to the applicant...applications made by members of parliament, applications made by the media or all applications that are not about personal affairs, e.g. budget papers, reports, contracts, etc.

I have to hand it to the people who drafted that document for the government, or the people who directed its drafting. It is the work of a very clever government. By using wording in the act like 'sensitive' and 'consultation', they have twisted it to give the government every tip-off it needs before it might be embarrassed. Because of that policy document and the deficits exposed in the Freedom of Information Act by the government's actions, Family First proposes three reforms in this bill.

One reform is that whistleblower protection is to be extended to freedom of information officers by proposed new section 49A in the act, importing the wording and concepts from the Whistleblower Protection Act. An accredited FOI officer should not fear anyone when seeking documents within a department and when releasing documents. There should be no fear of demotion, sacking, loss of promotion opportunities, or any other detriment to a fearless member of the Public Service who releases documents under FOI without concern about the political consequences.

The guidelines that I have mentioned require these same officers to consider, effectively, whether the documents might embarrass the government and tip-off the government accordingly. Strong whistleblower protection in the form of anti-victimisation provisions will ensure that these officers can be fearless in the performance of their important duties to members of parliament, the media and the South Australian community.

The second reform in the bill that I am introducing is proposed new section 49B, which relates to interference with an FOI application. My view—as I was trained and as I applied it in my ministerial career—is that you do not interfere with FOI applications. FOI officers are too polite and possibly scared to admit to me when an FOI is being delayed. That is another thing that I have found lately: more and more delays; not the 28 days stipulated in the act, but delays. Those officers are too polite and possibly scared to admit to me that an FOI is being delayed because the minister has got wind of the application and is concerned about what might come out in the public arena. This is simply not on. The delay of an FOI—or a refusal—ought to be a genuine delay or refusal and not a delay for political purposes.

The other thing I find odd is that several departmental FOI officers have another job. Would you believe that they are also ministerial liaison officers, or are situated within the minister's office? This provision will ensure that that cannot be the case. Clearly, there is a conflict of interest. How can you perform your duties to the letter of the law on freedom of information if you also have a job as a ministerial liaison officer, advising and liaising with the minister? It is a clear conflict for those people.

Those people may be well trained and competent as FOI officers, but they should either cease performing that function, or perform that function alone outside working for the minister. Herein lies one of the shades of grey when staff, for instance, are seconded to a minister's office from a department. This interference provision will ensure that, when it comes to accredited FOI officers, a departmental officer cannot be situated within a minister's office. We need a strong and independent Public Service, not one where FOI functions are tampered with for the expediency of the government of the day.

The third reform is proposed new section 49C, which requires applications to be kept completely confidential. There is no need to tip off anyone, be it a minister, their staff or the media. A government should know what information it holds and should be doing its job. This provision empowers applicants to have greater control over how their application is handled and who takes an interest in what they are seeking.

I will be looking to the opposition to support this bill. I ask my crossbench colleagues to have a good look at this, because it is particularly important for those of us who are in watchdog positions on the cross benches. We will never be in government, but we have a significant and important role to play as watchdog MPs. One of the ways that we can do that is with FOIs. One does not get a lot of information in this council and, certainly, one does not get it in a hurry. FOIs are very important for good democracy.

I note that today the Leader of the Opposition in this council expressed concerns over exactly what I say is happening to me and, I am sure, to other colleagues. I will be very disappointed at the very least if the opposition does not support this bill, because it specifically covers the first question asked in this council today by the Hon. Mr Ridgway.

I conclude by paying a brief tribute to FOI officers. Theirs is actually a thankless job, and I have great respect for all of them. I have found them to be constructive, polite, friendly and understanding in the various freedom of information applications that I have made. Together with my staff, I have at times found when working with them that their job is incredibly difficult. They are compromised because of those guidelines, which are only that: guidelines set up by this government. The guidelines have never before been designed for FOI officers, as I understand it. These guidelines have been set up just to try to circumvent the legislation passed by the parliament. My bill is intended to offer FOI officers the protection they deserve so that they can do their job without fear or favour to the government of the day. I urge members to support the bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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