(CMR) There is finally some clarity on the contentious section 20 of the Freedom of Information (FOI) law which previously created a grey area on when the government’s internal discussions are protected from disclosure and when information around those matters should be released to the public.
However, the Office of The Ombudsman in a release on Thursday (May 28) said that two recent decisions have helped clarify section 20.
Section 20 of the law creates an exemption to the general right of access to information to ensure that “the free and frank exchange of views for the purposes of deliberation” is not inhibited.
According to Sandy Hermiston, the free and frank exchange of views exemption is not a blanket protection for anything discussed internally by government.
“The FOI Law clearly recognises the need for public authorities to conduct candid and thorough discussions out of the public eye when necessary, but it does not mean that anything communicated, decided or remotely connected to those discussions can be withheld, ” said Hermiston
Hermiston shared the findings of two separate hearings and how the FOI Law was interpreted to provide further clarity,
In Hearing 76, email conversations occurred between two members of the Civil Service Appeals Commission in preparation for a hearing. The members of the panel were acting in their official capacity and so therefore subject to FOI.
However, the Ombudsman found the disclosure of those deliberative discussions would be likely to harm the frankness of future discussions and upheld the exemption.
In Hearing 77, the requested record showed the decisions of Cabinet regarding granting duty waivers to developers. This record contained no exchanges of viewpoints, only a general statement about the decisions that were made. It is unlikely the release of such a factual record would affect Cabinet’s ability to discuss matters freely in the future, so the record was ordered to be released.
“These two cases illustrate the dual role of FOI and the Ombudsman’s enforcement of it, first to hold government accountable for its actions, decisions and expenditures, and second to protect discussions during deliberations from public release if necessary,” Hermiston.
Differing interpretations of section 20 have often been hotly contested in FOI appeals hearings over the years.