SA Ombudsman’s damning findings against Environment Department’s ‘contrived’ National Trust eviction secrecy

The Ombudsman has launched a scathing attack on the Environment Department over its “contrived” secrecy – but admits he is powerless to stop it.

The Ombudsman has launched a scathing attack on the operation of the FOI Act.

In an FOI appeal finding, Ombudsman Wayne Lines states the Environment Department had used “contrived”, “tenuous”, and “superfluous” links to a cabinet decision in order to deny public access to documents.

Mr Lines was reviewing a failed FOI application to access documents about the eviction of the National Trust from Ayers House.

He agreed according to the Act the documents had to be kept secret, but in a damning finding, found they had been written, deliberately or by chance, to take advantage of the exemption.

“I observe that throughout the documents, a constant thread has been created by the agency that connects the documents to the Minister’s submission that was formally noted by cabinet,’’ Mr Lines states.

“I consider that the breadth of the exemption contained in clause 1(1)(e), and the success at which the agency has woven a tenuous thread of a cabinet deliberation and decision through its internal discussions in order to attract the confidentiality of cabinet to sit at odds with the underlying principles of the FOI Act.”

The applicant tried to use the Act to access documents explaining why the National Trust was this year to be controversially evicted from Ayers House to make way for government offices.

South Australian Ombudsman Wayne Lines pictured in Adelaide. PIC TAIT SCHMAAL.

The eviction was overturned in April by the incoming Labor government.

The department has defended its decisions, and noted the Ombudsman supported the refusal to release the document.

“As the Ombudsman has found, the department is compliant with the Act,’’ the spokeswoman said.

“The department is committed to transparency and will continue to follow its legislative requirements.”

The FOI application – processed under the Liberal government – was in part rejected when the department identified that 25 documents had information making mention of the cabinet decision.

Mr Lines found he could not reverse the decision because of these “tenuous” links written into them.

Mr Lines was also critical that despite the eviction decision being “heavily publicised”, documents merely noting the decision were able to be kept secret.

National Trust costume curators Sandy Whitelaw, Kelly Pope and Kathryn Taylor outside Ayers House in July last year. Picture: Matt Turner

The clause in the Act in question allows for documents to be kept secret if they include “information concerning any deliberation or decision of cabinet”.

The breadth of the definition of “concerning” is not available as protection by departments in other states.

Mr Lines said the department’s actions were similar to a Commonwealth Ombudsman finding in another case that documents could be “put on a trolley and walked into the cabinet room” to fake exemption.

“I consider that what has occurred in the circumstances of this matter is only slightly removed from what (the trolley reference) suggests is possible,’’ he states.

“I consider that a situation where material entirely superfluous to a cabinet deliberation could be exempt under clause 1(1)(e) simply because disclosure could be said to disclose ‘information concerning’ a cabinet deliberation, however slight and contrived by an agency that may be, is utterly unsatisfactory and at odds with the principles and objects of the FOI Act.”