news Three major Federal Government departments and agencies have delayed the release of sensitive information relating to controversial technology sector issues under Freedom of Information legislation, citing the need to more closely examine the documents and consult with third parties before the information is released.

In October 24 Delimiter filed three Freedom of Information requests with Federal Government departments and agencies.

The first, filed with the Federal Department of Broadband, Communications and the Digital Economy, seeks any communication between the office of Communications Minister Stephen Conroy and any staff of Telstra or Optus regarding the voluntary Internet filtering scheme supported by the Internet Industry Association and the Australian Federal Police, from the dates of 1 July until 24 October, 2011. This FOI request aims to clarify Conroy’s views on the limited Internet filtering schemes which Telstra and Optus voluntarily implemented in July. The filters only block a list of sites allegedly containing child pornography, and are viewed as a stopgap measure ahead of the planned implementation of Labor’s much more comprehensive filter.

The second FOI request was filed with the Australian Federal Police.

In mid-October, Neil Gaughan, the national manager of the Australian Federal Police’s High-Tech Crime Operations Centre, told a Senate Committee that Telstra’s filter had blocked some 84,000 requests for child pornography material online since it was implemented. This FOI request seeks any email sent or received by Gaughan during the period from 1 July to 24 October this year which refers to statistics provided by Telstra with respect to its implementation of the trial.

The third FOI request targeted the Attorney-General’s Department and sought a wide range of information pertaining to a controversial meeting the department has held behind closed doors with representatives from the ISP and content industries over online copyright infringement, otherwise known as Internet piracy.

The Attorney-General’s Department has already declined to release minutes of the meeting, on the grounds that they do not exist. However, a new FOI request filed by Delimiter seeks a list of all attendees at the meeting, personal notes of any and all attendees at the meeting from any government agency and associated internal government correspondence about the meeting.

All three departments and agencies have acknowledged the requests. However, all three have also extended the deadline for the information to be returned, as they are allowed to do under current legislation. In their communications with Delimiter, all three organisations have been polite and courteous.

“It has come to my attention that I will need to consult with some third parties in relation to the potential release of certain documents,” wrote a senior legal officer of the Attorney-General’s Department in a letter to Delimiter on November 17. “Therefore I will need to consult with these organisations in relation to the potential release of these documents. Under the FOI Act I am entitled to a 30 day extension to conduct this consultation (because it appears that the organisation(s) might reasonably wish to make a contention to the release of this information).”

“Please rest assured that I endeavour to turn this around quickly and obtain the views of the organisations as quickly as possible. Although I do not anticipate taking the full 30 days to consult with these organisations I do think it may take longer than the current due date. I will certainly keep you updated as this progresses.”

An AFP representative issued a similar letter, noting: “Upon consideration of your request, the AFP is of the view that your request will take longer than 30 days to process. The delay is regrettable, however, it will not be possible to advise you of a decision by 23 November 2011 due to the time required to consult with the line area and obtaining the relevant documents.” The AFP sought permission for the delay, which Delimiter assented to.

A representative of Conroy’s Department of Broadband, Communications and the Digital Economy noted in a third letter that no charges would be levied to process the FOI request lodged with it. However, it noted that it would need to consult with third parties concerning the release of documents with information about “their business affairs” — and so a 30 day extension would also apply.

opinion/analysis
In May 2010 the Federal Government passed sweeping reforms to its Freedom of Information legislation with the aim of making it easier for those seeking information from government to obtain that information without excessive costs and problems. Currently, I am attempting to take advantage of those changes to seek information that Delimiter previously could not afford as an independent media outlet without significant financial backing.

So far, there are encouraging signs from the process. Not only have I received moderately speedy replies to my enquiries, but already in one major case, charges for the retrieval of documents have been waived.

However, I am concerned that Federal Government departments and agencies such as the AFP are using the excuse of the inclusion of commercial information in requested documents to delay or perhaps ultimately modify or block the release of those documents. How hard or time-consuming, after all, can it possibly be, to do a quick search of one police force member’s email and deliver what would no doubt be just a handful of documents? How hard could it be, in the case of the Attorney-General’s Department, to release a list of attendees at a meeting?

Not hard at all.

The Freedom of Information reforms enacted by the Gillard Government have unlocked the public sector’s warchest of secrets a little further. But the Federal Government still has a long, long way to go before it could, in any sense, be described as transparent. I’d like to see a bigger effort made here. The Government should not withhold information from the public just because it’s potentially embarassing. If the information concerned was so commercially sensitive, it would probably not have been disclosed to the Government in the first place.

Conroy’s department and his office have generally been reasonably transparent over the time that I have dealt with them as a journalist. However, over the past half-decade, I have found it increasingly difficult to obtain information directly from the AFP or the Attorney-General’s Department about sensitive matters. I would not go so far as to say there is a culture of secrecy at these organisations; there are many reasons for them to be wary when dealing with the press. But at the moment, they definitely need to open the kimono a little further on matters of public interest, in my opinion.

Related posts:

1. IIA requests “streamlined” piracy controls from Govt
2. Blackout: Govt piracy meeting completely censored
3. Interpol filter causes sharp drop in offensive requests
4. Delimiter files FoI requests for Reinecke, NBN Co reports
5. Telstra’s filter has blocked 84,000 requests

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1. Dean
   Posted 22/11/2011 at 2:43 pm | Permalink | Reply

   Keep up the good work! The fact that they’re all delaying implies that there’s at least something there…

   • Renai LeMay
     Posted 22/11/2011 at 2:50 pm | Permalink | Reply

     Cheers! I am not confident that we’ll get anything real back from this process. But I at least want the people concerned with these efforts to know that we’re watching.

   • Glenn
     Posted 22/11/2011 at 3:46 pm | Permalink | Reply

     I was about to say the exact same thing, well done delimiter.

     • Renai LeMay
       Posted 22/11/2011 at 9:14 pm | Permalink | Reply

       Cheers, much appreciated!

2. Brendan
   Posted 22/11/2011 at 4:41 pm | Permalink | Reply

   Delay != smoking gun.

   Enacting a FOI request against multiple government departments will not be an ove-night thing. Assuming there’s something damning automatically is probably a bit fanciful, instead of the more logical, simple cause — unwieldy bureaucracy.

   But, Renai, good to see you “keeping the buggers honest”. :)

   • Renai LeMay
     Posted 22/11/2011 at 9:13 pm | Permalink | Reply

     I agree delay != smoking gun, but when the info being sought could be found with a 10min search of one guy’s email archives … it does make you wonder.

     “”But, Renai, good to see you “keeping the buggers honest”. :)”

     Hehe I try — it’s more entertaining, at least, that way :)

3. billy
   Posted 22/11/2011 at 5:13 pm | Permalink | Reply

   why does a delay mean there is something to hide?

   it could actually mean they have better things to do than pander to requests from jornalists looking to sell stories.

   • None
     Posted 22/11/2011 at 6:44 pm | Permalink | Reply

     Because it invariably does.

     By the way, there’s no “pandering” going on. The government has a legal obligation to supply information when requested.

     • Dessy
       Posted 23/11/2011 at 6:48 am | Permalink | Reply

       “Because it invariably does.”

       Yeah, well argued.

       “By the way, there’s no “pandering” going on. The government has a legal obligation to supply information when requested.”

       Is there a question that the Government has not complied with its legal obligations here? No – They just didn’t provide the information as quickly as the requestor wanted it (which is usually ‘immediately’). Pandering would be putting aside all other tasks and concentrating on getting the information to the requestor as an urgent priority (which, funnily enough, is what most people making FOI requests tend to think their request deserves).

4. Pete
   Posted 22/11/2011 at 6:46 pm | Permalink | Reply

   Renai, it’s worth noting that the people who respond to your FOI requests actually have jobs to do.

   Responding to your request takes time – and for someone who is actually employed for another reason, that time isn’t always available.

   The other thing worth noting is that yes, non government entities release information in confidence to the government all the time, and just because they released it to the government, the government doesn’t have the right to release it to you. How would you feel if I did a FOI request on your tax documentation, which you provided to the government, and they released it to me without asking for your consent?

   • Dean
     Posted 22/11/2011 at 8:03 pm | Permalink | Reply

     Renai, it’s worth noting that the people who respond to your FOI requests actually have jobs to do.

     Yes, and part of that job is responding to FOI requests. They may not like it, and they might wish it wasn’t part of their job, but it is.
     

     How would you feel if I did a FOI request on your tax documentation, which you provided to the government, and they released it to me without asking for your consent?

     Nobody is saying such information should not be removed from documents released. But how could the list of attendees at a meeting be considered commercially confidential? It’s pretty clear that the reason the government doesn’t want this information to be published is not because it’s commercially sensitive, but because it’s potentially embarrassing.

   • Renai LeMay
     Posted 22/11/2011 at 9:11 pm | Permalink | Reply

     “Renai, it’s worth noting that the people who respond to your FOI requests actually have jobs to do.”

     Actually, the people responding to my requests tend to be that department’s FOI officer — in short, it is their job, and almost only their job, to respond to requests like mine. Actually, it’s more than their job. It’s a little something called “the law”. And it’s on my side :)

     • Pete
       Posted 22/11/2011 at 10:15 pm | Permalink | Reply

       I may be wrong in this, but as I understand it, the FOI officer in many cases does not make the decision, they only direct it to the appropriate person – in this case it is likely that the FOI officer does not have clearance, or the ability to view the documents in question.

       As I said, I could be wrong.

       Further – I would like your response to how you would feel if someone placed an FOI request on information you had submitted to the government, and they did not consult you prior to passing that information on to a third party.

       • Renai LeMay
         Posted 22/11/2011 at 10:34 pm | Permalink | Reply

         “I would like your response to how you would feel if someone placed an FOI request on information you had submitted to the government, and they did not consult you prior to passing that information on to a third party.”

         My response to this is:

         1. With respect to privacy, I consider corporations different than individuals. I do not believe corporations have an inherent right to privacy. Sure, there can be commercially sensitive information — but in my experience working in corporations, there isn’t a real stack of it that would lead to commercial disadvantage if disclosed.

         2. I don’t believe it should take more than a day or so to get that corporation’s consent in any case.

         • Dessy
           Posted 23/11/2011 at 6:42 am | Permalink | Reply

           “I do not believe corporations have an inherent right to privacy. Sure, there can be commercially sensitive information — but in my experience working in corporations, there isn’t a real stack of it that would lead to commercial disadvantage if disclosed.”

           Really – you’re kidding right? The private sector shares highly sensitive commercial information with the Government all the time for lobbying and other purposes.

           FOI is a big hassle/ administrative cost for the Govt. Sure, the occasional request uncovers something semi-interesting, but from my experience, FOI is an area dominated by nutjob conspiracy theorists asking stupid time consuming questions that actually end up costing the taxpayer a huge amount of wasted money for all the resources that are spent in administering the FOI Act. Also by journos wanting stuff yesterday, so they can twist information into commercial property. All that said, Australia has one of the most open Governments in the westernised world.

           As for your views on the private sector and secrecy – imagine the FOI Act extend to the private sector – if you think the FOI regime uncovers the occasional public sector mistake; imagine the extent of corruption, deception, deceit and unethical behaviour that goes on in the private sector on a day to day basis.

           ” I don’t believe it should take more than a day or so to get that corporation’s consent in any case.”

           You realise we’re talking about huge companies here,often with bureaucracies that dwarf Government. Also international organisations. There are many layers of clearance. Just because you want to make money out of the information doesn’t mean everyone should rush to get it to you – as long as they stick to the framework of the FOI Act, you’ve nothing to bitch about until the next review of the FOI Act.

           • Renai LeMay
             Posted 23/11/2011 at 9:21 am | Permalink | Reply

             I believe your view of this to be a limited one. I’m not just trying to ‘make money’, as you say — I’m trying to hold powerful figures to account, and bring information to light that both corporations and governments would rather the public not know ;)

             • Pete
               Posted 23/11/2011 at 9:27 am | Permalink | Reply

               What I think would be best Renai, is if you posted copies of the emails/snail mail letters you recieved from the FOI officers/Government departments when a final decision is made.

               Of course, when you do that, make sure you redact the signatures of the people who signed them, as they cannot be released by you, and redact your address details from the top of the letter, in addition to the cost details that are included in the letter. Once you’ve done that, let us know how long it took to do that redacting.

               Further, corporations have private data, and that data is legaly protected, end of story.

               • Renai LeMay
                 Posted 23/11/2011 at 9:58 am | Permalink | Reply

                 I understand corporations have private data. However, it is important to understand that journalists like myself spend their entire lives trying to get corporations and governments to release sensitive information which the public would be highly interested to know.

                 Forgive me for not being on the side of corporate privacy — it’s not my role in society ;) My role is informing and entertaining the public, and keeping the bastards honest.

             • billy
               Posted 23/11/2011 at 9:36 am | Permalink | Reply

               ” I’m not just trying to ‘make money’ ”

               So what you’re saying is, you’d be doing this regardless of whether you have a commercial interest in publishing the outcomes? Is that right?

               • Renai LeMay
                 Posted 23/11/2011 at 9:56 am | Permalink | Reply

                 Yup.

                 • billy
                   Posted 23/11/2011 at 10:00 am | Permalink | Reply

                   wow – a real fricken altruist and defender of the public good. And here I was thinking you were just trying to spin a story to get more hits on your business’s website….I guess I shouldn’t be so cynical.

                   • Renai LeMay
                     Posted 23/11/2011 at 10:08 am | Permalink |

                     Journalists don’t get into journalist to get page impressions — they do it because they believe that their writing can help make the world a better place ;)

                     If I just wanted to get page impressions to the web site I could start posting celebrity galleries with big boobs like the SMH …

                   • PeterA
                     Posted 23/11/2011 at 11:26 am | Permalink |

                     I certainly would have offered up the money for 1 or 2 of these FOI requests if Renai had asked for donations.

                     How hard is it to believe that people give a shit how their country is run when their representatives are behind closed doors?

                   • Dean
                     Posted 23/11/2011 at 2:41 pm | Permalink |

                     @Renai, @PeterA, +1′s all round :-)

5. Robbie
   Posted 22/11/2011 at 9:46 pm | Permalink | Reply

   So the government introduces new laws to make “FOI more transparent and accessible”, but the suggestion is delays = conspiracy?

6. Aryan
   Posted 23/11/2011 at 12:41 am | Permalink | Reply

   You almost restore my faith in journalism, and also demonstrate why independent and critical media is necessary for any democracy to function.

   Thank you for your efforts. They are much appreciated.

7. Baconomy
   Posted 23/11/2011 at 12:59 am | Permalink | Reply

   Well, this is an eye-opener – I never really considered that any individual can file FOI requests beyond their personal information. A brief googling indicates some agencies make it far easier than others.

   Does anybody know of a quick guide anywhere about how to go about it – specifically, what kind of information is accessible to a freedom of information request and what phrasing to use/avoid to maximise your chances?