An Australian government fund has been accused of an unsanctioned obsession with secrecy after refusing multiple Freedom of Information (FOI) requests about a proposed giant coal mine.
Climate Home can reveal at least six FOI requests about the project have been lodged with the Northern Australian Infrastructure Facility (NAIF), which is considering a AU$900 million ($678m) loan to Adani to build a rail line to support its Carmichael coal mine.
The NAIF was launched in mid-2016 as an independent government entity with AU$5bn ($3.8bn) of taxpayer money available as loans to projects to boost the economy in the north of Australia.
Two senior Australian law academics specialising in FOI law have criticised the NAIF’s handling of the FOI requests.
Associate professor Rick Snell, deputy dean of the University of Tasmania law school, told Climate Home: “What you have got here is a public organisation that’s got an excessive obsession about secrecy that’s not supported by the FOI Act.”
Snell said the FOI Act, which is designed to allow the public to scrutinise the functions of the government, enabled some organisations to request a blanket exemption from the act itself, but the NAIF had not done this.
“This is an entity that has not been exempted from the FOI Act in any way, which the parliament has not empowered in any way to have any greater degree of confidentiality than any other on the public books.
“Yet it has effectively tried to position itself as being the most secret organisation, equivalent to something like Asio [Australia’s national intelligence organisation] – Asio has been exempted from the FOI Act, but the NAIF has not,” said Snell.
He added he had “never come across a government agency” that had such an approach to secrecy.
A NAIF spokesperson told Climate Home it was responding to all FOI requests in accordance with the law. In total, nine FOI requests had been received in connection with the Adani project.
In a statement, resource minister Matthew Canavan said he was “confident in the independent process to allow the NAIF to assess and respond to FOI requests as required under the legislation.”
Climate Home, one of the organisations to have an application refused, used the FOI Act to request documents that would constitute an application to the NAIF from Adani.
India-based Adani, which wants to mine 60m tonnes of coal a year from its Carmichael mine in Queensland, has a complex corporate structure with ownerships of some entities routed through a company registered in the Cayman Islands, a tax haven.
Climate Home wanted to know which specific Adani entity had applied to the NAIF.
But an eight-page “statement of reasons” letter sent to Climate Home, signed by NAIF chief of staff Carol Belletinni, said: “NAIF would only have documents relevant to your request if Adani had applied for financial assistance from NAIF.
“To confirm that fact (if it were a fact) would reveal information communicated in confidence and make this statement of reasons letter itself a document the disclosure of which would found an action in breach of confidence.”
The NAIF held this position despite both Canavan and Adani representatives discussing publicly since late 2016 that the fund was considering an application from Adani.
The NAIF spokesperson later told Climate Home that disclosing the name of a loan applicant before an investment decision had been made “would not be consistent with either best practice governance or Australian best practice corporate governance.”
“Nor do we regard it as in the best interest of the public given that NAIF has confidentiality obligations and also needs to retain its ability to negotiate finance terms in confidence.”
The spokesperson said while the NAIF had acknowledged during a Senate hearing that Adani had “expressed an interest in accessing the facility… any disclosure beyond that comment is regarded as commercial in confidence.”
Adani and its potential financial backers are facing a campaign by climate groups concerned about the impact of the mined coal on global greenhouse gas emissions and the Great Barrier Reef.
Climate Home has reviewed five other FOI requests put to the NAIF from other groups. Greenpeace submitted two, campaign groups Market Forces and the Australian Youth Climate Coalition (AYCC) also submitted a request, as did the think tank The Australia Institute.
Market Forces asked for copies of assessments carried out in relation to the Adani project, but was also told by NAIF it could not confirm if it had any documents in its possession.
Julien Vincent, executive director of Market Forces, said: “The NAIF’s handling of our FOI request reflected contempt towards not only the request, but the FOI Act itself.
“To think they can refuse to provide any information at all about not only whether documents related to my request existed, or didn’t exist, under cover from commercial confidentiality is a precedent so dangerous that if the NAIF gets away with it, this principle could easily be applied to any other person seeking to obtain information through FOI. The fact that this is an agency entrusted with up to $5 billion of public money makes it even more outrageous.”
Greenpeace made two FOI applications to NAIF.
One asked for any conflict of interest declarations from NAIF board members and while some information was released, Greenpeace said it had been refused access to the minutes of meetings to see if directors had excused themselves from any negotiations.
A second application asked for the dates and locations of NAIF board meetings. This request was turned down because, according to a letter sent from NAIF to Greenpeace and seen by Climate Home, it could increase interest from the media and other groups that would take up the time of NAIF officers. The letter also raised the possibility that disclosing meeting times could attract protests.
Professor Moira Paterson, of Monash University’s faculty of law and author of a book on FOI and privacy in Australia, told Climate Home she found it “hard to believe that there are legitimate grounds for refusing access to dates of board meetings.”
Paterson said it was not unusual for government agencies dealing with tenders or contracts to withhold some details, but it was “somewhat extraordinary” that NAIF extended this confidentiality to the point where even the existence of an application was kept secret.
Paterson added that a section of the FOI Act used by NAIF to refuse access to some documents was problematic. Section 45 allows documents to be exempt if releasing them would constitute a breach of confidence.
Paterson said that section of the act did not give any scope to weigh the public interest of releasing documents against commercial confidentiality.
She said: “I have long argued that this provision should be subject to a public interest test.”
In many of its clauses, the FOI Act requires government bodies to balance the public interest in openness with commercial and diplomatic considerations.
Snell, who reviewed Climate Home’s FOI request and Greenpeace’s request for meeting dates, said: “[The NAIF] devote a significant, if not excessive, amount of time to justifying not releasing anything at all. There’s nothing supporting them in that blanket approach, either in the FOI Act or their own legislation.”
— Chris Mooney (@chriscmooney) April 9, 2017
The Australia Institute, a think tank that has consistently argued against the Adani mine, has also been refused documents by NAIF under the FOI Act.
The institute asked for “policies, procedures or guidelines” used by the NAIF to help it decide if applications should proceed through its various stages.
While the institute was told these policies did exist in draft form, the documents were not released.
In a briefing document, the institute said: “It is unclear how disclosing how NAIF makes its decisions would provide undue advantage or interference with those decisions.”
The AYCC, a campaign group also against the mine’s development, asked for documents and correspondence relating to the mine.
The NAIF refused to say if those documents existed or not, again citing confidentiality.
A request for the minutes of a meeting were also refused because they were “not finalised”, and so there were no documents to release.
The AYCC, Market Forces and Greenpeace have all asked the Office of the Australian Information Commissioner to review their FOI requests.
Greenpeace climate and energy campaigner Nikola Casule told Climate Home: “The refusal of the NAIF to respond to FOI requests is deeply troubling.
“This board is holding $5 billion of taxpayers’ money to ransom and are dodging any attempts at outside oversight and accountability.”
“Former treasurer Wayne Swan has even gone as far as to label the fund as dodgy as the disgraced Lehman Brothers and every time they refuse outside scrutiny they prove his statement true.”