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Friday, February 12, 2016

No sign of the siege lifting

Attorney General Brandis told Senate Estimates this week that the government position on the future of the Office of Australian Information Commissioner has not changed. As Senator Brandis recounted the government announced in May 2014 that the office would be abolished; it has been made clear the Senate would not pass the bill to achieve this outcome; the governmernt has not brought the bill  (on the Senate Bills list since October 2014) on for a vote; the FOI functions of the office were allocated $1.7 million this financial year. As to where to from here:
"The circumstances are that the government has an intention, which it has declared, for reasons which it has explained, but that intention cannot be given effect to. So the arrangements continue as they are for the time being."
 The transcript for the hearing is at pages 44-49 in the Hansard.

When Senator Collins asked how this squared with the decision to join the Open Government Partnership and an accompanying announcement that the 'government is committed to openness as a basic principle of modern government,' Acting Australian Information Commissioner Pilgrim responded
My understanding is that the bill is still before the Senate or on the list and that is the status at the moment.
Senator JACINTA COLLINS: So if the next budget does not include further funding then you will be without funds?
Mr Pilgrim: That would be true. If there is no funding for the FOI function then we would not be able to undertake it.
Senator Brandis told the committee "that as an economy measure the office would be abolished and its functions consolidated."

The Siege of Leningrad lasted two and a half years. How long will this siege last?

Wednesday, February 10, 2016

OECD: Political donation rules must be part of overall integrity framework

Ross Gittins in the Sydney Morning Herald writes about a new report published by the Organisation for Economic Co-operation and Development Financing Democracy: Funding of political parties and election campaigns and the risk of policy capture, and goes on to highlight weaknesses in Federal Government rules,
... our electoral commission..reported on political donations only last week. The donations it informed us of had been made up to 19 months earlier. Even so, the figures may not be complete. There is little penalty for late disclosure.
Parties are not required to disclose donations under $12,800, and buying a seat at a dinner table with a minister is not classed as a donation.
The OECD report says public reporting of donations should be timely, reliable, accessible and digitally searchable. Why? To make it easier for civil society groups and the media to be effective watchdogs.
Perhaps that's why we don't do it."
Main Findings of the report:
  • Finance is a necessary component of the democratic processes.
  • Money enables the expression of political support. 
  • It enables competition in elections.
  • However, money may be a means for powerful narrow interests to exercise undue influence e.g. newly elected officials maybe pressured to "return the favour" to corporations.
  • Infrastructure and urban planning are particularly vulnerable to the risk of policy capture.
  • Consequences include inadequate policies that go against the public interest.

Loopholes in existing regulations

  • Current funding rules need attention to ensure a level playing field for all democratic actors.
  • Loans, membership fees and third-party funding can 'go-around' current spending limits.
  • Countries are struggling to define and regulate third-party campaigning (charities, faith groups, individuals or private firms).
  • While many countries have adopted online technologies to support proactive disclosure.
  • There is a need for more efficient and independent oversight and enforcement.

Political finance regulation as part of an overall integrity framework

  • Political finance regulations are ineffective in isolation.
  • They need to be part of an overall integrity framework that includes the management of conflict of interest and lobbying.
  • Fewer than half of OECD countries have set or tightened lobbying standards.

globalisation is complicating the regulation of political party funding as multinational companies and wealthy foreign individuals are increasingly integrated with domestic business interests. Where limits and bans on foreign and corporate funding exist, disclosure of donor identity is a vital deterrent to misuse of influence. While 17 of the 34 OECD countries ban anonymous donations to political parties, 13 only ban them above certain thresholds and four allow them. Even when donations are not anonymous, countries have differing rules about disclosing donor identity. In nine OECD countries political parties are obliged to publically disclose the identity of donors, while in the other 25 OECD countries parties do so on an ad-hoc basis. 
Only 16 OECD countries have campaign spending limits for both parties and candidates. While such limits can prevent a spending race, challengers who generally need more funds to unseat an incumbent may be at a disadvantage in the other 18 countries. Finally, a lack of independence or legal authority among some oversight institutions leaves big donors able to receive favours such as tax breaks, state subsidies, preferential access to public loans and procurement contracts.
- See more at: http://www.ftseglobalmarkets.com/news/oecd-report-tries-to-de-toxify-funding-of-political-parties-and-elections.html#sthash.3s6k1qLp.dpuf

globalisation is complicating the regulation of political party funding as multinational companies and wealthy foreign individuals are increasingly integrated with domestic business interests. Where limits and bans on foreign and corporate funding exist, disclosure of donor identity is a vital deterrent to misuse of influence. While 17 of the 34 OECD countries ban anonymous donations to political parties, 13 only ban them above certain thresholds and four allow them. Even when donations are not anonymous, countries have differing rules about disclosing donor identity. In nine OECD countries political parties are obliged to publically disclose the identity of donors, while in the other 25 OECD countries parties do so on an ad-hoc basis. 
Only 16 OECD countries have campaign spending limits for both parties and candidates. While such limits can prevent a spending race, challengers who generally need more funds to unseat an incumbent may be at a disadvantage in the other 18 countries. Finally, a lack of independence or legal authority among some oversight institutions leaves big donors able to receive favours such as tax breaks, state subsidies, preferential access to public loans and procurement contracts.
- See more at: http://www.ftseglobalmarkets.com/news/oecd-report-tries-to-de-toxify-funding-of-political-parties-and-elections.html#sthash.3s6k1qLp.dpuf
globalisation is complicating the regulation of political party funding as multinational companies and wealthy foreign individuals are increasingly integrated with domestic business interests. Where limits and bans on foreign and corporate funding exist, disclosure of donor identity is a vital deterrent to misuse of influence. While 17 of the 34 OECD countries ban anonymous donations to political parties, 13 only ban them above certain thresholds and four allow them. Even when donations are not anonymous, countries have differing rules about disclosing donor identity. In nine OECD countries political parties are obliged to publically disclose the identity of donors, while in the other 25 OECD countries parties do so on an ad-hoc basis. 
Only 16 OECD countries have campaign spending limits for both parties and candidates. While such limits can prevent a spending race, challengers who generally need more funds to unseat an incumbent may be at a disadvantage in the other 18 countries. Finally, a lack of independence or legal authority among some oversight institutions leaves big donors able to receive favours such as tax breaks, state subsidies, preferential access to public loans and procurement contracts.
- See more at: http://www.ftseglobalmarkets.com/news/oecd-report-tries-to-de-toxify-funding-of-political-parties-and-elections.html#sthash.3s6k1qLp.dpuf

Tuesday, February 02, 2016

What's holding back political donation law reform and full transparency?

A selection of editorial opinion follows.

Contrast these sentiments with the absence of any sign of interest in reform from the Federal Government and the observation by Gary Gray, Shadow Special Minister of State on Sunday in conversation with Jonathon Green on Radio National that Australia has the best system of disclosures in the world. 

Yes, truly.

Crikey Editorial 1 February
Every year we go through the same shabby ritual: up to 19 months after some of them have been made, we finally learn who is trying to curry favour with our political parties with donations.

Or rather, we learn about some of the donors. Courtesy of donation disclosure laws that are a relic of the Howard era, parties and donors are not required to disclose donations of under $13,000 (although to its credit the ALP has consistently reported all donations over $1000, as the Greens now do as well). Moreover, there are huge loopholes in the definition of donations. For example, “purchasing” a good or service from a political party, such as a seat at a dinner table with a minister, is not considered a donation.

The entire reporting system is woefully out of date. We should have online, near-real time reporting of donations by federal, state and territory branches of political parties. Instead, we are required to wait until February 2016 to find out who was donating to politicians as long ago as July 2014.

Most of all, there is little penalty for late disclosure. Political parties routinely get away with declaring hundreds of thousands of dollars in donations years later, long after anyone has stopped scrutinising them. Bill Shorten's convenient failure to declare an in-kind donation from a company to his 2007 election campaign is just the tip of the iceberg.

Every year, Crikey makes the same editorial call: our analog-era joke of a disclosure regime needs to be overhauled. But there is little political will within the major parties for greater transparency. The last politician to seriously attempt reform was John Faulkner under Kevin Rudd. To its shame, the Coalition thwarted his efforts. Since then, both sides have treated voters with contempt.


SMH Editorial 2 February
As the Herald has argued many times, Australia needs to stop the gaming of Upper House election preferences, apply stricter limits to political funding and demand full transparency, including continuous real-time disclosure of donations...
...the source of most Liberal funding from big business and wealthy donors remains secret due to outdated rules and the $13,000 federal disclosure threshold. Labor donations as small as $1000 are mostly disclosed but remain entwined in union coffers....
Federal Treasurer Scott Morrison labelled as "very shabby" the donations from Palmer interests. The Liberal heavyweight  warned voters that if something in politics looked too good to be true it probably was. But Labor and the Coalition have repeatedly derailed attempts to fix the system.
To his credit, NSW Premier Mike Baird has toughened the state electoral funding laws and is rightly pushing for reforms across other state and the federal jurisdiction. The Herald has argued for lower limits on political donations from individuals and organisations; the continuous real-time reporting at which Mr Baird has baulked, limiting it instead to six months before an election; a ban on associated entities; and clear definitions about where the money comes from and goes. Extra options include a ban on political donations from foreign sources, spending caps for parties and third-party supporters, and more public funding to reduce reliance on donors.
Voters should demand change from the major parties and support reformers who reject the current sordid arrangements. The likes of senators John Madigan, Nick Xenophon and the Greens have proposed new rules for donations and Upper House elections. Some in Labor, including former minister of state John Faulkner, proposed changes to donations rules only to have them kyboshed.

Those who argue, in the face of all evidence, that Australia's political donations disclosure laws are robust are fooling themselves and voters. That goes for every level of government – federal, state and local council – and every political party and opportunist that feeds off this woeful regime.
The arrangements for disclosing political donations are disjointed, varying from one jurisdiction to another. The delays in publishing donation details are so lengthy that the whole process becomes almost pointless. And the threshold for disclosing donations ($12,800 in 2014-15) is too high, leaving the system vulnerable to exploitation.
Why does this matter? Because the transparent and timely disclosure of political donations helps to inform voters about the sources of potential influence on a government. It is intended to allay the risk of undue, secret or corrupting influences by exposing who is behind campaigns. It helps to preserve and protect the integrity of the electoral process, and is a form of insurance on government decisions.....
The Age has said for decades that the existing system is flawed. So, too, have commissions of inquiry, joint parliamentary committees at both federal and state levels. At the federal level, the Coalition has repeatedly opposed or sought to weaken proposed disclosure reforms. In Victoria, there has been no sign the Andrews government plans any change.
All parties are dragging their feet on reform, leaving voters with a lame system that is open to rorting. What is needed is a first-class, uniform and transparent electoral disclosure regime, one that includes online access to donations in local council elections and which has rigorous requirements to ensure full disclosures by the umbrella foundations and other cloaked organisations favoured by the major political parties.
Importantly, publication must be timely. The current laws do not require donors to submit returns until 20 weeks after the close of the financial year. There is no sensible reason for this lax deadline. The 2014-15 returns for political parties were published yesterday, meaning some of the information was more than 18 months old. The technology exists for real-time (or near-enough) lodgement and disclosure. The law must be changed to speed this up.
It is time to stop ducking and weaving on this important integrity issue. Politicians and parties that refuse to support reforms towards transparency, efficient and timely disclosure must be condemned.

Crikey Editorial 2 February:
The Coalition’s long war on transparency continues in the government’s childish games with an allegedly sensitive confidential volume of the trade union royal commission report.

The government has had three separate positions on the volume: first it was to remain confidential on the basis that royal commissioner (and would-be Liberal Party speech maker) Dyson Heydon claimed (without providing any evidence) that releasing it might place royal commission witnesses in danger. When crossbench senators whose votes are necessary for the government to pass its anti-CFMEU bill re-establishing the Australian Building and Construction Commission demanded access, the government changed its mind and offered access to a redacted version of the report. Yesterday it changed its position again and offered access to a single representative of the Greens and Labor as well -- an offer that has correctly been declined on the basis of arrant silliness.

Since its election in 2013, the Coalition has consistently tried to curb transparency. Entire areas of government operations have been ruled beyond the scope of parliamentary scrutiny. Ministers have misled Parliament with impunity. The public service has been encouraged to treat freedom of information laws with contempt. Whistleblowers have been pursued and journalists threatened with jail.

It was to be hoped that Malcolm Turnbull, a man who made his legal reputation on one of the signal moments of transparency in Australian law, the Spycatcher case, would bring a change from the Abbott government’s deep-seated loathing of transparency. So far, the signs are that we’re in for more of the same.



Thursday, January 28, 2016

Tl Australia urges inclusion of anti-corruption measures in OGP National Action Plan

"Transparency International Australia is calling on the Australian government to address critical deficiencies in Australia’s anti-corruption laws, as the country falls further on the international Corruption Perceptions Index (CPI) for the third year in a row.
 Today it was revealed that world-wide perceptions of the level of corruption in Australia’s government sector continue to worsen, with Australia’s CPI score falling to 79, down from 85 in 2012, 81 in 2013 and 80 in 2014.
Australia is now ranked 13th out of the 168 countries included in the Index – down six positions since 2012, and joining countries like Libya, Brazil, Spain and Turkey as big decliners over that period.

The annual Index compiled by Transparency International uses 12 surveys of expert assessment and views of business people globally. The highest ranked country is Denmark with a score of 91.

TI Australia’s incoming chairman The Hon. Anthony Whealy QC described the continued slide as “the result of inaction from successive governments who have failed to address weaknesses in Australia’s laws and legal processes.

“The delay in responding to these issues has now made reform critical and a commitment to ramp up efforts to tackle foreign bribery, which has particularly impacted perceptions of Australia, is now urgent.”

As a priority action, Mr Whealy and new TI Australia CEO, Phil Newman, are calling on the Australian Government to commit to enacting long overdue reforms to Australia’s foreign bribery laws before the end of 2016, as a crucial indicator of the country’s seriousness in fighting corruption.

“With Australia’s worst foreign bribery offences having been committed by former or current government-owned entities – the Australian Wheat Board, Note Printing Australia and Securency Limited – there is no excuse not to have implemented all of the OECD’s reform recommendations in this area by the end of the year,” Mr Newman said.

“TI Australia welcomes the Turnbull Government’s move to develop a national Open Government action plan in 2016, and looks forward to working with it on the many issues that must be addressed if we are to improve our corruption perception score and regain leadership on anti-corruption.”

Other key actions identified by TI Australia for arresting the slide in Australia’s global position include:
  • A stronger, broad-based federal anti-corruption agency
  • Reformed, more consistent anti-corruption and political finance regimes across Australia’s State, Territory and Federal governments
  • Strengthening Australia’s anti-money laundering regime and enforcement to ensure public regulators, and key industries like finance and real estate, are not compromised by the flow of dirty money from overseas.
“TI Australia stands ready to work alongside the government and other organisations to improve our anti-corruption measures and uphold Australia’s commitments in this area internationally,” Mr Whealy concluded.

The full Corruption Perceptions Index ranking and regional tables can be found at: www.transparency.org/cpi
..................................................................................

If you are interested in the Open Government action plan, see the Department of Prime Minister and Cabinet materials.
 
And get involved with the Australian Open Government Partnership Network, an independent coalition of individuals and organisations like TI Australia, formed for the purpose of engaging with government in this process.

Thursday, January 21, 2016

Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:
"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.
Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
 
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.
"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.
Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009
Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:

Monday, January 18, 2016

Contrary to the Attorney General's view, who ministers meet and why should be no state secret

The third of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 found the the Office of the Attorney General got it wrong in refusing to process a Freedom of Information application for the AG's appointments diary.
 
 Of course the office involved isn't just any ministerial office. 

It's the office of the minister with overall responsibility for administration of the Freedom of Information Act. And the Attorney General has plans before Parliament that if passed would see him play a bigger role in guiding other ministers, agencies and the tribunal on interpretation and application of the act.

The Attorney General's initial and so far as I have seen only response to the decision is that he opposes release of ministerial diaries as a matter of principle:
"Let's be clear that the principle that I was upholding is the same principle Mr Dreyfus when he was a minister in the previous labor government himself upheld. That is as a general rule minister's diaries ought not to be the subject of FOI Legislation. That was a principle that was invoked by Mr Rudd when he was Prime Minister and by Ms Gillard when she was Prime Minister."
That principle wasn't argued in the Dreyfus case. 

Or argued in the two cases in previous governments the Attorney General may have had in mind, Fletcher and Davies

If a class of documents such as 'ministers' diaries' are to be excluded from FOI, that's a matter for parliament not the courts or tribunal.

Justice Jagot in her decision noted a quite different principle: the "significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General."[77].

In Davies, then Australian Information Commissioner Professor McMillan in the course of finding that there was a 'practical refusal reason' to refuse to process the application, referred to the public interest in disclosure and the practice in other jurisdictions of pro-active release of information about ministerial meetings [45-50]. The up to date list of jurisdictions where information about appointments is published includes Queensland, NSW, (in both cases as a matter of policy not a legislative requirement), United Kingdom (example) and United States.  

The commissioner in deciding in Fletcher that parts of a minister's diary should be disclosed noted various court and tribunal decisions in the UK, Western Australia and Canada where access to appointments diaries had been granted because exemption claims fell flat and/or the public interest in disclosure was strong:The Cabinet Office v Information Commissioner EA/2008/0049 (UK Tribunals Service, 5 January 2009); Re Ravlich and Attorney-General; Minister for Corrective Services [2009] WAICmr 17 (Information Commissioner (WA), 14 August 2009); and Canada (Information Commissioner) v Canada (Minister of National Defence [2011] 2 SCR 306 (Canadian Supreme Court).

The Attorney General's opposite view is of particular interest given the bill in his name before the Senate since October 2014 that would abolish the independent Australian Information Commissioner position and among other arrangements, transfer to the Attorney General himself authority to issue guidelines on the interpretation of the FOI act. Decision makers must have regard to the guidelines in exercising functions under the act. 

From the Explanatory Memorandum: 
Items 12, 13, 16, 17 and 20 omit references to the Information Commissioner in connection with guidelines issued under section 93A of the FOI Act consequential to item 53, which amends section 93A to provide that the Attorney-General, rather than the Information Commissioner, may issue guidelines.

Items 18 and 19 amend section 11C of the FOI Act to replace references to the Information Commissioner with the Attorney-General, as the Attorney-General will have the power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log.


Item 50 inserts new section 92A of the FOI Act which provides for the Attorney‑General to prepare a report on the operation of the Act each financial year and sets out the matters that must be reported. This ensures that the annual reporting requirements in section 30 of the AIC Act in relation to FOI matters will continue. The Attorney-General will be responsible for reporting on the FOI Act instead of the Information Commissioner. 

Item 53 replaces references to the Information Commissioner being responsible for issuing guidelines under the FOI Act with references to the Attorney-General.
Fortunately the bill seems well blocked in the Senate, so we might be spared the AG's version of guidelines on ministerial diaries and other matters where the public right to know  as set out in the FOI act must be weighed against valid government needs for secrecy and confidentiality.

Ah but the Attorney did say before Christmas he hadn't read the AAT decision and when he had done so would decide if it should be appealed.

It ain't over till its over.

Two posts on related matters here and here.





Agencies (and the AG's office) overplay the consulation card; all part of the FOI game?

 The second of three related posts.

Justice Jagot's ruling in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 on the interpretation and application of the Freedom of information Act provisions regarding third party consultation and the method of assessing the time involved is of significance generally as a somewhat rare Tribunal decision on the subject.

However the Office of Australian Information Commissioner has dealt with a swag of cases over the last year often rejecting agency arguments about these issues. And rejecting what some agencies without foundation seem to regard as a golden rule-that a request that is likely to take more than 40 hours will substantially and unreasonably divert resources.
 
My guess is the reported decisions are the tip of a rather large pile of questionable decisions regarding consultation.Allof which must cost the taxpayer a packet-probably more than the cost of getting on and processing the application in some cases.

Consultation is often required under the FOI act but where it is unnecessary consultation works to slow things down, adds to charges, and as in this case provides the false basis for a refusal to process the application because of a "practical refusal reason"- the work involved "would substantially and unreasonably interfere with the performance of the Minister's functions."(In the case of an agency the test is "would substantially and unreasonably divert the resources of the agency from its other operations." Section 24A.

OAIC decisions 2015
The Department of Immigration and Border Control unsuccessfully argued to the Acting Australian Information Commissioner that it would need to consult with 600 employees before releasing documents relating to the structure of the Department and various contact lists for particular sections within the Department, including the ‘top structure’ of senior management-in other words details of the organisation chart. 

Commissioner Pilgrim concluded it was not reasonably practicable for the Department to undertake consultation with 600 employees. Consultation was not required.[36]

(Battling it out in the OAIC in this case followed earlier attempts by the department to slow things down: a previous request was refused because it did not specify it was a request under the FOI act. The amended request was then refused "on the basis that my reference to the Freedom of Information Act 1982 (Cth) was made in the subject heading and not in the body of the email. And secondly, on the basis that my request was made directly to the Authorised decision-maker... and not to one of the addresses nominated by the DIBP to receive such requests." [18]. 
When in the course of the resulting slow journey through the review process at OAIC the commissioner sought submissions from the department on points raised by the applicant, the Department didn't bother [43]).

In an earlier decision involving the same department and similar documents Ray Brown and Department of Immigration and Border Protection, Commissioner Pilgrim had reached the same conclusion: that the Department could decide to give access without engaging 527 staff members in consultation. The Department estimated consultation would have taken 1,052 hours.

The Department of Prime Minister and Cabinet unsuccessfully argued that spending what the Acting Australian Information Commissioner decided was an over estimate of time processing an application for records relating to the US Central Intelligence Agency extraordinary rendition program was a substantial and unreasonable diversion of resources.

On that widely accepted golden rule referred to above, the commissioner said
30.. "40 hours does not indicate a threshold in which a request can no longer be processed, and requests where processing time is in excess of 40 hours do not automatically amount to a practical refusal reason. This is illustrated in ‘FX’ and Department of the Prime Minister and Cabinet [2015] AICmr 39, where I found that a processing time of 53 hours was not an unreasonable diversion of resources and therefore a practical refusal reason did not exist and in ‘GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46, I found that a processing time of 39 hours was not an unreasonable diversion of resources and that a practical refusal reason did not exist."

The commissioner in a previous decision ordered PM&C to process an application for documents relating to David Hicks, rejecting arguments that an additional 20 hours would be needed for consultation with the United States: the consultation provisions "do not include consulting with foreign governments."[31] Processing the application would take between approximately 4.3 and 7 days of an officer's time and would not in any event substantially and unreasonably divert PM&C’s resources from its other operations.

In another case the commissioner decided the PM&C estimate was excessive and placed emphasis on the finding that the claimed diversion of resources was not unreasonable in any event. 

The Department of Education and Training estimated processing an application would take 95 hours. Based on a sample of relevant documents, the commissioner said retrieval and review would consume approximately 49 hours [22] and consultation around six. This would not substantially and unreasonably divert the Department’s resources from its other operations.

Personal experience
I've had quite a few personal experiences of really questionable 'need to consult' calls.The Attorney General's Department consulted me recently because they said a document sought in an FOI application contained information about me. As best I could tell-they just sent me part of the document- the information consisted of my name and a summary of a couple of points made in a submission on the 2010 draft FOI reform bill published on the AGD website!  

Consulting people about their comments on the public record on public policy, in this case, ironically, about open government, is way beyond what the act requires.

While the watchdog's on death row...
The dire circumstances of the Office of Australian Information Commissioner since May 2014 as a result of the Attorney General's attempt to abolish the office, and the squeeze on resources for the FOI function means the watchdog has no capacity to look into agency practices such as this. 

The last OAIC own motion FOI investigation of any kind into agency FOI practices was undertaken in 2014- the second I think since 2010. 

The OAIC 2015-16 Corporate Plan (Goal 2) notes the only funding for the FOI function is for the conduct of review decisions-nothing for investigations and much else. 

In review decisions that chew up funds available the commissioner keeps saying the same things but agencies go on their merry ways.

Maybe a rare AAT decision on the subject might command a bit more attention and acknowledgement in practice.

Two posts on related matters here and here.



The Attorney General's Appointments Diary: Tribunal rules his man mostly got it wrong

The first of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 overturned the decision by the Office of the Attorney General to refuse to process a Freedom of Information application for the Attorney General's appointments diary for the period 18 September 2013 to 12 May 2014. 

Justice Jagot ordered the office to process the application by Shadow Attorney General Mark Dreyfus after a finding that processing would not substantially and unreasonably interfere with the performance of the Minister's functions (Sections 24 and 24AA).
 
Justice Jagot was critical of and disagreed with the approach taken by the office in interpreting and applying the act's provisions on third party consultation, and the calculation of the estimated time involved in order to justify the 'substantial and unreasonable' claim:
76.... this is a case where my conclusion is ultimately based on the onus of proof. It has not been established that processing the request would substantially or unreasonably interfere with the performance of the Attorney-General’s functions having regard to the matters required to be considered in s 24AA(2) of the FOI Act.. 
The evidence before Justice Jagot was provided by Paul O'Sullivan the Attorney General's Chief of Staff, a former DFAT official, High Commissioner to New Zealand and head of ASIO. O'Sullivan is the delegated FOI decision maker in the Attorney General's office.

O'Sullivan had estimated 228-630 hours would be required to process the application including between 130 and 526 hours in consulting persons whose names appeared in the record. 

Justice Jagot ruled most of the consultations were not required by the act and found O'Sullivan's time estimates for other tasks associated with processing the application "unpersuasive", 'generous" and involved "duplication." [74]
  
Justice Jagot said the approach taken by O'Sullivan to the task would defeat the objects of the FOI act, including not only the right of access granted by it but also the express intention of the Parliament that functions and powers are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
15. Because the process of reasoning involves a hypothetical situation the Minister’s or agency’s assessment will necessarily be based on estimates about which, I accept, reasonable minds might differ. It is fundamental, however, that the process of estimation reflects the requirements of the FOI Act. If, for example, the resources that would have to be used are estimated on the basis of requirements for consultation when the FOI Act does not require consultation, then the capacity to decide if a practical refusal reason exists would be able to be used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. The same thwarting of the statutory objects and the intention of Parliament would result if, for example, the estimate was based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged.
Consultation not required
Justice Jagot rejected O'Sullivan's evidence concerning security risks and the need to consult with bodies such as the Australian Federal Police, State and Territory police or intelligence agencies [34-39]; and rejected his assertion that where the name of business representatives or individuals appear in the diary it would "be necessary in every case to go behind the entry and examine associated documents and undertake a complex process of working out whether, by the disclosure of some pattern or mosaic, the disclosure of the information might unreasonably disclose personal or business information of the relevant kind such as to require consultation with the person concerned.' [40].

Importantly, Justice Jagot said it is not necessary to go behind the face of an entry in the diary of a planned meeting with a business representative in order to try to find if there is any reason which might found a reason to consult [44, 45-48].

The names of public servants disclosed as scheduled to attend meetings was not the basis for a claim that the personal privacy exemption could apply [50] therefore not triggering consultation requirements.

Entries in the diary about cabinet meetings [54-57] and a meeting with the Prime Minister's Office [60] were among examples raised in a sample provided in evidence. Justice Jagot said they did not raise consultation or exemption issues.

Correct approach 
Justice Jagot said the obligation to consult prior to disclosure of information concerning  business affairs of a third party was necessary only if the decision maker concluded that the third party "might reasonably wish to make an exemption contention." The test is not whether it appears that a person might wish to make an exemption contention but the identification of "some rational basis which the agency or Minister can discern indicating that disclosure of the document would, or could be expected to, unreasonably affect such a person adversely" in respect of his or her lawful business or professional affairs (etc) [41-42].

Where names of individuals appeared, similar considerations applied:
49,Where an entry in the diary discloses the name of a person who was scheduled to meet the Attorney-General within the period of the requests and nothing more, I am unable to accept that in the ordinary course disclosure of that fact would or even could “involve the unreasonable disclosure of personal information about any person”. As such, I am unable to see a rational basis upon which it could appear that every one of these person(s) might reasonably wish to make an exemption contention. As above, I do not accept that the decision-maker is obliged to search for something not apparent on the face of the document or not otherwise known. If there is nothing apparent on the face of the document and nothing otherwise known to the decision-maker then it cannot appear to the decision maker that a person might reasonably wish to make an exemption contention. The mere appearance of a person’s name in the diary, in my view, is insufficient for it to be apparent on the face of the document that a person might reasonably wish to make an exemption contention. Where, however, something more is disclosed such as the purpose of the meeting or there is some known sensitivity I accept that further consideration or even consultation under s 27A might be required because the view might be reached that such a person might reasonably wish to make an exemption contention. Again, however, my review of the diary extracts indicates that this will be a rare case....
  1. Because it is fundamental to the proper administration of the FOI Act, I should reiterate my view that I consider that it would be wrong to approach the required task on the basis that: (i) some people might be sensitive to or concerned about the fact that they have met a Minister in the Minister’s official capacity or that such people might prefer, even strongly prefer, that the fact of their meeting not be disclosed; or (ii) the decision-maker is subject to some obligation to search for material not known or otherwise apparent from the face of the document to which access is sought to try to find some basis for it to appear that a person might reasonably wish to make an exemption contention. There is no foundation in the FOI Act to perform the functions which it requires with a view to such sensitivities. To administer the FOI Act on some other basis would work against the intention of the Parliament. It would elevate personal sensitivities which on a rational view could not involve an unreasonable disclosure of personal information about any person into something that an agency or Minister would have to assess, thereby running the risk (as in the present case) that the agency or Minister perceives that an extraordinary amount of time and effort would be involved in processing the FOI request. By such means, if permitted, the intentions of the Parliament as identified in s 3 would be thwarted.
  2. I should also reiterate the relevance to my conclusions in the present case of the fact that the diary extracts in evidence seem to me to consist, in the main, of a series of brief and anodyne entries relating to appointments and work arrangements of the Attorney-General now more than 18 months old. While an underlying issue which was discussed at a meeting might be ongoing, the entries in the diary merely describe who was to be met, not the contents of the meeting, and are now essentially historical.

 Incorrect estimates
O'Sullivan's estimate of the time involved was "calculated on an incorrect basis. While some consultation might be required because of the personal privacy and business documents exemptions "it has not been proved that anything like 130 - 526 hours might be involved. I consider it likely that any consultation required by the FOI Act will be very many orders of magnitude less than has been proposed."[51]. 


No substantial and unreasonable interference with AG"s performance of functions.
 As to the work involved:
75.... I do not accept that this is capable of involving a substantial and unreasonable interference with the performance of the Attorney-General’s functions. The fact that only one person in the Attorney-General’s Office can perform this function because this person is the only one with the relevant software available (as Mr O’Sullivan indicated) and that the task of deletion involves a number of steps is not particularly material to the performance of the Attorney-General’s functions unless, perhaps, the person doing the deletions is the Attorney-General himself or a senior member of staff, neither of which was suggested to be the case...
77.To the extent I am able to make findings about what work will be likely to be involved I do not consider that work will substantially interfere with the performance of the Attorney-General’s functions. I accept that the work itself will not be trivial or insignificant, but that does not mean that such work is likely to involve a substantial interference with the performance of the Attorney-General’s functions. Nor do I accept that any interference as there might be will be unreasonable. Against this, at the level of principle, I consider that there is a significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General. I accept the applicant’s submission that to the extent there is any interference with the Attorney-General performing his functions (which, in my view, has not been proved), the interference would be reasonable having regard to several factors, being:
i) There is considerable public interest in the release of the Attorney’s diary;
ii) No steps have been taken to make the diary public; and
  1. The actual diversion of resources involved in responding to the request should be minimal.
78. For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act.
Next steps?
It is uncertain whether the Attorney General will appeal the decision, and if not what will be released when the application is processed. 

Justice Jagot's comments about the " significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General" provides an interesting backdrop.

Two posts on related matters here and here.