Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

Sean Parnell submission

Email submission from Sean Parnell

28 March 2011

Thank you for the opportunity to provide input to the OAIC's preparation of guidelines for the use of disclosure logs. I provide the following comments, on behalf of The Australian, in response to issues raised in the discussion paper and advise that I am available to make further comments, either in writing or in person, if so required.

 1 - Yes.

2 - Yes. In addition, agencies and ministers should be required to inform applicants and third parties about the intended day and time of release of any documents.

3 - Yes, except in cases where the applicant is a third party and the release of documents was deemed, through the FOI process, to be in the public interest.

4 - None.

5 - N/A.

6 - N/A.

7 - Yes.

8 - Yes. In addition, it should also list the date of the application (to indicate the currency of the documents released, and also the time taken for the agency to finalise the request) and clearly identify the exemptions.

9 - Yes.

10 - See above.

11 - No, additional information should not be provided on the disclosure log. If anything, an agency should be entitled to provide a link to other pages on their site, for media releases or publications, where additional information could be provided. But the disclosure log, by nature, is only concerned with FOI releases.

12 - N/A.

13 - Yes, except in cases of incoming government briefs and similar documents which should perhaps be transferred to the publications section of websites.

14 - Yes.

15 & 16 - See below.

 

I have surveyed various government agencies and found only two, Treasury and the Reserve Bank of Australia, have firm policies on their disclosure logs. In both cases, documents disclosed under FOI are posted on the disclosure log at the same time as they are released to the applicant, without negotiation and often without warning. Other agencies have provided feedback that they are still considering their policies, and while some are motivated by resourcing issues, others appear willing to negotiate a suitable outcome with applicants. It is important to note, however, that just as there is not a uniform policy across government, given the different needs, priorities and capabilities of agencies, journalists who submit FOI applications should not be forced to comply with a strict policy, as they do with Treasury and the RBA, nor see any extension of that policy across government. The OAIC should also be allowed to do its work without agencies adopting their own policies in isolation.

 

FOI is a useful investigative tool for journalists - sometimes coming at great cost - but the 'same day release' policies are clearly intended to dissuade journalists from making any complex or significant applications, given those documents will be made freely available to their competitors. There is no consideration of the medium involve - for example, online journalists can publish or broadcast a report on FOI documents almost immediately, as can radio journalists, and TV journalists can air their report that night. Print journalists - in particular, those who work for weekly or monthly publications - are at a clear disadvantage. I would argue that the best print journalism, internationally, has come after long and detailed investigations, providing clarify and depth of reporting which, in some cases, can influence public behaviour and government policies. The 'same day release' policies, and even the 10 business day rule in the legislation, discourage that type of journalism.

 

The amendments to the FOI Act were designed to increase transparency of government but, when information is power, the failure of the legislation to provide any minimum disclosure timeframe or other considerations has tightened the government's control over the timing of release of documents and therefore the reporting of those documents. The 'same day release' policy enables agencies to release sensitive documents at a time of their choosing, knowing that there will be competition among journalists to report the contents in a timely fashion. Governments are known to release controversial reports and publicise contentious decisions on 'big news days' to lessen the ability of journalists to provide scrutiny or give extended coverage to their readers, viewers and listeners. The FOI Act, and the policies adopted by Treasury and the RBA, condones such behaviour. This cynical interpretation of the government's commitment to transparency will not only dissuade journalists from undertaking in-depth investigations, but encourage misreporting and government 'spin' as journalists rush to report documents before their competitors. Treasury has released documents to The Australian within hours of deadline, and without giving any consideration as to whether the applicant is available to receive the documents they have emailed. The nature of journalism - information is only 'news' if it is new - will not change, but government policies should, otherwise they will serve to undermine FOI and corrupt the process of preparing and handling documents within government.

 

The OAIC, in its guidelines, should stress, above all else, the need for agencies and ministers to negotiate an outcome base on the individual application, both the subject matter and the needs of the applicant. This is not to suggest that any particular applicant should be given preferential treatment, rather to recognise the vastly different circumstances under which FOI applications are made. The legislation itself leaves it open to agencies to decide how and when to apply the disclosure log, but that should be done by negotiation, not in response to resourcing or political considerations. Applicants should be able to dictate, within the deadlines set in the FOI Act, when documents are released to them, and have some certainty over the time they have to report the contents. It is outrageous that an agency that has not proactively released information, and therefore been subject to an FOI application, should then be allowed to take control over what is released (through their decision-making, and ability to make information public before any appeals), when it is released and in what form, thereby controlling the media. The flexibility provided under the Act to whether documents are referenced, or posted, on disclosure logs, and within 10 business days, should be sufficient to ensure all stakeholders are satisfied. As FOI Editor at The Australian, I would prefer to have the full 10 business days to prepare a report, knowing when the documents are likely to be made public or referenced, however Treasury and the RBA have gone to the other extreme with policies which have more negative consequences for government transparency and public information than any journalist taking the time to provide a fair and accurate report. The guidelines need to encourage negotiation and correct the imbalance which has transferred power back to government.

 

If agencies are determined to exercise that power, however, with strict policies which avoid the need for case-by-case negotiation, the OAIC can still recommend a model which would satisfy the media's concerns. For example, there is nothing in the Act to prevent agencies taking a two-step approach - releasing documents to the applicant, referencing that release on the disclosure log within 10 business days (or even the same day), and either releasing the documents at the end of those 10 days or at a specified date thereafter. Effectively, this is no different to an agency using an embargo, non-publication order, or Budget 'lock-up' - all of which have been shown to be effective when there are good reasons for doing so. It allows the applicant to conduct their research and do their preparation for publication or broadcast, while still allowing documents to be released to the broader public to encourage transparency. At present, the government has time to prepare its response, before the public is aware of the pending release of documents, and the applicant and third party should be extended the same courtesy given their involvement in the process.

 

 

Kind regards,

 Sean Parnell

 FOI Editor

The Australian

 

P: + 61 7 3666 7456

F: + 61 7 3666 7499

E:  parnells@theaustralian.com.au