The Secretary of the Tasmanian Department of Premier and Cabinet, Rhys Edwards, has claimed that applicants using the Freedom of Information Act (FOI) are entitled only to “information” but not copies of the actual source documents relevant to a request.
At issue are documents relating to Premier David Bartlett’s trip to Sydney in late September 2009 for two media training sessions with PR consultants, Image Media Services and Hawker Britton, and a meeting of the “Premier’s Sydney Leadership dinner” hosted by Ian Knop and Jody Fassina from another PR and lobbying firm, Profile Ray and Berndston. (See What does it cost to polish a premier?)
Records, what records?
In a June 30 letter, the Department’s Freedom of Information (FOI) officer wrote that she had been “advised that there are no records relating to any of the above diary events. The media training and advisory support services involved discussions and hands-on training exercises.”
Accompanying the letter was a summary schedule setting out the “travel costs associated with the trip to Sydney”. While the table listed the costs of both the Image Media Services training and Profile Ray and Berndston’s event, there was no mention at all of the costs of Hawker Britton’s training. At the conclusion of the letter, the department’s FOI officer stated that I had a right to request an internal departmental review of her decision by writing to Mr Rhys Edwards.
So on August 2 I wrote to Mr. Edwards pointing out that in my original request I had specifically sought details of records relating to the Hawker Britton media training but that the table provided by the department contained no details at all on this.
But even if it had, the summary table did not adequately respond to a request for documents related to the three consultancies as I had specifically sought access to records such as correspondence, quotes, invoices and payment records relating to the services of three firms.
As for the suggestion that there were no records relating to the three meeting, it was a little difficult to believe that over $10,00 was spent on the trip without there being any related documentation from emails, other correspondence, briefing notes or invoices. Given that it is not uncommon that FOI officers aren’t fully informed by others in the department of all relevant documents, a fresh search for the records seemed to be warranted.
You want documents and the right to a review?
Edwards was unimpressed with my arguments. The FOI Act, he wrote in response, “does not provide a right of review where all information has been provided.” The right to a review, he argued in his August 17 letter, only applies where a decision has been made that “the applicant is not entitled to information” and where the “provision of information is deferred or refused”.
It was an odd argument given that there had been no response in either his or the original letter from the department’s FOI officer to my specific request about the Hawker Britton training. The lack of response to a request which had been repeated twice seemed to me to constitute a decision not to grant access to the information. It was also a peculiar line of argument since the department’s own FOI officer had informed me that I had the right to seek a review.
As for my request that a fresh search be undertaken for records, Edwards wrote that a further request to the Premier’s Office had been made but that, other than for the discovery of a lonely copy of an invoice from Image Media Services, “there do not appear to be any other information in their records that fall within the scope of your request.”
As for my insistence that what I sought was a copy of the primary source records rather than a summary of them, Edwards was dismissive. “The FOI Act, ” he claimed, “does not entitle you to actual copies of invoices and quotes. The FOI Act is concerned with the provision of ‘information’ and ‘information’ has a broader meaning than records or documents.”
In support of this argument, Edwards referred to Section 7 of the Act which, he claimed, “does not mean that the agency or Minister has any obligation to provide you with copies of all source documents such as the actual payment records, invoices and quotes and it is normal and acceptable for an agency to summarise data and provide information from the source documents in a suitable format”. He also wrote “in my opinion” the summary sheet provided by the department’s FOI officer “complies with the agency’s obligations under the FOI Act”.
An argument with many holes
Edwards’ arguments about the operation of the Freedom of Information Act sit uncomfortably with Premier David Bartlett’s pledge to ensure a greater level of transparency as a way of ‘restoring trust in democracy’. While my initial FOI application was made before the the new Right to Know Act came into effect on July 1, Edwards’ arguments are, in my opinion, a worrying indicator that elements of a culture of secrecy persist at the highest levels of government.
At issue is whether applicants under the legislation are entitled to a copy of the primary source documents or only paraphrased information that an officer of a department chooses to provide. The lack of any explicit response to the request for details of the Hawker Britton consultancy is extraordinary while the suggestion that no records have been retained begs questions about the adequacy of the department’s records management.
While Edwards made much of the emphasis of the wording of Section 7 in providing for a general right to “information”, it was notable that he made no mention at all of the obligations under Section 19 of the Act. For example, subsection 1 of the Act states that “information requested under this Act may be provided (a) by giving the applicant a reasonable opportunity to inspect the record containing the information; or (b) by providing the applicant with a copy of the record containing the information.”
Another subsection, Section 19 (5), also offers little support for Edwards’ claim that applicants aren’t entitled to primary source documents. It states that “if (a) an agency has information requested by an applicant in documentary form; and (b) the applicant has indicated a preference for receiving the information in documentary form – the agency shall provide that information by providing the applicant with a copy of the document or the part of the document containing that information unless it is impracticable to do so.”
Edwards’ claim that applicants are not entitled to primary source documents is also dramatically at odds with how earlier requests from DPAC have been handled. Indeed, just a week before his letter, the department’s FOI officer had responded to a separate request by providing me with a number of records, many of which were specific invoices relating to a consultancy.
So how does the department manage its files? In his letter, Edwards wrote that “it would appear that no records have been retained of the arrangement of the meetings and training. Therefore there is no other information, such as email or correspondence, to release”. By implication, the records had existed but at some point between September 2009 and my request in May 2010 had either been lost or destroyed. Which begs the question of exactly what happened to them and whether this instance is symptomatic of a broader problem. DPAC may not be the biggest Tasmanian government agency, but it is certainly the most powerful and has an important role as a standard setter for ensuring the new Right to Know legislation does indeed result in greater transparency of government decision making.
It remains to be seen whether Rhys Edwards bold bid for a document-free FOI makes any headway and whether the Ombudsman, Simon Allston, can discover whether documents relating to three PR consultancies work for the Premier have indeed gone missing or been destroyed.
Bob Burton is a Hobart-based freelance journalist. He is author of Inside Spin: the dark underbelly of the public relations industry (Allen & Unwin, 2007).
Earlier, and related articles:
David Bartlett’s appointments diary: making time for the makeover merchants
Who gets to meet Premier David Bartlett?
