21 March 2012
The Open Government Partnership with more than 50 countries adopting the principles set out in the 2011 Open Government Declaration seems to be gaining momentum. There is regular activity on the OGP website with several daily posts of international events related to country commitments. Recent Updates focus on the conference next month when the foundation eight member states will be formally joined by 42 countries making their commitments to the Declaration.
Australia and New Zealand both remain aloof from the OGP. In what continues to be a surprising silence in both countries, no official statements have been made about the international Open Government movement although Ministers in both Australia and New Zealand speak enthusiastically about the value of open and accessible government.
An explanation may be reflected in a post on Open and Shut, and Australian blog about the freedom of information. The 15 March post was about the Trans Pacific Partnership and the unprecedented levels of secrecy which surround United States – Australia negotiations and indeed all parties’ negotiations. An American official is quoted as saying it is the least transparent trade negotiation he has ever seen. The blog reports that attempts to get information about any tentative agreements are unsuccessful. A concern is the confidentiality agreement, about which New Zealand is reported to be “the organiser in chief” which will preclude disclosures for the first four years of the agreement. The agreement included on that site is as follows:
  • “First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations.
  • “Second, while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process). The participants may also store these documents in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. Each participant can also create and store these documents on unclassified computer systems.
  • ‘Lastly, the participants will mark the documents they create in a manner that makes clear that the documents will be held in confidence.The policy underlying this approach is to maintain the confidentiality of documents, while at the same time allowing the participants to develop their negotiating positions and communicate internally and with each other. We look forward to your confirmation that you agree with this approach.”
The Official Information Act would appear to exclude the material referred to in this confidentiality agreement. Section 6(e)(vi) expressly protects the premature disclosure of information relating to entering into overseas trade agreements.
As both Australia and New Zealand seem to be enthusiastically courting the US with the aspiration of bedding down the Trans Pacific Partnership, assuming some sort of cooperative silence about the OGP may not be far off the mark. But how does that then square with the US being one of the eight originating OGP member states, and providing strong encouragement to others to make the commitment?