The Australian Information Commissioner has upheld the draconian secrecy provisions in the APRA Act, at least as they apply to requests under Freedom of Information.
Liam Walsh, a reporter with the Australian Financial Review, applied for documents relating to a prudential review conducted by APRA. The decision does not clarify which prudential review this was, though there are hints this was an insurance case.
APRA refused to provide Walsh with copies of two documents on the basis that it is prohibited from disclosing them under s 56(2) of the Australian Prudential Regulation Authority Act 1998. APRA further claimed the documents were exempt in full under s 38 of the FOI Act.
Walsh set out to test this, maintaining that s 38 of the FOI Act does not apply to the documents and sought an Information Commissioner review on this basis.
The journalist argued s 38 of the FOI Act did not apply because the relevant information is already publicly available, and thus the documents have lost their status as ‘protected documents’ for the purposes of the secrecy provision.
Toni Pirani, special adviser, Freedom of Information decisions at the Commission wrote in her decision: “I have carefully considered the evidence provided by the applicant and examined the documents. I accept that there is some publicly available information relating to the existence and general outcome of the prudential review.
“Without disclosing exempt material, I note that by comparison, the information contained in the documents is very detailed. Additionally, it is apparent on the face of one of the documents that it was clearly identified as a ‘protected document’.
“Although I accept that documents and information may have been made publicly available subsequently, I have been unable to find any evidence of such publication and APRA maintain that the information has not been made publicly available. I am therefore satisfied that the information in the documents is not publicly available.”
Still, the secrecy provisions in the APRA Act stink. These can also be found in the ASIC Act.