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Tuesday, September 02, 2014

Royal Commissioner calls for reinvigorating 'frank and candid', secrecy not part of the formula

Among other findings about the Home Insulation Program, Royal Commissioner Hanger takes the government and public servants to task in his report tabled in Parliament yesterday.

Of particular interest are the commissioner's observations about public service advice (Chapter 14) in light of the decisions about the need for confidentiality in the advice process by the Australian Information Commissioner, and agency FOI knock backs I have seen since arguing refusal of access is necessary if public servants are to retain the trust of ministers and in order to ensure frank, comprehensive advice is forthcoming in future:
  • senior managers failed to provide candid advice to Ministers including briefings to Minister Garrett (14.3.2);
  • if "frank, honest, comprehensive, accurate and timely advice of the kind referred to in section 10(1)(f) of the Public Service Act had been given at key junctures", there is little doubt the tragedies that occurred would have been avoided (14.3.4);
  • in a section on frank and fearless advice in the context of the public service today (14.6) a call for the Australian Public Service "to reinvigorate its willingness to provide in writing advice that is as frank and robust as the advice it is willing to give verbally. This requires cultural change of two kinds:14.6.6.1-senior officials and Ministers being aware they are entitled to act contrary to advice. The fact they received advice contrary to the way in which they act is no necessary or automatic basis to impugn the decision. 14.6.6.2- public servants giving advice must be encouraged to think clearly, to free themselves as much as possible from institutional biases and taboos and to have courage when giving advice."
The Commissioner goes on to suggest the need for more 'Black Hat' thinking in advice work, emphasises the importance of multifaceted advice, and observes that it was a shame that those entrusted with the implementation of the HIP did not adhere to Australian Public Service Commission practical guidance on values and code of conduct (14.6.9-14.6.11).

While there is nothing in the report that supports the line of current thinking in some Canberra circles that advice must be protected under FOI from the glare of the public spotlight even after the thinking/deciding stage has passed, that potential FOI disclosure poses a threat to frank and candid, and that stronger FOI protections are required if public servants are to do their job properly, I'm sure those who argue this case will try to use this case study to effect somehow.

The Commissioner (1.3) also comments on issues concerning the conduct of the inquiry, none of which are flattering to the government or the public service: 
  • over reach on public interest immunity claims that were advanced in a slow and cumbersome manner ; 
  • gaps in his powers for example to compel the production of a statement by a potential witness (despite a recommendation never acted upon, from the ALRC four years ago), and constraints on current and past public servants arising from section 70 of the Crimes Act (the ALRC recommended five years ago repeal of the current draconian 'unauthorised disclosure' provision and a replacement based on identifiable harm - that also hasn't been heard of since);
  • conduct by the Commonwealth and public servants that hampered his work including a failure initially to locate a large number (tens of thousands) of emails; that 'current public servants were not entirely forthcoming with the Commission as none volunteered any information, many had no recollection of important events and none was prepared to contradict another; that with very few exceptions public servant witnesses chose not to make submissions and "extraordinarily" the Commonwealth chose not to make submissions when invited to do so. 
  • the Commonwealth did not suggest one witness that should be called and produced documents piecemeal and haphazardly in 147 tranches. In commenting on the inadequacies of the government document management system the Commissioner notes that mysteriously 100,000 documents were produced towards the end of public hearings that were said to "not form part of the established filing system."
Senator Eric Abetz is the Minister Assisting the Prime Minister for the Public Service. 
Look forward to his wisdom in due course.

Monday, September 01, 2014

New light shines on parliamentarians' entitlements

Rosie Williams at InfoAus has turned published government information into something more searchable for transparency and accountability purposes, this time using details published by Department of Finance about use of entitlements by Federal parliamentarians. 

Finance publishes claims/repayments twice a year, six months after the end of each period. They have improved accessibility over time, now presenting information about individual senators and members by state and territory

The entitlement picture is still far from complete as outlined in October last year. On the broader issue, the government's reaction to the scandal that came to light at that time was entirely inadequate.

(Publication of information about use of entitlements by the states remains firmly entrenched in the Dark Ages.)

Rosie has provided new search functions (Rosie @Info_Aus is interested in feedback, corrections) that enable easier access to Finance material including by Party and type of expense making these tallies available:
ALP
Coalition
The Greens.
  
By expense type providing comparative tables,among them:

Travelling Allowance
Overseas Travel
Chartered Flights
Telecommunications 


And sure to attract interest the details of Repayments and Adjustments

Rosie turned parts of the Federal Budget Papers into more searchable information with BudgetAus two years ahead of this year's first step by the government to publish data from the 2014-2015 Federal Budget in Excel & CSV formats.

She also developed KnowYourPlace an interface to search the ABS data on Socio Economic Indicators by town, council area, electorate or state.

Nick Evershed at The Guardian, one of the small but growing band of data journalists also utilised Finance material on administrative costs to locate printing, distribution and website costs for each parliamentarian in various time blocks to provide this insight into use of entitlements Politicians billing taxpayers twice for election campaign material 

Yes Minister playbook still handy for FOI decision makers in Victoria

One example doesn't prove that Freedom of Information in Victoria is in bad shape, but add this knock back for ambulance response times to the indicative evidence pile:
In refusing the FoI request, Ms Sorrell said releasing local area response times could harm AV’s business by frightening off subscribers in areas where response times were longest, and even encouraging people to drive to hospital. She also claimed the release of local response times might “unduly excite public controversy”, “cause confusion” and disadvantage AV in its long running pay-and conditions dispute with paramedics. “There is a very clear public interest in maintaining public confidence in the delivery of ambulance services ... and increasing subscriptions for ambulance services,” she said.
The Herald Sun says Ambulance Victoria has refused to hand the information over to the Victorian Civil and Administrative Tribunal, forcing court action certain to delay things until after the election in November.

The Hun earlier reported that the Opposition was refused access under FOI to average response times for AV’s 250 branches, losing an appeal to VCAT where "senior member Robert Davis accepted AV is foremost a commercial operation, rather than a public service."

The reporter tells me the Tribunal found branch response times would not help the public know how long an ambulance was likely to take in a particular locality (as ambulances often work outside their branch areas) but said "there is a public interest in members of the public knowing emergency response times in their local area". AV also accepted an Auditor-General's recommendation in 2010 that it publicly report "a breakdown of performance by region/locality".


"Cause confusion"and"unduly excite public controversy" suggest the Yes Minister playbook is still well thumbed in Victoria:
Sir Humphrey: There is a well established Government procedure for suppress… deciding not to publish reports.
Jim Hacker: Really?
Sir Humphrey: You simply discredit them.
Jim Hacker: Good heavens... how?
Sir Humphrey: Stage one, you give your reasons in terms of the public interest. You hint at security considerations – the report could be used to put pressure on goverment and could be misinterpreted.
Jim Hacker: Anything could be misinterpreted. The Sermon on the Mount could be misinterpreted!
Sir Humphrey: Indeed – it could be argued that the Sermon on the Mount, had it been a government report, would almost certainly not have been published. A most irresponsible document. All that stuff about the meek inheriting the earth could do irreparable damage to the defence budget.
Confusion and unnecessary debate have been irrelevant public interest considerations under Federal, Queensland, NSW and Tasmanian laws as a result of the FOI reforms of 2007-2010, but Victoria is yet to go anywhere near comprehensive review and reform of its 1983 legislation.


Thursday, August 28, 2014

FOI Commissioner gets a hand from legislative changes but FOI itself in bad shape in Victoria

The Victorian Parliament last week passed the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014.It comes into force the day after proclamation, so any time now, maybe already - there's no mention of it on the Freedom of Information Commissioner's website at present.

As summarised when the bill was introduced in June the FOI changes are minor in comparison to the wholesale rewrite (Victorian FOI law weakest in the country, says expert Dr Johan Lidberg) needed not to mention embrace of the spirit and intent first advocated 30 years ago by then premier John Cain. 

However in providing for the appointment of Assistant Freedom of Information Commissioners authorised to make decisions, and ensuring that many of the functions of the Freedom of Information Commissioner may be undertaken by, or delegated to, members of staff, the amendments may help to reduce the backlog in review matters piling into the intray.

These changes are in line with those advocated for his own patch by Australian Information Commissioner Professor John McMillan to no effect, before the current  Federal attorney general announced the government's intention to abandon the whole show, a retrograde step for the transparency and accountability cause.

The Victorian bill also will "provide greater guidance in relation to time limits and notification requirements by, and to, the Freedom of Information Commissioner (and) facilitate the effective and informal resolution of reviews and complaints." The Second Reading Speech and this Summary by Melanie Olynyk of Maddocks give a fuller outline.

Debate in the Legislative Assembly (Hansard 2661-2664) was lacklustre. The Government accepted one amendment moved by the Opposition: when a matter is either referred back to an agency by the FOI Commissioner for consideration or when the agency decides to reconsider a matter at the time before the Commissioner on its own initiative the decision must be made within 28 days not 45 as originally proposed.

The Legislative Council debate on 21 August (Hansard 2686-2691) saw Labor's Marg Lewis (a retired teacher and school principal appointed to fill a casual vacancy in June) and The Greens Greg Barber ( a veteran of many an FOI joust) provide a likely accurate rundown on the poor state of FOI in Victoria.

Separately, Alison Sandy FOI Editor Seven Network recently wrote of these negative experiences in using the Victorian Freedom of Information Act.

With an election due in November, any Liberal Party assurances about serious intent regarding improved transparency and accountability (like this from then leader Ted Baillieu last time around) will be taken with a grain of salt. 

So too from Labor perhaps given they had plenty of chances during years in office, most recently 1999-2010, to give effect to John Cain's vision and his urging, this in 2008:
"What is needed, 26 years after my government introduced the FOI law, is to have it truly respected by politicians and public servants......The real problem here is public service culture. In some parts it still rejects the notion of FOI. The secrecy and "we know best" syndrome that is cherished in the public sector is alive and well. In these times of the internet, a more enquiring and better educated community, it just does not wash. People want to know things - and so they should...In 1982-3 we sought to "educate" public servants to "live with" FOI. This should be done again.. Community acceptance of public policy is enhanced by full disclosure. If FOI worked properly, it would create a climate where the need for a Crime Commission was diminished. "

Wednesday, August 27, 2014

Proposed FOI arrangements retrograde not beneficial

With the Freedom of Information Amendment (New Arrangements) Bill listed in the Legislative Program for the current spring sitting of Federal Parliament the following might assist parliamentarians considering whether disbanding the Office of Australian Information Commissioner will improve transparency and benefit users of the Freedom of information Act. 

I have sent a copy of this to senators who take an interest in such issues. You may wish to let senators and your local member know what you think as well. 

The program (pdf) describes the bill as follows.
-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints 
Rationale
Apart from claimed cost savings of $10 million over four years, the explanation for the decision in May was that it would bring efficiencies by removing the two tier merits review now available. According to Senator Brandis:
The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
Dismantling the office goes far beyond what would be necessary to achieve this purpose.

What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently.

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act.

Federally FOI was leaderless and rudderless until the establishment of the OAIC in 2010. The new arrangements take us back there.

So too synergies
Much was made in 2010 and since of the benefits of combining information access and information privacy functions in the one office, and conferring strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech
The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.
In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes with a role in merit review of FOI decisions in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania. In a report tabled recently in South Australia the Ombudsman recommends the establishment of an independent champion and monitor for FOI, something they have never had to date.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September last year. There is nothing in the report that justifies the abolition of the OAIC. Generally (page i)
the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent. It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect. Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.
More directly: (page 24):
The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.
And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)
The current system of multi-tiered review has been in operation for two and a half years. At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review. The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.
The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $861 for starters at the AAT. Demand for review of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixty one dollars can be expected to work wonders on the numbers.

Unacknowledged cost to agencies
One of the changes arising from going back to the pre reform era involves reinstating mandatory agency internal review before a matter can be taken to the AAT. This will involve additional unbudgeted costs to agencies, already subject to resource limitations.

Overall it is a retrograde step. The changes wipe the review model adopted in the reform package of 2010, and it's back to where things used to be and we know they didn't work properly then.The OAIC disappointed in a number of respects, particularly the long delay in review decisions and the failure to really get stuck into those not playing fair and square, but it was under resourced and never had the opportunity or clout to really push the message that the government was serious about transparency and accountability-that's assuming it really was.

More powers, more resources and strong ministerial backing is what is needed, not the return to the status quo ante 2009.

Tuesday, August 26, 2014

Techo problem

Temporary (I hope) problem-lost the sidebar and content while trying to fix something else. Bear with me. Update: Can hardly believe I solved that myself!

Federal Parliament back in the spotlight

Plenty of big issues on the agenda but....

Update: Oops! Thanks to the watchful soul in Canberra who tells me I was looking at the 2013 program not 2014.  

The correct list (pdf) of proposed legislation for the spring sitting includes The Freedom of Information Amendment (New Arrangements) Bill 2014:
-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints.
As I was saying before thankfully corrected:

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

.............. 
Continuation as originally published:  
.....no sign on the published legislative program(pdf) for this sitting of a bill to abolish the Office of Australian Information Commissioner and deal with the flow on effects. 

Labor, The Greens, PUPS, DLP, Family First and independent senators particularly senators Xenophon and Leonhjelm who have a strong interest in transparency and accountability should look closely at how the changes will benefit FOI applicants as claimed by the Attorney General in the only public words uttered in announcing the decision in May or since.

Quite apart from leaving the cause of FOI virtually orphaned in the hands of the Attorney General's Department, the 'administrative efficiencies' that will see merits review back exclusively with the AAT will mean applicants aggrieved face a charge of $861 (currently) for the pleasure. 

Abolishing the information commission runs completely counter to good practice access to information here or anywhere else in the world.

And I'd wondered what had happened to this proposed cut back on contract disclosures in the name of 'red tape' that emerged in February. The Canberra Times reports today that Labor won't support it, so another issue to add to the cross bench chat list.  

Thursday, August 21, 2014

Last week for NSW statutory review submissions

A reminder, to me to get cracking as much as it is to you, that submissions to the statutory review of the NSW Government Information (Public Access) Act and the Government Information (Information Commissioner) Act close on 29 August.

I'm no fan of the way these reviews are conducted- a notice that the review is underway that few will ever see, terms of reference limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives", no discussion or issues paper, no dialogue or fora for interested parties to engage and discuss, and almost certainly no attempt by the agency conducting the review or any agency to survey users, or frequent users. On the other hand government agencies will be well armed with suggestions that reflect their interests.

Somewhat similar to the unsatisfactory process in the review of the Commonwealth act by Dr Hawke that the government has now had a year to chew over.

In Queensland the review of the RTI act and aspects of the information privacy act kicked off a year ago with release of two discussion papers but not a word since.


Report due in NY next month on government support for civil society

Eleven months ago Australia joined 20 other governments in a High Level Forum in New York chaired by President Obama in support of civil society.

The governments later issued a joint statement that noted their "deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline"; commited to take action "to respond to growing restrictions on civil society that undermine its ability to perform its crucial role.. an alarming trend"; called on "representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society"; and agreed to meet again at the opening of the 69th United Nations General Assembly to review progress toward these objectives.

The General Assembly convenes on 16 September. 

Someone in DFAT is no doubt beavering away on what Australia can say about our efforts to this end.

Speeches by Minister Andrews and plans for the National Centre for Excellence will feature; so will government financial support for the C20 and facilitation of the Global Summit earlier in the year.

A specific commitment in the joint statement was to strengthen support for existing mechanisms that encourage civil society participation such as the Open Government Partnership. The government's current public position is that whether Australia should join the OGP is still 'under consideration' so there is a month (it's been three years) to tidy that up.

I'm sure the report won't go there, but squaring our stated support for an active civil society with other words and deeds would constitute a challenge:
  • cuts to funding community legal centres and removal of a clause from the funding agreement that confirmed their role in policy debate and advocacy;
We will hear more at home on the last three issues given this recent speech by Shadow Attorney General Mark Dreyfus.

Wednesday, August 20, 2014

Open parliaments and pollies weekend in Sydney

Open Australia is organising a Hackfest in Sydney on 21-22 September focusing on parliaments, politicians and elections. The event is timed to coincide with the Global Legislative Openness Week (GLOW) an initiative of the Legislative Openness Working Group of the Open Government Partnership. Good to see this engagement in advance of the much considered issue of whether Australia is to join the OGP.
 

I've lamented-here and here and here, three of many posts on the subject- that our parliaments and parliamentarians are still to fully and eagerly embrace the information age, so interested to see what those who put their minds to it can do with what is available.


Tuesday, August 19, 2014

Australia missing deadlines but not on OGP tardy list yet

Freedominfo.org reports the Open Government Partnership has cautioned 11 member governments over missed deadlines and other compliance issues. 

Australia is not among them despite the fact that the OGP lists us in Cohort 4 and the Calendar for Participating Countries attached to that page has Cohort 4 countries down to officially join in April 2014, and to "Develop action plan in close collaboration with civil society" by June 2014. The Australia page Current status says "Developing 1st Action Plan." 

Although Open and Shut has had an inkling that a decision has been taken to go ahead and there have been many great opportunities recently to make an announcement, the government's stated public position is that whether we proceed to membership or withdraw the May 2013 notice of intention to join remains 'under consideration'.

 
OGP Calendar For All Countries.docx
OGP Calendar For All Countries.docx


OGP Calendar For All Countries.docx

Sunday, August 17, 2014

Time to stand for integrity

With trust in government down, down down and support for democracy itself in decline, how federal politicians might dance around integrity related topics in coming months will surely be a sight to see. It is not just that we don't have a national integrity commission. Political donation and lobbying laws and rules are inadequate as well. In May when The Greens bill to establish an integrity commission came on for brief debate, government speakers weren't having a bar of it. As Bob Bottom recounted two years ago in The Australian it's been talked about for 30 years. The time has surely come. The holes in our integrity system are a national scandal.

Monday, August 11, 2014

Opportunity knocks again for an announcement on Open Government Partnership?

US Secretary of State Kerry is in Sydney for the Australia -United States Ministerial Consultations to commence  tomorrow.

In June, in Washington, he said 
And whether it is support for democracy, rule of law, standing up for human rights, speaking out across the planet, Australia is at our side.
Prime Minister Abbott at the time said it is important to ensure "we are all good international citizens. Because the lesson of history is that we will all advance together or none of us will advance at all."  
  
PM Abbott is in London now for talks with UK PM Cameron. Mr Abbott has spoken of the "enduring community of interest and values between our two countries."  

Last week at the US -Africa Summit the US outlined its support for good governance and human rights including through partnerships to promote openness:
With South Africa, Tanzania, and five other countries, President Obama in 2011 launched the Open Government Partnership (OGP), a voluntary, multi-stakeholder initiative in which governments make concrete commitments to promote transparency, empower citizens, fight corruption, and harness new technologies.  The OGP has grown rapidly to include 64 countries, including Ghana, Kenya, Liberia, Malawi, Sierra Leone, and Tunisia from Africa.  U.S. assistance amounting to approximately $16 million has helped Sierra Leone develop its first OGP National Action Plan with robust citizen engagement, and helped Tunisia become eligible to join OGP on the third anniversary of its revolution in January.  In Liberia, a $16 million multi-year program has helped Liberia implement its OGP commitments to transparency, accountability and citizen engagement.  The United States is also working with several private sector partners and associations to help build capacity to implement open data policies, develop legal and regulatory reforms, and improve accountability and public service delivery in African OGP member countries.
 Last year Mr Cameron said
Open governments backing open economies make for successful nations...the 4 big things that I think we need to do...First, we’ve got to get out there and really make the argument for open government..Second, we’ve got to translate words into deeds. We can’t just talk about open government, we’ve got to deliver..Third, in developed countries we’ve got to practice what we preach. When we talk about transparency elsewhere, we’ve got to show it at home too.. But there is one more thing. We’ve got to give our full-throated support for the groups that support and promote transparency, not least the Open Government Partnership. This is a truly exciting institution.
So two great opportunities this week for Australia, after much consideration, to announce shared values, support for democracy and good international citizenship means we are proud to stand with the US, UK and 61 other countries in the Open Government Partnership?

(Update: Ah nope: The AUSMIN communique runs to about 5500 words but no room for the OGP apparently. David Cameron squeezed in a phone call to the PM while away on holiday.)

Still hopeful....... 

Turnbull no open data hack

Lots of enthusiasm (as evident from the twittersphere) at GovHack 2014. Winners according to IT News excelled "in the field of using government data in creative and meaningful ways to create applications that help make sense of our social and economic milieu."

Malcolm Turnbull did the honours in Brisbane. If there was a prepared speech it should show up here. Meanwhile the minister explains the intelligence community's interest in our metadata, narrowly defined, during the ITNews Q&A.

Tuesday, August 05, 2014

FOI umpire rules 'gaming' experts at Immigration onside

A year ago the reasoning of the Department of Immigration in dealing with Freedom of Information applications encouraged through the Detention Logs struck me as tortuous. I said I'd be amazed if it withstood scrutiny. 

Last week Freedom of Information Commissioner Dr Popple did just that in Farrell and Department of Immigration when he upheld the Department's claim on the key issue that it can treat 121 FOI requests for documents as a single request, or as two or more requests, under s 24(2) of the FOI Act. 

Explained in this one paragraph:
  1. Each of the 121 FOI requests referred to in [4] and [5] above seeks further information about an incident referred to in the spreadsheet that the Department published on its disclosure log in August 2012. The requests relate to different incidents, but I am satisfied (for the purposes of s 24(2)(b)) that each request relates to documents the subject matter of which is substantially the same: that is, documents referred to in the spreadsheet and relating to incidents within the detention network between 3 October 2009 and 26 May 2011.This approach is consistent with the scheme of the FOI Act, which strikes a balance between facilitating a person’s right to access documents and allowing an agency to provide that access as efficiently as possible.
The amazing bit is that different reports qualify as documents the subject matter of which is substantially the same because the incidents they refer to are listed in the same speadsheet and occurred somewhere within the network of detention centres over the same 18 month period. And this is consistent with the scheme of the FOI act??

The broader ramifications of Dr Popple's interpretation of the act are interesting or concerning depending on your perspective.

Could any agency emboldened,Treasury for instance, argue requests for different documents mentioned or referred to in the 2014-15 Budget papers, or for any documents prepared on any subject in the lead up to the budget, referenced in that context and timeline, are requests for documents the subject matter of which is substantially the same?

In his decision, which relates to nine separate applications for IC review from ten IC review applicants, each expressed in identical terms, Dr Popple rejected [22-27] another aspect of Immigration's decision ruling the Department cannot treat as having been withdrawn those of the 121 FOI requests whose applicants advised the Department, during the request consultation process, that they did not wish to withdraw or revise their requests. The Department has been ordered to continue to process those requests. 

So the issue drags on and on. Immigration could do what it will in the light of the decision, or the Department, Farrell or any of the other OAIC review applicants left standing could seek review by the AAT - the first mentioned is probably better placed to fork out the $861 required.

Immigration's approach to dealing with these applications may have had the desired effect of holding the line and seeing off most of those involved who were interested in the issue at the time but not in jumping all the hurdles faced on the way through.

As not all aspects of that tortured reasoning of a year ago surfaced in Dr Popple's decision here is a recap of the path Immigration followed. It's turning out to be a tribute to 'smart lawyering' but no great advertisement for transparency and accountability.
  • requests made within a two week period in June and July for different reports by different people about different incidents often in different detention centres could be dealt with as a single request as the documents requested are 'documents the subject matter of which is substantially the same'; 
  • the time required to process what was regarded as a single application was three hours, the estimate for a single request of this kind, times the number of requests;
  • the resulting total time to process what was taken to be a single request would involve substantial and unreasonable diversion of resources away from other tasks, a practical refusal reason under s 24AA. (Before s 24AA can be activated, the applicant must be consulted and given an opportunity to revise the request. If the applicant does not respond, the agency can deem the request to be withdrawn.)
  • when some of those consulted didn't respond the request was deemed to have been withdrawn, even of those applicants who responded they did not wish to revise their request. As a deemed withdrawal is not an access refusal decision, none of the requesters had a right to review by the Australian Information Commissioner.

Monday, August 04, 2014

OAIC sides with 'frank and candid' to rule incoming government briefs exempt

The decisions by Australian Information Commissioner Professor McMillan in Parnell &  Dreyfus, and Crowe on the exempt status of incoming government briefs (IGB) under the Freedom of Information Act will please those in government who argue 'frank and candid' advice work depends on protection from disclosure, even though much of the reasoning focuses on the special circumstances of briefs prepared in advance for a new government. 

Much is made of the necessity that the public service get off to a good start with the new boss.

Unfortunately nothing much is made of the values that underpin the work of the Australian Public Service, that is to offer frank, honest timely advice based on the best available evidence. And little weight is attached to the public interest in knowing what government knows, for accountability purposes, and the contribution this information can make to informing public discussion and debate. 

This despite the fact that parts of the briefs should involve public service expert assessment and analysis of issues and challenges facing the nation, in the Crowe case now four years old, and in Parnell one year after the issues were raised with the government.

And that much of it might be pretty bland stuff in any event. As the Commissioner observes in Parnell "many and perhaps most paragraphs in the IGB could be individually and separately released without consequence."
  1. ..Yet the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government. Inevitably, therefore, one is drawn back to evaluating the exempt status of specific content by its inclusion in a document of a particular kind.
The Commissioner notes (Parnell [83]) that there is nothing to prevent ministers and agencies from making some information from an IGB publicly available, and that some have.

But he might have gone further as the South Australian Ombudsman did in commenting about the state equivalent documents in that case found to be cabinet documents:


In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind.
In Parnell & Dreyfus the Commissioner found that the entire 'Strategic Brief' including the list of contents and the transmission letter prepared for incoming Attorney General Brandis a year ago, and parts of the accompanying 'Information Brief' are deliberative process documents [s 47C] and disclosure on balance would be contrary to the public interest. 

In Crowe, the Commissioner applied the same reasoning, but cited some differences between the two [29-35] to rule against disclosure of those parts of a brief prepared in 2010 for prime minister Gillard that had not been released previously.

The decisions come as no surprise given the OAIC decision last year refusing access to the unused 2010 brief prepared for a Liberal Party Treasurer.

There are a number of other requests for IGBs through Righttoknow presumably some in the OAIC intray now awaiting predictable results, and Sean Parnell who tweeted this,
last week (from Communications I think) keeps trying.

As to the public interest...


Open Data-economic and social benefits

The wrap from a World Bank global policy dialogue event last week on the latest evidence of the economic benefits of Open Data and how it can be applied to advance socioeconomic growth in the developing world:
First, while there are several studies on the economic benefits of Open Data in OECD countries, there are few if any rigorous analytical studies on the economic benefits in developing countries. Although there was no discussion of this, I think that the research efforts of the Open Data Research Network can be a start. Secondly, there is no agreed methodology to evaluate the benefits of Open Data, and there is still no proper impact analysis –i.e. identifying a counterfactual- anywhere. There are plenty of concrete, factual examples of benefits and these show very high rates of return for open data investments, but still no agreed method to measure the overall benefits to an economy. The McKinsey report and the Lateral Economics study are good places to start, but these methodologies are themselves very data-driven and their applicability to data-scarce economies is still to be proven. Third, even though there is no standard methodology, it makes economic logic that increasing the re-use of any data will necessarily increase the return on investment on the data, since the value of the data is not depleted by use (an economist would say that data is a non-rivalrous good). 
Fourth, there was wide consensus that Open Data initiatives are quite inexpensive relative to the magnitude of their potential benefits, and are low-risk endeavors. Putting all of these together, we are not yet in a position to tell a government decision-maker that implementing an Open Data initiative will increase GDP in his/her country or region by a specific percentage or amount. But the evidence does suggest that the return on investment is substantial. And let's not forget that Open Data has non-economic benefits as well, such as transparency, improved service delivery, and increased data sharing in the public sector, which decision-makers should also consider.
On those broader impacts, Alex Howard following a separate thinkfest in Washington last week:
If national governments are going to invest time, money, and public attention on releasing data, they should also focus upon releases that have social benefits as well as economic outcomes..... As I've explored in past columns, publishing open data can increase resilience against climate change, offer insight into healthcare costs and outcomes, protect consumers, and fuel accountability and transparency.

Tuesday, July 29, 2014

Slipper guilty verdict sends a powerful message but won't fix transparency failings

The guilty finding against former Speaker Peter Slipper for dishonesty in the use of his cabcharge should send a message to parliamentarians about the need for close attention to the rules. But as we know from the big fuss last year and earlier this year when instances of questionable use emerged, the rules can be a bit rubbery.

What we do know about use of entitlements largely comes from information published by the Department of Finance about the payments it administers. Last week, the department published details of expenditure in the second half of last year for travel, office fitouts, telecommunications and publications, and for travel, office facilities and office administration for eligible former Parliamentarians. (Here's the take in The Age.)

While this is welcome, and miles ahead of what goes at state level, the system overall is a far cry from the simple, timely, comprehensive transparency and accountability model needed for use of entitlements by parliamentarians and related integrity matters.

Half yearly publication on line of details of payments by Finance goes back to 2008. Reporting categories were expanded in 2009. Publication is nowhere near real time. The latest, July to December 2013 includes information about expenditure some of which was incurred over 12 months ago. Searching across members and senators and over different six month periods is complex, putting it mildly.The Belcher Committee four years ago noted that publication by Finance is voluntary/discretionary and recommended it be enshrined in legislation.Nothing has happened on that score since, or on a raft of other Belcher recommendations.

Details of use of entitlements paid by Finance before 2008 is not published. Possibly available under Freedom of Information. Probably wait at least 30 days and you may have a drawn out fight on your hands. With regard to some information, the member or senator may argue that it is personal and should not be disclosed as Prime Minister Gillard did unsuccessfully in 2012-13 concerning a repayment made in 2007. That was classic gaming the system by grasping at straws to delay disclosure of information that clearly was not exempt.

Payments to, or support provided to senators and members by the Parliamentary departments are not published. They can't be accessed under FOI because parliament exempted itself from the act in June last year. Depending on what you ask for the parliamentary departments may at their discretion provide information or documents. Payments include salaries and electorate allowances, additional salaries and support provided to parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery: 

Gifts and interests: Published by the House and Senate as a series of notifications by the member but no up to date list of current interests is published and the registers have no search function. 

Payments to or on behalf of ministers, assistant ministers and parliamentary secretaries by their departments,and the cost of support provided are not published. These include official cars for the Minister and spouse; departmental liaison staff; additional stationery, office requisites, furniture and equipment in Ministers’ and Parliamentary Secretaries’ Parliament House Offices and their home State offices; official hospitality; and a range of other services. Maybe available under FOI.

At the Federal level and in the states, apart from sensible, clear rules, we need fully transparent timely disclosure on a comprehensive single fully searchable site to follow the money paid to or on behalf of parliamentarians and ministers, and declared interests.

Monday, July 28, 2014

Australia for more foreign affairs transparency - in New York

Positive comments all round in a Lowy Institute assessment Australia in the UN Security Council including for a push for greater transparency in international dealings. On the home front next?
Australia’s efforts to promote openness over sanctions have been a part of a broader strategy to raise the Security Council’s transparency.‘Transparency’ is not the diplomatic pabulum that it might sound like. Always an exclusive club, the (permanent 5 members) have notably increased their grip on the Council in recent years, conducting most essential negotiations in private.[ See Bruno Stagno Ugarte et al., Security Council Working Methods: A Tale of Two Councils? (Security Council Report, March 2014).] This sidelines the non-permanent members and alienates states outside the Council. In mid-2012 an alliance of small states led by Switzerland launched a General Assembly resolution demanding greater openness, but the P5 put aside their Syrian differences to crush the initiative. As Australia joined the Council, the transparency advocates were still recovering from that fight. Despite the risks of offending the P5, Australia soon emerged as an advocate of transparency within the Council. It worked well with the “Accountability, Coherence and Transparency” (ACT) Group, a coalition of states formed in May 2013 to restart the fight for a more open Council after the 2012 debacle. A diplomat from one of the leading ACT members describes Australia as an “excellent” partner.

Monday, July 14, 2014

Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1
"..that a comprehensive review of the FOI Act be undertaken."
And this concluding observation: 
"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."