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Opinions on Ministerial Notifications

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Ministerial decision not to provide documents previously released under the FOI Act

Opinion

The decision by the Minister for Education and Training, the Hon Sue Ellery MLC, not to provide Parliament with 2 documents previously released under the FOI Act was not reasonable and therefore not appropriate, as most of the information in these documents was publicly available.

Background

In Parliament on 13 June 2018, the Hon Martin Aldridge MLC asked Question without Notice 456 to the Minister for Education and Training, requesting 11 documents unredacted and in full, previously released to the Hon Mia Davies MLA under the FOI Act. The Minister declined to provide the documents.

On 18 October 2018, the Minister tabled supplementary information, providing 9 of the 11 requested documents in redacted form. The Minister declined to provide 2 of the 11 documents requested (13A and 17A).

The full transcript of the Parliamentary question and the Minister’s response is in Appendix 1.

On 2 November 2018, the Auditor General received the Minister’s notification of the decision not to provide documents 13A and 17A, in accordance with section 82 of the FM Act.

Key findings

The decision by the Minister not to provide documents 13A and 17A was not reasonable and therefore not appropriate, as most of the information in these documents was publicly available.

The Minister did not seek advice from the Department of Education before responding to the Parliamentary request, but did seek legal advice from the SSO. We wrote to the SSO to obtain a copy of this legal advice, but this was not provided, as in SSO’s view, releasing the information could waive legal professional privilege. However, we were able to obtain other sufficient and appropriate evidence on which to base an opinion.

The Minister’s section 82 notice advised that documents 13A and 17A were not provided to Parliament because they contained factually inaccurate information. During our inquiry, the Minister’s office told us what information in the documents she considered factually inaccurate.

We assessed documents 13A and 17A and found:

  1. the information the Minister considered to be factually inaccurate was less than 10% of the documents
  2. the Minister released documents 13A and 17A, to the Hon Mia Davies MLA, under the FOI Act in 2018. We reviewed the FOI notice of decision, which provided full access to the information in scope of the FOI application. Only information outside the scope of the FOI application was redacted from the documents
  3. the majority of the information in the documents was generally known or easily ascertainable using publicly available sources at the time the Minister declined to provide them. This included information sourced from Ministerial media statements, Hansard, the Department’s Schools Online website and unredacted information in the other 9 documents tabled by the Minister.

During our inquiry, the Minister’s office told us that the Minister was obliged to provide Parliament with factual and accurate information. They directed us to Section 3 of the 2017 Ministerial Code of Conduct and the practice reflected under Section 5.7 of A Guide to Ministerial and Departmental Staff (Parliamentary Guide), which sets out the process for rectifying errors in tabled papers.

In our view, the Minister could have provided documents 13A and 17A to Parliament along with information about the factual inaccuracies.

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