‘In nature’s infinite book of
secrecy
[Further
content of the document related to review rights, complaint rights, contact
details, and a signature block and date].
A little I can read’
Antony
and Cleopatra
Act
One, scene 2
In December 2018, COAG established the Joint Council on Closing
the Gap (link here).
The extract from correspondence from the NIAA is self-explanatory
and relates to the status of a review of the National Indigenous Reform
Agreement (NIRA) established by COAG in 2008.
The correspondence outlines the ostensible reasons for a
decision to withhold release of a copy of the review in accordance with the Freedom
of Information Act 1982. It does however provide a glimmer of insight into the
processes of negotiation currently underway within the Joint Council. I hope to
explore these issues in a subsequent post shortly.
The reliance on the Commonwealth state relations exemption
appears to be incorrect as the review does not appear to fall within section 47B
(b) of the FOI Act (see text below). The other ground of exemption depends on a
balancing of the public interest. The factors listed as being against disclosure
appear farfetched and to my mind tendentious. I invite readers to form their own
opinion.
Taking a more global view, it is little wonder that the
public at large is losing trust in government and politicians when government
is not prepared to deal openly with the strengths and weaknesses of major
strategic public policy frameworks. This is just one example.
[Extract
from Correspondence from NIAA dated 24 October and emailed 28 October 2019]:
OFFICIAL
FOI/NIAA/1920/023/IR
FREEDOM
OF INFORMATION ACT 1982
REQUEST
BY: Michael Dillon
DECISION
BY: Group Manager (name and position redacted)
NOTICE
OF INTERNAL REVIEW DECISION
Dear Mr Dillon,
I refer to your email, dated 26 September 2019, to the
National Indigenous Australians Agency (the NIAA) in which you sought an
Internal Review under section 54 of the Freedom of Information Act 1982 (Cth)
(the FOI Act), of the original access decision (the original decision) provided
to you on 25 September 2019, in which you sought access to the following:
The
most recent communique of the Joint Working Group on Closing the Gap (and which
was recently published on the PMC web site (www.closingthegap.pmc.gov.au/jointcouncil)
included the following text:
"The Joint Council
considered a review of the National Indigenous Reform Agreement (NIRA),
completed by the Partnership Working Group, and agreed to develop a new
National Agreement on Closing the Gap, covering the next ten years, continuing
the NIRA’s successful elements, strengthening others and addressing
foundational areas that were previously excluded from consideration."
In
accordance with the provisions of the FOI Act, I would like to request a copy
of the final version of that review.
Authorised
decision-maker
I am authorised to make this decision in accordance with
arrangements approved by the Agency’s Chief Executive Officer (CEO) under
section 23 of the FOI Act.
Matters
Taken Into Account
In making my decision, I have had regard to the following:
• the FOI request;
• the document relevant to the
FOI request;
• your correspondence of 26
September 2019;
• the FOI Act; and
• the Guidelines issued by the
Australian Information Commissioner under section 93A of the Freedom of Information Act 1982 (FOI Guidelines).
Decision
I have decided to affirm the original decision to refuse
access to the document, in full, on the basis that it contains information that
is exempt under section 47B (Commonwealth-State relations) and section 47C
(deliberative matter) of the FOI Act. The reasons for my decision are set out
below.
Reasons
The requested document is a reflective assessment of the
National Indigenous Reform Agreement (NIRA). The document contains input from
all members of the Joint Council on Closing the Gap (the Joint Council). This
is one of the key documents currently being used by the Joint Council to
develop a new National Agreement on Closing the Gap (National Agreement).
Section
47B of the FOI Act – Commonwealth-State relations
Section 47B of the FOI Act provides that a document is
conditionally exempt if disclosure of the document:
b) would divulge information
or matter communicated in confidence by or on behalf of the Government of a
State or an authority of a State, to the Commonwealth, to an authority of the
Commonwealth or to a person receiving the communication on behalf of the
Commonwealth.
In your submission of 26 September 2019, you queried ‘whether there was a requisite expectation of
confidentiality given all states and the NT as well as up to 40 plus
constituent member organisations of the Peak Council, are all potentially privy
to the contents of the review.’ In addition, you requested ‘further consideration to the issues of
balancing the public interest against the interests of the Joint Council
members in operating in secret, given that the review relates to an overarching
policy framework put in place over ten years ago.’
The Joint Council consists of forty (40) members made up of
representatives from the States and Territory Governments and peak Indigenous
bodies. The requested document contains frank assessments of the success and
failures of the Closing the Gap program, which were provided on the mutual
understanding of confidence to the restricted members of Joint Council. I am
therefore of the view that the requisite expectation of confidentiality is
satisfied as the audience is limited to the Joint Council, being its 40
members.
Accordingly, I consider the requested document to be
conditionally exempt under section 47B of the FOI Act. Where a document is
assessed as conditionally exempt, access must be given subject to the public
interest test detailed in section 11A(5) of the FOI Act.
Public
interest
Section 11A(5) of the FOI Act provides that the requested
document must be disclosed to the applicant unless its disclosure would, on
balance, be contrary to the public interest.
In determining whether disclosure would be contrary to the
public interest, the FOI Act requires a decision-maker to balance the public
interest factors in favour of disclosure against the factors against
disclosure.
Section 11B(4) of the FOI Act sets out the following
factors that the decision-maker must not take into account when deciding
whether access to the document would be contrary to the public interest:
• access to the document could
result in embarrassment to the Commonwealth Government, or cause a loss in
confidence in the Commonwealth Government;
• access to the document could
result in any person misinterpreting or misunderstanding the document;
• the author of the documents
was (or is) of high seniority in the agency to which the request for access to
the document was made; or
• access to the document could
result in confusion or unnecessary debate. I have not taken any of the above
factors into account in making my decision.
My consideration of the public interest in relation to the
application of section 47B of the FOI Act follows.
Factors
favouring disclosure
I have considered the factors set out in section 11B of the
FOI Act that may operate in favour of disclosure and acknowledge that
disclosure of the request document may:
• promote the objects of the
FOI Act;
• would inform a debate on a
matter of public important; and
• promote effective oversight
of public expenditure.
Public
interest factors against disclosure
The factors against disclosure in relation to section 47B,
in my view, are that disclosure:
• would inhibit the interests
of good government and sound public administration;
• would restrict the candour
and utility of future discussions;
• may impair the
Commonwealth’s ability to obtain information for the purposes of assessing the
delivery of Commonwealth programmes, namely all related Closing the Gap
initiatives;
• could reasonably expect to
harm the interests of a group of individuals, namely Aboriginal and Torres
Strait Islander peoples. In particular, release could reasonably be expected to
diminish the NIAA’s ability to manage its ongoing service delivery operations
relating to Closing the Gap initiatives in an effective and efficient manner;
and
• could reasonably expect to
prejudice the management function of the NIAA. In particular, the NIAA’s
ability to manage its functions in meeting the Government’s Closing the Gap
agenda priorities, policies and programmes for Aboriginal and Torres Strait
Islander peoples.
After careful consideration of all relevant factors, I have
decided that the factors against disclosure of the requested document outweigh
those favouring disclosure. I am of the view that disclosure of the request
document would, on balance, be contrary to the public interest at this time.
I am therefore satisfied that the requested document is
conditionally exempt under section 47B of the FOI Act.
Section
47C of the FOI Act – deliberative processes
Section 47C of the FOI Act provides that a document is
conditionally exempt if its disclosure would disclose matter (deliberative
matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken
place, in the course of, or for the purposes of, the deliberative processes
involved in the functions of an agency, a Minister or the Government of the
Commonwealth.
In order to determine whether a document is conditionally
exempt, the FOI Guidelines explain at paragraph 6.58 that:
A
deliberative process involves the exercise of judgement in developing and
making a selection from different options: The action of deliberating, in
common understanding, involves the weighing up or evaluation of the competing
arguments or considerations that may have a bearing upon one's course of
action. In short, the deliberative processes involved in the functions of an
agency are its thinking processes – the processes of reflection, for example,
upon the wisdom and expediency of a proposal, a particular decision or a course
of action.
In your correspondence of 26 September 2019 you contend
that ‘further detailed consideration be given to whether this is in fact a
deliberative comment; to whether factors in favour of release were adequately
identified’.
Upon review of the document, I am satisfied that the
document contains opinions, advice and recommendations provided for the purpose
of consideration of the Joint Council in developing a new National Agreement.
These assessments were provided to the Joint Council in confidence, to assist
in their deliberations on the new National Agreement. The development of the
National Agreement is still ongoing and the premature release of the requested
document would substantially and adversely impact the effectiveness of the
National Agreement and the future success of Closing the Gap initiatives.
I therefore consider the requested document to be
conditionally exempt under section 47C of the FOI Act.
Public
Interest
I have not taken any of the irrelevant factors listed above
into account in making my decision.
Factors
in favour of disclosure
The particular factors in favour of disclosure in this case
are that disclosure would:
• promote the objects of the
FOI Act;
• improve public over sight
and scrutiny of government decision making; and
• promote effective oversight
of public expenditure.
Factors
against disclosure
The factors against disclosure in relation to section 47C
of the FOI Act are, in my view, that disclosure:
• would inhibit the interests
of good government and sound public administration;
• would restrict the candour
and utility of future discussions relating to the ongoing development of the
National Agreement;
• would restrict the candour,
completeness and utility of future advice;
• may impair the
Commonwealth’s ability to obtain information for the purposes of assessing the
delivery of Commonwealth programmes, namely all related Closing the Gap
initiatives;
• would reasonably expect to
prejudice the management functions of the NIAA. In particular, the NIAA’s
ability to manage its functions in meeting the Government’s Closing the Gap
agenda priorities, policies and programmes for Aboriginal and Torres Strait
Islander peoples.
After careful consideration of all relevant public interest
factors I have decided that, on balance, the factors against disclosure
outweigh those favouring disclosure. I am therefore of the view that disclosure
of the requested document would, on balance, be contrary to the public interest
at this time.
I am therefore satisfied that the requested document is
exempt under section 47C of the FOI Act.
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