Advice to ministers can remain secret after FOI law change

Policy advice to Cabinet ministers will no longer be considered for release to members of the public under changes to the Freedom of Information Law passed Friday.

The amended law carves out new exemptions allowing records of opinions, advice and recommendations made to government ministers to be kept under wraps.

The change expands on an existing exemption that applies to deliberations of Cabinet. Deliberations of the National Security Council and advice to the governor and government ministers to formulate policy are also now exempt under the amended legislation.

The changes were criticized by opposition legislator Chris Saunders, who also questioned other aspects of the FOI (Amendment) Bill. Opposition members voted against the legislation, which passed on the strength of votes from the government bench.

Attorney General Sam Bulgin justified the extension of the exemptions to include advice to ministers, saying it was important to protect the integrity of the policymaking process.

He said officials and ministers would “clam up” and be reluctant to speak openly if their considerations and policy recommendations were open to FOI.

He said, “The way that government works is that you ought to be able to have a free and frank exchange of ideas in order that you can make policies. If every shifting impulse is subject to an FOI law, then that will undermine that process. That is the basis on which this has been included and it is as sensible as it is understandable.”

The bill, which largely deals with administrative and “housekeeping” matters to bring the law in line with the Data Protection Law that will come into effect in September 2019, also includes some new exemptions.

It expands the agencies that can be considered as “security and intelligence services” to include the agencies responsible for customs, immigration and prisons, as well as financial and tax information investigatory authorities.

“The effect of this amendment is to provide that the law does not apply to these agencies in effect of strategic or operational intelligence gathering activities,” Mr. Bulgin said.

The new law also allows exempt records, which ordinarily become declassified after 20 years, to remain under wraps if the Ombudsman deems it necessary.

Mr. Saunders and independent legislator Kenneth Bryan raised questions about some of the amendments. Mr. Saunders said it was an important part of the democratic process that the public had access to information to keep legislators in check.

The bill passed for a second reading by 8 votes to 4. It later passed a third reading, meaning it will become law, by 8 votes to 3, with one abstention and 6 absentees.

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