news Evidence has emerged that the Federal Attorney-General’s Department may have breached Freedom of Information regulations in delaying the release of documents which will enhance the transparency of its discussions with the telecommunications industry over the controversial National Security Inquiry proposal.
The Federal Attorney-General’s Department is currently promulgating a package of reforms known in total as the ‘National Security Inquiry’ which would see a number of wide-ranging changes made to make it easier for law enforcement and intelligence agencies to monitor what Australians are doing on the Internet. For example, one new power is a data retention protocol which would require ISPs to retain data on their customers’ Internet and telephone activities for up to two years, and changes which would empower agencies to source data on users’ activities on social networking sites.
The data retention and surveillance package has been almost universally opposed by a wide range of political, commercial and special interest groups since it was handed to a parliamentary committee to examine several months ago, with groups as diverse as the Institute of Public Affairs, the Greens, Electronic Frontiers Australia, telcos such as iiNet, the Pirate Party of Australia, Shadow Communications Minister Malcolm Turnbull and Liberal Party backbenchers, Victoria’s Privacy Commissioner and many other segments of the community vehemently opposing the package as a dramatic and unnecessary intervention in Australians’ private lives.
Currently, the only organisations known to support the package include the Attorney-General’s Department, which has been discussing data retention issues internally for at least four years, as well as law enforcement groups such as the Australian Federal Police (AFP) and the Australian Security and Intelligence Organisation (ASIO). Other government departments such as the Australian Taxation Office and the Australian Securities and Investments Commission have also expressed interest in the package.
In an attempt to generate a degree of transparency around the proposals, in late October 2012, Pirate Party Australia secretary Brendan Molloy filed a Freedom of Information request with the department seeking documents pertaining to all consultations held between the AGD and the telecommunications sector during the past several years. It is known that the department has been discussing various aspects of the proposals for several years.
According to an extensive log of the progress of the FoI request posted on transparency site Right to Know, the department wrote back to Molloy in late November, noting that it had gathered the relevant documents but would need to consult with the private sector parties concerned before releasing them to the public.
With this in mind, the department extended the timeframe of its response by 30 days, with the new deadline for it to release the documents being 31 December 2012.
On January 1 2013, with the documents not having been supplied, Molloy wrote back to the deoartment, noting that it was in breach of its deadline. The department subsequently sent an auto-response to Molloy noting that its Freedom of Information division was shut until the new year. “Merry Christmas and Happy New Year!” it added.
The department subsequently sent Molloy an additional email noting that the responsible FoI officer was away and “this information will be passed on to the responsible officer on their return in mid-January 2013”.
Upon receiving this response, Molloy wrote back to the department seeking an internal review of the department’s handling of his FoI request. This step represents the first of two possible steps concerning FoI requests – the next and final step would see a review request filed with the Office of the Australian Information Commissioner.
“The extension period expired on 31 December, 2012 and I am entirely dissatisfied with the boilerplate response sent from the AGD regarding this deadline being missed, as the officer apparently in charge of this request is on leave until 16 January, 2013,” wrote Molloy to the department. “I find the missing of this deadline entirely unacceptable and unwarranted, and would like my request which is now up to its 69th day to be completed as soon as possible.”
The situation – which potentially places the Attorney-General’s Department in breach of FoI regulations – is not the first time the department has been reluctant to release documents under FoI laws.
Late last year, the Pirate Party, which is an activist and political organisation which lobbies to maintain and extend Australians’ digital rights and freedoms, filed a Freedom of Information request with the department, seeking draft national security legislation which had been prepared in 2010 with respect to the current proposal. The draft legislation had been mentioned by the Sydney Morning Herald in an article in August.
However, the Attorney-General’s Department wrote back to the organisation, noting that the request had been denied. Logan Tudor, a legal officer with the department, wrote that he had decided that the draft legislation was exempted from being released because it contained material which was being deliberated on inside the department. “… the release of this material would, in my view, be contrary to the public interest,” Tudor wrote. At the time, the Pirate Party confirmed it would appeal the department’s decision to the Australian Office of the Information Commissioner.
Similarly, in October, Australia’s two major sides of politics combined to block a Senate order moved by the Greens which would have forced the Attorney-General’s Department to produce key documents it is holding regarding advice it had received pertaining to the controversial data retention and surveillance scheme it is pushing.
In two Senate orders he recently put before the parliament, Greens Senator and Communications Spokesperson Scott Ludlam had sought key documents pertaining to the proposal. If they had been successful, the Senate orders would have seen any legal, technical and political advice received by the Government made public and tabled in Parliament, as well as any other relevant information pertaining to the proposed data retention scheme. However, Ludlam said in a statement this afternoon, both Labor and the Coalition voted against the Senate orders.
“It was a perfectly reasonable request made in the interest of open and honest public debate – and the Labor Party and Coalition united to keep this information secret,” said Ludlam at the time. “Today’s vote is a travesty. While the Government believes in the total exposure of private citizens’ correspondence – which is what data retention would mean – it colludes with the Opposition to keep its own plans concealed.”
I am sure that anyone who has filed a FoI request or two with the Attorney-General’s Department over the past few years – and it has been my privilege to file quite a few – will tell you that the department doesn’t like releasing documents under FoI laws and will go to quite extreme lengths to avoid such disclosures. This behaviour with respect to Molloy’s request is nothing new – especially when it comes to the highly secretive data retention/National Security Inquiry proposals, which Australians haven’t even seen any proposed legislation for yet, despite the package affecting our fundamental right to privacy and being almost universally opposed.