Call to end spies' FOI exemption

AUSTRALIA'S spies could be subject to increased public scrutiny if a top-level review accepts the advice of the Australian government's freedom-of-information watchdog.

Australian Information Commissioner John McMillan has called for Australia's intelligence agencies to no longer be exempted from federal FOI laws.

Professor McMillan and FOI Commissioner James Popple have made the recommendation in a 97-page submission to the review of FOI laws by former Defence Department secretary and diplomat Allan Hawke.

But the secretive intelligence community is unlikely to welcome an FOI spotlight and the Australian Security Intelligence Organisation has quietly wound back public access to historical counter-espionage records available through the National Archives.

All Australian intelligence agencies, including ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate, are exempt from the operation of FOI legislation that allows the public and journalists to seek access to government records.

Professor McMillan and Dr Popple have argued that the long-standing blanket exemption for intelligence agencies is too broad and that ''exemptions applied on a document-by-document basis allow a more nuanced approach to managing appropriate information disclosure''.

''Merit reviews conducted by the [Office of the Australian Information Commissioner] indicate that the full exemption applying to intelligence agencies can have unintended or undesired impacts, obstructing consideration of otherwise reasonable information requests.''

The Information and FOI commissioners argue that such reform would bring Australia into line with the less secretive FOI practices of intelligence agencies in allied countries including New Zealand's Security Intelligence Service, the Central Intelligence Agency and Federal Bureau of Investigation in the United States and Canada's Security Intelligence Service.

Professor McMillan and Dr Popple argue that existing provisions within FOI legislation provide ''appropriate protections for information held by intelligence agencies''.

The proposal to end the intelligence community's FOI exemption is likely to meet strong bureaucratic resistance and may find little favour with the federal Labor government.

When the government's first tranche of FOI reforms was introduced into Parliament in March 2009, then cabinet secretary Senator John Faulkner reaffirmed that the Australian intelligence community would remain exempt from FOI.

''Classified national security information must be protected by the government in the national interest. This is right, it is vital, and it is not going to change,'' Senator Faulkner said.

Since 2008, ASIO has also tightened public access under archives legislation to its historical records, apparently as a consequence of contemporary counter-espionage sensitivities, with information released five or more years ago now being routinely redacted.

For example, information previously released through the National Archives but now determined to be still security classified includes advice from the 1960s by the ASIO director-general, Sir Charles Spry, to prime minister John Gorton that the Australia's embassies in Moscow and Tokyo had been penetrated by Russian intelligence and that 60 per cent of Russian diplomats in Canberra were assessed to be intelligence personnel.

Release of this information, more than 44 years after the event, is now judged to compromise national security.

Dr Hawke is to report the findings of his review to Attorney-General Nicola Roxon by April.

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