Independent News For The Australian Public Service
Edition Number 396. Updated Tuesday, 11 February 2014

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FoI 'should apply to Intelligence'

Intelligence Agencies should to be subject to freedom of information laws, Information

Commissioner, John McMillan (pictured) says.
 He expressed concern about “mixed messages” on open Government and transparency from the Federal Government.
 In an interview with the Guardian Australia newspaper, Professor John McMillan said Intelligence Agencies should be subject to freedom of information (FoI) legislation.
 “I think the FoI Act can suitably apply to any Agencies, Parliamentary Departments and the Intelligence Agencies,” Professor McMillan said.
 “The exemptions are adequate to protect whatever has to be protected.”
 Currently, the Australian Security Intelligence Organisation, Australian Secret Intelligence Service and the Australian Signals Directorate are all totally exempt from FoI laws.
 In the United States, the Central Intelligence Agency and National Security Agency are both subject to FoI laws.
 However, Professor McMillan said he was not confident changes would be made to freedom of information laws.
 “I’m also realistic and do not put a lot of time into arguing that case because I think it unlikely in the near future that there’s going to be any change,” he said.

Information Commissionerís view
 He said the Inspector General of Intelligence and Security was an effective oversight for Intelligence Agencies.
 Professor McMillan also expressed his disappointment that both Houses of Parliament were now exempt from FoI laws, after moves by both major parties to block access to documents in May last year.
 “I see a lot of mixed signs and I hear a lot of mixed messages. I’ve no doubt that the 2010 reforms, in combination with the open data revolution, have substantially improved open Government in Australia,” he said.
 "But I was disappointed that the Parliament amended the Act to exclude the Parliamentary Departments before the Hawke report.”
 He said his concern was that if the middle ranks of Agencies get conflicting messages there would not be a strong commitment to open Government.
 Professor McMillan said resources given to his office were not enough to deal with the increased caseload of freedom of information work, which meant Agencies could be “gaming the system”.
 “It now takes close to 200 days to allocate an application for Information Commissioner review,” he said.
 “I’m not going to name individual cases, but I have a great concern that Agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue.”
 Professor McMillan said he had prioritised a number of review applications for incoming Government briefs. Many Government Agencies had blocked access to the briefs since the Coalition took office last year, at odds with the practice in previous years.
 “We’ve got all these cases about incoming Government briefs at the moment. It took me two years to decide the last incoming brief case. I’m committed to getting it decided a lot earlier, and they’ve been moved to the front of the queue,” he said.

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