As noted in chapter 1, the PBO is an exempt agency under the FOI Act; however,
documents related to PBO requests may be held by departments and other agencies
and may not be protected from release under the FOI Act.
Support for the Bill
The PBO supported the proposed amendments to the FOI Act and informed
the committee that the existing FOI exemption is essential to the PBO's effectiveness
as a source of confidential budget analysis and policy costings for senators
and members. The PBO submitted:
The proposed amendments to the FOI Act extend this logic to
also provide an exemption under the FOI Act for information held by departments
and agencies that relates to a confidential request to the PBO. The PBO is
heavily reliant on other departments and agencies for information to use in its
budget analyses and policy costings.
The PBO also noted that the Memorandum of Understanding between the Parliamentary
Budget Office and the Heads of Commonwealth Bodies in relation to the Provision
of Information and Documents had been finalised and that strict
confidentiality obligations are placed on the heads of Commonwealth bodies in
relation to confidential information requests to the PBO. Confidentiality of
information relating to confidential requests to the PBO is also recognised
under protocols issued for Commonwealth bodies engaging with the PBO.
In a joint submission, The Treasury and the Department of Finance and
Deregulation welcomed the introduction of the Bill and advised the committee
that, in their view, the amendments will ensure the confidentiality of requests
from the PBO and that the integrity of the PBO processes are maintained.
While the Australian Information Commissioner and the Freedom of
Information Commissioner did not express an opinion on whether it is
appropriate as a matter of policy to exempt PBO documents from the FOI Act,
We accept that the exemption from the FOI Act of documents in
the possession of the PBO and PBO-related documents held by other agencies,
rest on the same policy rationale. The Bill does not appear to go further than
necessary to effect that policy intent in the FOI Act...
We accept that the current Bill corrects an unintended
consequence of the narrow scope of the earlier exemption.
The Commissioners noted that the Bill will 'enact provisions similar to
those already in the FOI Act that extend the exemption applying to security
intelligence agencies (such as the Australian Security Intelligence
Organisation) to "intelligence agency documents" held by other
agencies but which originated with ASIO or were received by ASIO'.
The Attorney-General's Department advised:
- the PBO exemption gives additional protection to the PBO and it
is not based on the intelligence agency provisions, which recognise the special
character and sensitivity of intelligence information; and
- the proposed new exemption will only apply to PBO documents held
by agencies that relate to a confidential request made to the PBO and the new
exemption does not apply to other PBO-related documents.
No requirement to confirm or deny the existence of documents
Section 25 of the FOI Act provides the right of an agency, or a
Minister when responding to an FOI request, to neither confirm nor deny the
existence or non-existence of certain documents that would be exempt. Such
rights are currently limited to documents affecting national security, defence
or international relations, law enforcement and the protection of public
The Bill amends section 25 of the FOI Act to extend this right to the new
exemption in proposed section 45A for PBO documents. In her second reading
speech, the Attorney-General stated:
Freedom of Information requests may be made to agencies for
the sole purpose of finding out whether or not the PBO has received a
confidential request in relation to a particular matter. A response from an
agency that documents could not be released because a relevant exemption
applied would in effect confirm the existence of the documents and the fact
that a confidential request had been made to the Parliamentary Budget Office.
Length of the exemption
The length of time for which there will be no legal right of public
access to PBO documents was addressed by the Australian Information
Commissioner and the Freedom of Information Commissioner in their submission.
The Commissioners observed:
In effect, that will be 20 years after a PBO document was
created (the open access period currently set at 28 years is being reduced
progressively to 20 years). This archival open access principle also applies
to other Commonwealth agency documents that are exempt under the FOI Act, but there
is an important difference.
Many other FOI exemptions contain a qualifying phrase or
principle that can result in a document that is initially exempt losing that
status before the archival open access period is reached.
The Commissioners raised the question of whether a time limitation should
be placed on the operation of the PBO exemption from the FOI Act. The
Commissioners went on to note that the Attorney-General in her second reading
speech, indicated that the policy rationale for the PBO exemption is to provide
parliamentarians with access to independent and non-partisan budget analysis
over the entire course of the three-year election cycle.
Based on the linkage of the policy rationale to the election cycle, the
Commissioners therefore suggested that, following the election of a new government,
the rationale for exempting documents from the former government may not be the
same. The Commissioners did not make a formal proposal to change the length of
the exemption, but indicated that the matter may be considered further in the
review of the FOI Act (which has recently been announced by the
In response to this issue, the Attorney-General's Department informed
the committee that the 20-year period is appropriate:
While the Department recognises that the need for
confidentiality for PBO documents and PBO-related documents will reduce over
time, we consider that maintaining the 20 year open access period is
appropriate. While the work of the PBO is directed at financial analysis and
costings it may also be highly controversial and sensitive in nature...Any
reduction in the open access period would undermine the effective operation of
the PBO as senators and members would be reluctant to use its services if they
thought that their confidential requests would be made publicly available
sooner than expected.
The committee acknowledges that the Australian Information Commissioner
and the Freedom of Information Commissioner questioned whether there should be
a time limit on the PBO exemption for the FOI Act, and the committee notes that
this issue may be considered further in the context of the impending FOI Act
review. The committee agrees that it is appropriate for there to be no
requirement to neither confirm nor deny the existence of a PBO document
relating to a confidential request for PBO services by parliamentarians. From
the evidence received, the committee concludes that the amendments will
facilitate the integrity and effectiveness of the PBO and, accordingly, recommends
that the Senate pass the Bill.
In relation to the types of documents that may be the subject of the
proposed new exemption, the committee understands that the test is a 'dominant
purpose' one – that is, the exemption will apply to documents that are prepared
by departments and agencies for the dominant purpose of providing information
to the PBO relating to a confidential request, and that it would not apply to
documents prepared or held in the ordinary course of business by those
departments and agencies (unless another exemption applies). The committee also
understands that the new exemption is modelled on the existing test under the
FOI Act for the exemption of Cabinet documents. In the committee's view,
however, neither of these points has been articulated clearly in the EM to the
Bill (the Cabinet documents 'model' is not mentioned at all). Accordingly, the
committee considers that the EM should be revised and reissued to include a more
comprehensive explanation of the application of the new exemption to documents
held by departments and agencies.
The committee recommends that the Explanatory Memorandum to the Bill be
revised and reissued to explain clearly that the Bill's proposed new exemption:
- applies only to documents prepared by departments and agencies
for the 'dominant purpose' of providing information to the Parliamentary Budget
Office or the Parliamentary Budget Officer relating to a confidential request, and
that it does not apply to documents prepared or held by those departments and
agencies in the ordinary course of their business or activities; and
is modelled on the existing exemption under the Freedom of
Information Act 1982 for Cabinet documents.
Subject to Recommendation 1, the committee recommends that the Senate
pass the Bill.
Senator Trish Crossin
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